The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles and an essay recently published by VJIL in Vol. 50:2, available here.
Today, Sean Watts, Assistant Professor, Creighton University Law School, will discuss his Article Combatant Status and Computer Network Attack. Professor Watts’s Article examines the critical question of combatant status in computer network attacks. Noting that few transformations in war rival the impact of computers and information networks on the conduct of hostilities, Professor Watts draws our attention to government-wide efforts to develop offensive capabilities—arsenals even—that include personnel organized and trained to launch offensive computer network attacks. In this environment, Professor Watts argues, an important question under the existing law of war is not simply against whom such attacks may be executed, but by whom. Noting that existing scholarship evaluates combatant status in computer network attacks under traditional criteria applicable to kinetic and line-of-sight warfare, Professor Watts argues that rote application of the Geneva Conventions to staffing of computer network attacks is outmoded and steers state practice into empty formalism. Professor Watts contends that computer network attack staffing should, instead, focus only on one of the Conventions’ enumerated combatant status criteria: state affiliation. Professor Watts concludes that an analytical framework based on state affiliation preserves the spirit and intent of the traditional criteria of combatant status, charting a course responsive to both textual and normative considerations.
Professor Geoffrey Corn of South Texas College of Law will serve as respondent.
On Tuesday, Kevin Kolben, Assistant Professor, Rutgers Business School, will discuss his Article Labor Rights as Human Rights?. In his Article, Professor Kolben argues that the recent turn to human rights discourse by labor advocates and labor law scholars, particularly in the United States, should be carefully analyzed and potentially rethought. Professor Kolben explores how a large and growing number of labor law and industrial relations scholars have argued that labor rights ought to be understood and conceptualized as fundamental human rights. Professor Kolben then discusses a parallel movement in which a growing number of labor rights organizations have begun to deploy human rights discourse and methods, while, at the same time, some international human rights scholars and organizations have also begun to direct some of their attention to questions of labor rights. Professor Kolben contends that there are salient differences between labor rights and human rights, not only in how these rights operate conceptually, but also in how these rights are actualized by their respective movements. Professor Kolben concludes that the strategies, politics, culture, and ideologies that inform human rights and much of the U.S. human rights establishment are quite at odds with those of labor rights movements, and a hard human rights turn by labor rights advocates risks eviscerating the fundamental commitments to economic justice and worker democracy in which the labor rights movement is grounded.
Professor Guy Mundlak of Tel Aviv University Buchmann School of Law will serve as respondent.
On Wednesday, Professor David H. Moore, Professor, J. Reuben Clark Law School, Brigham Young University, will discuss his Essay Medellín, the Alien Tort Statute, and the Domestic Status of International Law. Professor Moore’s Essay focuses on the import of the U.S. Supreme Court’s recent landmark decision in Medellín v. Texas, in which the Court addressed the domestic status of treaties in determining whether judgments of the International Court of Justice are judicially enforceable federal law. Although commentators have begun to sort out what the decision means for treaties in domestic law, Professor Moore argues that Medellín’s import reaches further than much of the literature has acknowledged. Professor Moore describes how Medellín narrows prospects for both treaty- and customary international law-based claims under the Alien Tort Statute. More significantly, Professor Moore argues that Medellín manifests the same separation of powers perspective as that reflected in the Court’s 2004 decision in Sosa v. Alvarez-Machain, thus supporting the “revisionist view” in the debate over the domestic status of customary international law. Professor Moore concludes that Medellín evidences the development of a uniform doctrine governing the status of both treaties and customary international law in the U.S. legal system—a doctrine under which the intent of the political branches, complemented by considerations of specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement, informs the domestic legal status of both sources of international law.
On Thursday, Daniel Abebe and Jonathan S. Masur, Assistant Professors of Law, University of Chicago Law School, will discuss their Article International Agreements, Internal Heterogeneity, and Climate Change: The “Two Chinas” Problem. Professors Abebe and Masur argue that the current scholarship on global agreements to control climate change—specifically proposals regarding China’s participation in a global climate change agreement—suffer from an important analytical error. Acknowledging the broad consensus that no agreement to control climate change can succeed without China’s participation, Professors Abebe and Masur nevertheless argue that the existing literature fails to understand both the critical regional heterogeneity within China and the Chinese Communist Party’s complicated internal structure. Professors Abebe and Masur contend that it is almost a misnomer to speak of a single “China.” Rather, they describe “Two Chinas”: prosperous Eastern China and developing Western China. And it is the presence of these Two Chinas, they contend, that greatly complicates any attempt to negotiate a meaningful international agreement on carbon emissions. Professors Abebe and Masur argue that the failure to consider China’s internal domestic challenges is an error carrying with it serious analytical consequences, including overly optimistic projections about China’s incentives to fight climate change. Professors Masur and Abebe explore the impact of internal political and economic dynamics on China’s interest in joining any such global agreement, concluding that it will be extremely difficult to reach a meaningful climate change accord in the immediate future.
We encourage you to join in the discussion online this week by sharing your questions and thoughts in the comment boxes below each posting. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.