Recent Posts

I Sing of MAARS and a Robot

by Chris Borgen

Defense One points to a news story in the Baghdad Post that the Iraqi Security Forces may be preparing to deploy a ground-combat robot:

Loosely dubbed Alrobot — Arabic for robot — it has four cameras, an automatic machine gun, and a launcher for Russian-made Katyusha rockets, and can be operated by laptop and radio link from a kilometer away, the [Baghdad Post] story says.

One point is important to emphasize, the Alrobot is a remotely-controlled four-wheeled drone, it is not an autonomous weapon. By contrast, an autonomous weapon would be, in the words of a recent article from the Institute of Electrical and Electronics Engineers, “capable of selecting and engaging targets without human intervention.”

However, while the Alrobot would not be autonomous, Defense One also notes that it will also not be the first remotely-controlled battlefield weapon deployed in Iraq:

Back in 2007, the U.S. Army deployed three armed ground robots called the Special Weapons Observation Reconnaissance Detection System, or SWORDS, from weapons maker Foster-Miller (now owned by Qinetiq). SWORDS basically consisted of a Foster-Miller TALON robot armed with a machine gun.

However, the SWORDS unmanned ground vehicles (UGV’s) were never used on patrol. A 2008 Wired article (to which Defense One linked) explained in an addendum:

Senior Army leadership, however, was not comfortable with sending them out to do combat missions due to safety reasons, and they are now placed in fixed positions, said Robert Quinn, vice president of Talon operations at Foster-Miller…

It seems to be a “chicken or the egg” situation for the Army, he said. The tactics, techniques and procedures for using armed ground robots have not been addressed.

But until there is an adequate number of SWORDS to train with, these issues can’t be worked out, he said.

.A successor weapons system, the Modular Advanced Armed Robotic System (MAARS) is currently being developed by QinetiQ. Like its predecessor, MAARS would  not be an autonomous weapon, but a remotely-controlled battlefield robot with humans making the tactical decisions. Consequently, the legal issues here would be less like the many concerns stemming from using artificial intelligence to make targeting and live-fire decisions, but rather would be similar to the legal issues arising from the use of armed unmanned aerial vehicles (UAV’s). Possible questions would include whether the use of the cameras and other sensors on the UGV would allow its operator to adequately discriminate between combatants and noncombatants. Does inserting an remotely-controlled armed robot make one more likely to use force? Under what situations would using such a system be disproportionate?

This may depend, in part, on how such systems are deployed. There could be different legal implications in using a UGV to, for example, “stand post” to guard the perimeter of a platoon that is out on patrol in a remote mountainous region as opposed to using a UGV in an urban combat situation where there are many civilians in close-quarters. The U.S. Marine Corps, for example, is considering when and how the use of weapons like MAARS would be appropriate.

For another recent post on robots and regulations, see my post from earlier this summer.

Alexander Hamilton, the New Republic, and the Law of Nations

by Chris Borgen

There’s this musical on Broadway. It’s called Hamilton.  You might have heard of it. It’s causing legal scholars to say things like “I admired Hamilton since before he could rap,” and “My Shot has a pretty good lyric but have you tried Federalist no. 6?”

Anyway, a short note on A. Ham. and the law of nations seems in order.  For the following, I am particularly indebted to  Mark Janis’ book America and the Law of Nations 1776-1939 (Oxford 2010), David Bederman’s volume The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge 2008) and Hamilton’s Republic (The New Press 1997), a compilation of writings by Alexander Hamilton and later “Hamiltonian” writers edited and introduced by Michael Lind. These authors and others writing about Hamilton do not necessarily come to the same conclusions regarding his views on what we now call international law, but rather provide  varying perspectives on a complex man.

By way of background, the views of the founders were in part shaped by their education in classical history as well as Enlightenment philosophy.  David Bederman, in his study of classical thought and the U.S. Constitution, wrote that “[s]tarting first with classical writers in Greek, the Framing generation particularly prized the works of Plato, Aristotle, Thucydides, Polybius, and Plutarch, in that rising order of esteem.” (Bederman, 15.)   Thucydides’ international realism and Polybius’ conception of a “mixed constitution” combining monarchy, oligarchy, and democracy were especially influential on the founding generation. Hamilton was particularly fond of quoting Plutarch, whose biographies combine issues of public policy and state building with individual moral choice. (Bederman,16-17; 22.) Hamilton and other founders may have used “instrumental classicism,” to support their political arguments, but they also did a “reputable job in trying to make sense of antiquity,” with Hamilton among the “best” classicists. (Bederman, 228.)

Beyond classical history and philosophy, the founders were also influenced by Enlightenment philosophy and, as a group, were well-versed in the 18th century law of nations and often referred to it in their writings. Mark Janis, in the first volume of his history of the United States and international law, argued that “[n]o group of America’s leaders have ever been more mindful of the discipline[of international law] than were the Founding Fathers.” (Janis, 24.)

In relation to studies in natural law at Kings College (later, Columbia University), Alexander Hamilton suggested in 1775 a reading list of “Grotius, Pufendorf, Locke, Montesquieu, and Burlemaqui.” (Janis, 24-25.) This shows, at least, his exposure to foundational texts of international law.  However, suggesting a reading list on natural law and actual application of the law of nations in practice are two different things. So, how concerned was Alexander Hamilton with the application of the law of nations to the “young, scrappy, and hungry” republic?

Here we can see some divergence in interpretation by scholars. Janis notes that in 1795 Hamilton (more…)

I’d Like to Be Under the South China Sea in a Crewed Deep Sea Platform in the Shade

by Chris Borgen

Earlier this week, Julian and I each posted about the international legal issues of the Moon and asteroid mining plans of U.S. companies. Those projects may have sounded like something out of Space 1999 but now we hear of one of China’s near-term priorities that sounds like SeaLab 2020.

Bloomberg reports:

China is speeding up efforts to design and build a manned deep-sea platform to help it hunt for minerals in the South China Sea, one that may also serve a military purpose in the disputed waters.

Such an oceanic “space station” would be located as much as 3,000 meters (9,800 feet) below the surface…

This would be by far the deepest long-term undersea facility (as opposed to a deep sea vessel, such as a submarine). By way of context, the NASA Extreme Environment Mission Operations Facility (NEEMO), the “world’s only undersea research station” is anchored at a depth of 62 feet.

China’s leadership explains that, in part, this base will help with a new frontier of resource development, using rhetoric that is at times similar to the arguments some make concerning private space ventures on the Moon and asteroids:

President Xi Jinping said at a national science conference in May: “The deep sea contains treasures that remain undiscovered and undeveloped, and in order to obtain these treasures we have to control key technologies in getting into the deep sea, discovering the deep sea, and developing the deep sea.”

But, beyond looking for deep sea resources, the concern is that the base is part of China’s gambit for sovereignty over much of the South China Sea.  However, while establishing this undersea platform may become part of China’s political argument for its sovereignty claims, it does nothing to support the legal argument. Under the UN Convention on the Law of the Sea (UNCLOS), this undersea platform would probably be treated as an “artificial island,” like an oil rig.  At the time that UNCLOS was being drafted, large undersea bases were more the province of James Bond movies than treaty negotiations, so the closest analogy in the text is what would likely be applied in this case.  (For a discussion on sea platforms, “seasteading,” and sovereignty claims by non-state actors, see this post.)

Although it is not clear where the location of this undersea lab would be, UNCLOS has similar provisions concerning artificial islands located in an Exclusive Economic Zone (article 60) or on the continental shelf (article 80, which refers back to the article 60 text, with any applicable adjustments).

The text from article 60 states:

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

So, in short, building this base would not change China’s territorial rights.

However, the concern is that, while it may not help the legal argument, another goal of the base may be to bolster the political argument with some military muscle. The Bloomberg article quotes the following:

“To develop the ocean is an important strategy for the Chinese government, but the deep sea space station is not designed against any country or region,” said Xu Liping, a senior researcher for Southeast Asian affairs at the Chinese Academy of Social Sciences, a government-run institute.

“China’s project will be mainly for civil use, but we can’t rule out it will carry some military functions,” Xu said. “Many countries in the world have been researching these kind of deep water projects and China is just one of those nations.”

Whether China actually builds this base–and if so, where–remains to be seen. If it does so, it will also be interesting to assess whether the base turns out to be most useful as a scientific research facility, a political gambit, or a military base.

U.S. and India Agree to Jointly Push for the Most Important-Sounding Treaty You’ve Never Heard of

by Julian Ku

India’s Prime Minister Narendra Modi visited Washington D.C. this week to meet with President Obama.  Buried in their joint statement, the two leaders reiterated their support for an important-sounding treaty that I, nonetheless, had never heard of:

27) The leaders affirmed their support for a UN Comprehensive Convention on International Terrorism that advances and strengthens the framework for global cooperation and reinforces that no cause or grievance justifies terrorism.

The CCIT (draft text here) was proposed by India in 1996. In a nice illustration of just how slow the process of treaty making can take in the U.N. system, the treaty has languished in the 20 years since  in an “Ad Hoc Committee” and then in a “working group of the Sixth Committee of the United Nations General Assembly.”   Apparently, it continues to languish there due to disagreements over the application of its definition of terrorism to military forces and its application to “national liberation forces” (a 2014 public discussion is posted here).  Here is the definition in the draft text.

1. Any person commits an offence within the meaning of the present Convention if that person, by any means, unlawfully and intentionally, causes:
(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or to the environment; or
(c) Damage to property, places, facilities or systems referred to in paragraph 1 (b) of the present article resulting or likely to result in major economic loss; when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

This is a pretty bland and uncontroversial definition.  The “working group” is supposed to be close to finalizing the text, but they have been “finalizing” since 2013.  It sounds like the treaty’s definition of terrorism needs an exemption for military forces (that seems doable) and an exemption for “liberation movements resisting foreign occupation” (that seems not so doable).

I suppose it would be a big deal if a CCIT was adopted since it would commit the world to a broad single definition of terrorism.  Then again, there are already at least 19 terrorism-related conventions, and it is hard to tell how much of a difference they make. The problem doesn’t seem to be a failure to sign international anti-terrorism treaties, but compliance with them.

On the other hand, there does seem to be value in pushing this position: “no cause or grievance justifies terrorism.”  This is a view that not only the U.S. and India, but also China, Russia, and the EU can get behind.  It will be interesting to see if this coalition can overcome the opposition of the Organization for Islamic Cooperation (OIC) states who seem worried only about protecting the rights of the Palestinians to “resist” the Israeli occupation.  India seems gung-ho about this treaty, so it will be interesting to see if they can push it along (with U.S. help).

Abkhazia Defeats Panjab in Overtime for ConIFA World Football Cup

by Chris Borgen

I know Opinio Juris is probably not where you come for sports updates but this is the result of the ConIFA World Football Cup, a tournament among unrecognized regimes, minorities, and stateless peoples.

For more on ConIFA, statehood, and nationalism, see my post from last week.  In short, the ConIFA competition may be an attempt not only to boost morale within unrecognized regimes, ethnic enclaves, and stateless people, but also remind the rest of the world of the claims that these groups have, be they claims of statehood or simply a desire to be recognized to exist as a people. Consider the following from an article posted by Al Jazeera:

…CONIFA’s president Per-Anders Blind explained how this World Cup has nothing to do with politics and borders.

“Our aim is to show that football can be a tool to bring our members to the global stage. We all have the same right to exist,” he said.

Chewing on a little pouch of “snus’, a Swedish chewing tobacco, Blind described how the idea for the CONIFA World Cup was inspired by his own life experience.

“My father is a reindeer herder in the Swedish and Norwegian mountains. I was born and raised as part of a group of forgotten people, the Sami, and endured discrimination because of that.”

Blind’s comments are reminiscent of the Olympic ideal to “use sport to foster peace and reconciliation, underlining the power of the Games to promote tolerance and solidarity among the participants, fans and people all over the world.”  Perhaps the founders of ConIFA were frustrated that membership international sports organizations such as the International Olympic Committee and (particularly relevant to ConIFA) FIFA, was too intertwined with statehood to extend these ideals to unrecognized regimes and stateless peoples. As the ConIFA website states, echoming the Olympic ideal,

CONIFA aims to build bridges between people, nations, minorities and isolated regions all over the world through friendship, culture and the joy of playing football. CONIFA works for the development of affiliated members and is committed to fair play and the eradication of racism.

But it can be difficult to set aside issues of politics, borders, and laws when the membership of ConIFA is practically defined by its tension with existing borders, politics,and/ or laws. While the structures of the International Olympic Committee and FIFA may favor recognized states, the tournament organization of ConIFA itself steps from the sports field into the arena of high politics.   Abkhazia, the Georgian breakaway region, not only won the tournament but was also the host. While the tournament may be a morale-booster for the population of Abkhazia, it was played in territory that Georgia views was taken from it by a Russian military invasion.   The Al Jazeera article notes that:

Georgian officials have complained that the CONIFA tournament is illegal since it it lacks Georgia’s authorisation within what it considers to be its territorial boundary. According to Georgian law, participants entering Abkhazia through Russia would be entering Georgian territory illegally.

The ConIFA World Football Cup symbolizes different things for different people. For some, it is an affirmation that they, too, matter. For others, the tournament is affront to the rule of law. And for some, it might just be a chance to watch the home team play a game of soccer. In any case, though, it matters.

Videos and summaries of the games are available at the ConIFA website. (And, by the way, Northern Cyprus beat ConIFA heavyweights Padania for the third place trophy.)

Should the U.S. Approve a Commercial Moon Mining Venture?

by Chris Borgen

Well, Julian beat me to the punch by a few minutes, but here’s my take…

The Wall Street Journal reports:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

It also would provide the biggest federal boost yet for unmanned commercial space exploration and, potentially, the first in an array of for-profit ventures throughout the solar system.

Moon Express is a company looking towards extracting resources from the moon. They explain on their website:

Most of the elements that are rare on Earth are believed to have originated from space, and are largely on the surface of the Moon. Reaching for the Moon in a new paradigm of commercial economic endeavor is key to unlocking knowledge and resources that will help propel us into our future as a space faring species.

There are a variety of different business models for the growing commercial space industry. Some companies are focused on providing launch services for ferrying cargo and crew to orbit and beyond (SpaceX, United Launch Alliance), others have models based space “tourism” (Virgin Galactic), or providing the modular building blocks of space habitats (Bigelow Aerospace) or extracting resources from asteroids or the moon (Planetary Resources, Moon Express). It is this last business model, resource extraction,  that particularly challenges existing regulatory structures, the Outer Space Treaty and  the Moon Agreement.

The U.S. is not a party of the Moon Agreement. However, it is important to note that the Agreement states, in part:

Article 11

1.       The moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement and in particular in paragraph 5 of this article.

2.       The moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.

3.       Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article…

7.       The main purposes of the international regime to be established shall include:

           (a)    The orderly and safe development of the natural resources of the moon;

           (b)    The rational management of those resources;

           (c)    The expansion of opportunities in the use of those resources;

           (d)    An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.

[Emphases added.]

Julian and others discussed similar provision in the Outer Space Treaty in relation to asteroid mining in  these posts and  comments: 1, 2.

Based on this text,  some have argued that one cannot mine the Moon or asteroids for private profit.  Julian has set out in his posts an interpretation of the OST language that would allow private ventures.  Others, such as Richard Bilder, have concluded that the regulatory uncertainties regarding mining the Moon argues in favor of constructing a clear multilateral legal regime.

International law can play an important role in this burgeoning field. Rather than attempting to ban such mining enterprises, international law can provide a framework so that such ventures can have greater certainty and better assess risks, as well as have certain limits on their activities. A multilateral agreement can recognize the property rights of companies extracting resources, define where resources can and cannot be extracted, define a regime of noninterference among mining ventures (there are broader noninterference norms in the existing OST and Moon Agreement), and so on. Such an agreement would appreciate the opportunities of this new frontier of exploration and economic activity but also provide some reasonable bounds to avoid conflict, avoid the wasteful degradation of asteroids or the moon, and ban certain activities that could endanger the public. I am skeptical of any attempts, though, at large-scale wealth redistribution. That did not work in the UN Convention on the Law of the Sea (and needlessly hampered the acceptance of an important treaty)  and I see no reason why there would be a different outcome here.

This is why the U.S.’s taking a step forward to approve a private mission my a moon mining company has significant implications.  The Journal continues:

The expected decision, said the people familiar with the details, is expected to set important legal and diplomatic precedents for how Washington will ensure such nongovernmental projects comply with longstanding international space treaties. The principles are likely to apply to future spacecraft whose potential purposes range from mining asteroids to tracking space debris.

Approval of a formal launch license for the second half of 2017 is still months away…

But this is only the first of many steps that U.S. companies may be taking in private space exploration. Elon Musk has announced that SpaceX plans to send an uncrewed lander to Mars around 2018 and a crewed mission around 2026. If that timetable holds, and if states do not jumpstart their Mars programs then the first person on Mars will have been sent by a private company, not a national space program (The key word, of course, being “if.”) I believe the current NASA scenario is to land a crew sometimes in the mid 2030’s.

Although US companies are currently the main actors in these private space ventures, that will not always be the case.  These are early days, still. The “commercial space race” is still among toddlers. But those baby steps quickly become small steps. And then giant leaps.

To answer the question of the title of this post: should the U.S. approve this commercial moon mining venture? If it meets U.S. regulatory requirements and in the absence of clear international law to the contrary: Yes.

But it is also in the interest of American companies, and the US as a whole, to clarify multilateral regulations concerning the commercial exploitation of the Moon and other celestial bodies.  Now is the time to define some ground rules for everyone in the space race.

 

U.S. Government Prepares to Approve First Private Space Expedition to the Moon

by Julian Ku

This is big.  Huge, even. From the Wall Street Journal:

U.S. officials appear poised to make history by approving the first private space mission to go beyond Earth’s orbit, according to people familiar with the details.

The government’s endorsement would eliminate the largest regulatory hurdle to plans by Moon Express, a relatively obscure space startup, to land a roughly 20-pound package of scientific hardware on the Moon sometime next year.

The main obstacles to this commercial moon mission are not technical or financial. The main problem appears to be legal.  First, the U.S. government must approve the launch (this appears to be happening soon).  Second, the U.S. and the world need to figure out how to regulate commercial exploitation of the moon, because companies like “Moon Express” are not in this for the science alone.  The Moon Treaty seems to prohibit any commercial exploitation of the Moon’s resources under Article 11 (“[N]atural resources of the moon… shall [not] become the property of any ..person”), but the U.S. never ratified it and neither did any of the other major spacefaring nations.

So we are left to the “Outer Space” treaty, which the U.S. did join, but which has much less emphatic limitations on commercial development of celestial resources (as I argued here and here).  I think it is safe to say commercial exploitation of the moon and asteroids is going to happen sooner than we think (starting next year?).  The law will have to catch up later.

The Corporate Joust with Morality

by Caroline Kaeb and David Scheffer

[Caroline Kaeb is Assistant Professor of Business Law and Human Rights at the University of Connecticut.  David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern Pritzker School of Law. They are co-chairs of the Working Group on Business and Human Rights of the U.N. Global Compact’s Principles for Responsible Management Education.]

The corporate world is struggling with two competing visions of corporate ethics as the governance gap in national capitals stymies effective responses to global challenges.

The first vision gaining steam in recent years has been a form of corporate activism we call “corporate counterattack.”   Some major multinationals are increasingly challenging and indeed changing poorly conceived government policies or occupying the policy void.

Take the United States. Last year Apple, Angie’s List, Anthem, SalesForce, Roche Diagnostics, Cummins, Eli Lilly, and companies headquartered in Indiana successfully brought heat down on Governor Mike Pence to amend legislation that had allowed businesses, citing religious freedom, to discriminate against gays and lesbians.  The uproar caused the state initially to lose perhaps dozens of conferences and $60 million of anticipated revenue. Walmart similarly counterattacked against discriminatory legislation in Arkansas.

Google and other multinational corporations in the deep South balk at operating in states that glorify the Confederate flag or enact legislation undermining minority rights.  The latest examples are North Carolina and Mississippi, where laws discriminating against gay, lesbian, bisexual and transgender people have prompted strong corporate reactions. PayPal cancelled a $3.6 million investment in North Carolina. Google Ventures froze new investments in the state and other companies are reconsidering their plans. Over 140 CEOs and business leaders of such corporations as Facebook, Bank of America, and Apple signed an open letter to North Carolina Governor Pat McCrory opposing that state’s new law. Such giant corporate employers as Tyson Foods, Nissan, Toyota, and MGM Resorts International have loudly protested Mississippi’s regressive law. These collective business voices challenge state governments to protect human rights while such public authorities seek their corporate investments.

Meanwhile, in Europe some corporations have addressed the humanitarian crisis swamping that continent with philanthropy and commitments to train and employ migrants, including refugees, from the Middle East and North Africa. A newly-formed partnership of companies, including McDonald’s, MasterCard, Facebook, and DreamWorks Animation, generates private funds for the World Food Programme to feed millions of migrants by providing free ad time and access to digital promotion.

This stands in contrast to the chaos that unfolded on the European continent as governments swung further to the right and shut their borders, lacking any “big ideas” as human misery cloaked the endless flow of destitute individuals. The governance gap in Europe, North Africa, and the Middle East shows few signs of narrowing, thus assigning even greater responsibility to corporations that are willing to act boldly and innovatively to address humanitarian needs.

In early 2015 Sony Corporation marketed “The Interview,” not only for revenue but also in defense of freedom of expression after North Korea, or its agents, apparently launched cyber-attacks on the company so as to intimidate it into locking up the comedy critical of Kim Jong-un.

In the wake of recent terrorist attacks in Europe and the United States, internet giants struggle to find the right balance between privacy and security in the face of calls for more government surveillance and information sweeps that would impinge upon privacy rights globally.  For example, Apple recently refused a lower federal court order to reverse engineer a dead terrorist’s locked iPhone in San Bernardino, California, so as to gain password access and thus assist the FBI in its investigation of the deadly terrorist attack in that city. Ultimately the FBI used other means to access the iPhone.

National security concerns are of vital importance. But Washington’s insistence that Apple develop software to unlock the privacy of the iPhone is potentially dangerous. It exposed Apple and other cyberspace companies to comparable demands by repressive governments and even other democracies that will be inspired to compel corporate complicity in undermining human rights protections for spurious national security priorities. Among the victims might be human rights activists and political dissidents seeking to advance principles embodied in the American Bill of Rights and international human rights treaties.

In defense of freedom of expression, Google has fiercely challenged an extension of the European privacy right to be forgotten to non-European Union internet domains (such as google.com), regardless of whether the information was accessed from within the EU or anywhere else in the world. This is an example of competing public policy priorities that need to be weighed and possibly balanced with one another, and business has a vital role to play in that process.

None of these companies perfectly embraces principles of social responsibility and sometimes they overlook human rights or environmental standards in one part of the world while embracing them in other societies.  But there is no shortage of opportunities being seized by multinational corporations to significantly influence the protection of human rights and advance worthy social policy goals.  Fifteen years of growing corporate participation in the United Nations Global Compact, with its pledges on human rights, labor, environment, and anti-corruption, demonstrate a mindset shift that generates constructive societal contributions and a growing body of counterattacks against regressive or failed public policies.

However, there are fierce winds blowing against such initiatives.  The second and darker vision of corporate ethics remains wedded to short-term profits regardless of societal impact and even if fraudulently obtained.  The colossal Volkswagen deceit, where 11 million diesel-fueled and supposedly eco-friendly vehicles were apparently rigged to cheat on emissions tests, blatantly screamed “go to hell” to corporate social responsibility.  Coca-Cola paid scientists to argue that physical exercise is the antidote to high-sugar drinks, so consumers were encouraged to keep chugging and then jogging off the fat while Coke prospers.

General Motors, which settled with the Justice Department for $900 million, ignored and then delayed reacting to an ignition flaw in its vehicles that resulted in 124 deaths and 275 serious injuries. One young tycoon, indicted on securities fraud, shamelessly inflated the price of a 62-year old drug to treat serious infections from $13.50 to $750 and thought that was just fine in a world ruled by hedge funds.  A chief executive was recently sentenced to 28 years in prison for knowingly shipping peanut butter laced with salmonella, killing nine people and inflicting illness on at least 700 others.

Without waiting for government mandates, major corporations are joining a growing global coalition to convert to renewable energy sources.  But for decades Exxon Mobil aggressively funded climate change deniers despite the role of carbon-based fuels in that scientifically proven man-made phenomenon. Over the years, 62 resolutions have been introduced at shareholder meetings to compel the company to confront the reality of climate change in its operations and investments. But management and a majority of shareholders have voted down each of those resolutions, including 11 of them at the last shareholders meeting in May. Divestment campaigns by activists continue to dog Exxon Mobil. At least Rex Tillerson, the company’s chief executive, recently reiterated Exxon Mobil’s support for a carbon tax and further studies of the “risk” of climate change.

Former Massey Energy CEO Don Blankenship is now serving a one-year sentence in federal prison following the deaths of 29 miners he employed. He must have thought, as he managed one of the largest energy companies in America, that he could somehow evade fundamental coal mine safety standards and speak and act as if he was just barely crawling out of the Dark Ages of labor rights, and hence human rights.   If Blankenship took just one refresher course at any leading business school today, could he possibly walk out of that class with the same reckless views he exhibited on the job for years? Perhaps he would, which is why focusing on what business schools, and what they teach business students in core management classes as well as business practitioners in their executive programs, is important to review and get right. This entails teaching the protection, enforcement, and indeed advancement of human rights and other societal imperatives within the corporate world. It is in business schools in particular where it all starts, to shape the students’ minds to do rights-based business in the 21st Century.

This duel between corporate responsibility and corporate deceit and culpability is no small matter.  The fate of human society and of the earth increasingly falls on the shoulders of corporate executives who either embrace society’s challenges and, if necessary, counterattack for worthy aims or they succumb to dangerous gambits for inflated profits, whatever the impact on society.

The fulcrum of risk management must be forged with sophisticated strategies that propel corporations into the great policy debates of our times in order to promote social responsibility and thus strengthen the long-term viability of corporate operations.  We believe that task must begin in business schools and in corporate boardrooms where decisions that shape the world are made every day.

Weekly News Wrap: Monday, June 6, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: June 5, 2016

by Jessica Dorsey

Event

  • Between Europe and the United States: The Israeli Supreme Court in Comparative Perspective is being held Monday, June 27, 2016 – 9:00am to 6:00pm at the Benjamin N. Cardozo School of Law. For more information, click here. Despite a shared commitment to constitutional norms and a shared intuition that constitutional norms reflect universal principles, the United States and Europe interpret constitutional norms in markedly different ways. To take but one example, European privacy norms are shaped largely around the concept of dignity and inherited ideas of honor, whereas American privacy norms have historically rested on the value of liberty, especially liberty vis-à-vis the government. Both systems shape constitutional norms against the background of their distinct social and political traditions. Israel is poised between these two older legal cultures and is in dialogue with both. Does Israeli constitutional jurisprudence share more with Europe or with the United States?  Do particular social and political ideas within Israeli legal culture account for the disparate alliances? What are the particular areas in which Israel shows an affinity for one or the other, or neither, legal tradition?
    The conference is free and open to the public, but an RSVP is requested. Please email ISCP [at] yu [dot] edu with your name, affiliation and contact information.

Call for Papers

  • Gas: we breathe it, we burn it, we weaponise it, we control it. Whether banned, regulated or free-flowing, gas is our immediate environment, connecting us, keeping us warm, keeping us cool, creeping through the cracks. Explosive or sedative, it facilitates killing and curing alike. Gas leaks, escapes, and traverses boundaries, including legal boundaries. Certain gases are subject to international law, but even the most regulated gases may escape, or be unleashed. The London Review of International Law invites submissions on the subject of gas. These may touch on specific regimes regulating particular gases or groups of gases, they might look at historical processes centring on the control or release of (manufactured or natural) gases, or they might focus on the background role gas has played behind international legal processes, whether in relation to energy, climate, war, or simply the conditions of lawmaking, law enforcement, or legal speculation. Guidelines for submissions can be found under ‘Instructions to Authors’. In addition to articles, proposals for review essays and photographic (or other image-based) essays will be very welcome. Abstracts of no more than 500 words should be sent to a [dot] z [dot] wu [at] lse [dot] ac [dot] uk?subject=CFP%202017%20special%20issue%20on%20the%20theme%20of%20%27gas%27″>Aaron Wu (a [dot] z [dot] wu [at] lse [dot] ac [dot] uk) not later than 15 June 2016. Respondents will be notified of the outcome of their proposal not later than 1 July 2016.

Announcements

  • Oil Gas and Energy Law 2 (2016) is now out – Emerging Issues in Polar Energy Law and Governance, prepared by Dr Tina Hunter (Aberdeen University Centre for Energy Law), this special on Emerging Issues in Polar Energy Law and Governance provides a up-to-date analysis of many aspects of a rapidly changing region, and the legal issues that dominate the Polar regions.
  • Di Tella University, from Argentina, is delighted to announce that the fourth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. LADI’s fourth issue includes articles by William Schabas, Roberto Gargarella, and Alejandro Chehtman, as well as discussions about international criminal law in the Americas, the role of international law in the early history of Latin America, and foreign debt restructuring, amongst others. The latest issue can be found here.  

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Why the World Cup of the Unrecognized Matters [Updated]

by Chris Borgen

States and nations are not the same thing.  A nation is a “people,” itself a difficult concept to define under international law. A state is a recognized political entity that meets certain criteria. International lawyers will tell you that the characteristics of statehood include a defined territory, a government, a permanent population, and the ability to enter into foreign relations.

State formation in the 19th century and also right after World War I often sought to build states for nations (hence the term “nation-state”) but the terms are not coterminous.

So what are the hallmarks of nationhood? Many know in their hearts that there may be no more important mark of nationhood than a national soccer team. C’mon, you know it’s true.

And sometimes, peoples would like to remind you that they are nations—if not states!—and want to be recognized as such (nations or states, it gets a little blurry).

So, pay attention, soccer fans and international lawyers, because this weekend will be the final match in the 2016 Confederation of Independent Football Associations (ConIFA) World Football Cup, sometimes referred to as the World Cup of the unrecognized.  According to this NPR report, host Abkhazia is the current favorite after Western Armenia and Kurdistan were unexpectedly eliminated.

The first ConIFA World Football Cup was played in 2014 and seems to be the successor to the VIVA World Cup, about which I had previously written.

ConIFA should not be confused with FIFA, the international federation of football associations. As I had explained in a post from a couple of years ago, membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, as England and Wales are separate associations, they have separate World Cup teams. Nonetheless, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Thus, although membership in FIFA is technically not based on statehood, the process largely relies on statehood and state-based football organizations (but for noted exceptions, such as England and Wales). Consequently, unrecognized entities such as South Ossetia and Nagorno Karabakh have little chance of seeing their football associations become part of a confederation, let alone FIFA.

Now consider ConIFA’s  membership rules, which are linked not to statehood, but to “nationhood” or being a “people”:

CONIFA is made for national teams that represent a nation which is not a member of FIFA (yet). For that reason only non-members of FIFA can join CONIFA. The second requirement is that the applicant is represent of a nation. The following table explains in detail what we consider a “nation”:

1.The Football Association is a member of one of the six continental confederations of FIFA.

2. The entity represented by the Football Association is a member of the IOC.

3. The entity represented by the Football Association is a member of one of the member federations of ARISF.

4. The entity represented by the Football Association is in possession of an ISO 3166-1 country code.

5. The entity represented by the Football Association is a de-facto independent territory.

6. The entity represented by the Football Association is included on the United Nations list of non-self-governing territories.

7. The entity represented by the Football Association is included in directory of countries and territories of the TCC.

8. The entity represented by the Football Association is a member of UNPO [Unrepresented Nations and Peoples Organization] and/or FUEN [Federal Union of European Nationalities].

9. The entity represented by the Football Association is a minority included in the World Directory of Minorities and Indigenous Peoples.

10. The entity represented by the Football Association is a linguistic minority, the language of which is included on the ISO 639.2 list.

Every Football Association that fulfills at least one of the above criteria is very welcome to apply for CONIFA membership!

[Emphases and bracketed text added.]

As for the aspiration of at least some of these entities to become generally recognized as states, consider the parenthetical “(yet)” from the first sentence.

And why might a a sports tournament be important to people with much bigger issues to worry about? Because you can cheer your team, wave your flag, feel a sense of unity, sing when your winning and… yes, you can actually win. And if you don’t there’s always next year.

When you live in an unrecognized regime, you take your wins where you can get them.

Whether any of these associations become part of FIFA, let alone whether or not those entities that also seek to be recognized as states will ever achieve that goal, is a long and doubtful journey.  But in many cases that is due to reasons of military intervention, history, and/or international law. For today, there is a football to be played.

President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]