Author: Kenneth Anderson

German Constitutional Court Issues Temporary Injunction on Bailout

Der Spiegel Online reports that in the wake of the eurozone debt deal reached by European leaders last week, the German Constitutional Court has issued a temporary injunction against the Merkel government implementing its obligations until the court has ruled on whether the nature of the parliamentary action is lawful: Germany's Federal Constitutional Court on Friday expressed doubts about the legality of...

A Cybersecurity Treaty? Adam Segal and Matthew Waxman Think Not

Adam Segal and Matthew Waxman (among other things, both fellows at the Council on Foreign Relations) write at CNN.com on why the global cybersecurity threat leads many to believe that the only way to address this transnational issue is through a treaty — and why such a treaty is a pipedream.

The hacker – a government, a lone individual, a non-state group – stealing valuable intellectual property or exploring infrastructure control systems could be sitting in Romania, China, or Nigeria, and the assault could transit networks across several continents. Calls are therefore growing for a global treaty to help protect against cyber threats. As a step in that direction, the British government is convening next week the London Conference on Cyberspace to promote new norms of cybersecurity and the free flow of information via digital networks. International diplomacy like this among states and private stakeholders is important and will bring needed attention to these issues. But the London summit is also likely to expose major fault lines, not consensus, on the hardest and most significant problems. The idea of ultimately negotiating a worldwide, comprehensive cybersecurity treaty is a pipe dream. Different interests among powerful states – stemming from different strategic priorities, internal politics, public-private relationships and vulnerabilities – will continue to pull them apart on how cyberspace should be used, regulated, and secured. With the United States and European democracies at one end and China and Russia at another, states disagree sharply over such issues as whether international laws of war and self-defense should apply to cyber attacks, the right to block information from citizens, and the roles that private or quasi-private actors should play in Internet governance. Many emerging Internet powers and developing states lie between these poles, while others are choosing sides.

Segal and Waxman point out not only ways in which a treaty regime is likely an instance of overreaching that, were anyone actually to rely on it, is likely to fail.  They go on to present a positive agenda of steps that states can take in order to develop what amount to state practices aimed at consolidating looser norms of state behavior and best practices of states, without reaching to a treaty regime.

Richard Fallon on Law Professor Amicus Briefs

Harvard Law School's Richard Fallon has a new short, reflective essay expressing important concerns about the many amicus briefs that we law professors author, submit, and sign.  "Scholars Briefs and the Vocation of a Law Professor." (Via Volokh Conspiracy, and via Prawfs; the comment threads have some interesting points.) From the introduction:

With scholars’ briefs having the potential to influence the outcome of sometimes high-stakes litigation, requests to prepare them often come either from a party or from a firm or organization whose interests align with those of a party. Many law professors seem to like to draft, or at least collaborate with law firms in drafting, scholars’ briefs. For the professors who are asked merely to sign a scholars’ brief, participation may be even harder to resist. Dangled before them, with little or no work required, is the possibility of having an impact on the development of the law. As long as the brief supports the right side, it is hard for a professor who wants to influence the law's trajectory-as nearly all of us do-to say no. But law professors often should say no, or at least we should say no much more frequently than many of us now do. And when we say yes-as we should sometimes-we should insist that scholars' briefs reflect higher norms of scholarly integrity than many such briefs now satisfy. Or so I shall argue in this essay. In so arguing, I hope to spur an overdue discussion.

Banning Statements by the Rating Agencies as a Form of ‘Seditious Libel’

Eugene Volokh comments on reports that the EU is considering legal bans on statements by rating agencies in some circumstances of countries engaged in re-negotiation of their sovereign debt.  He quotes Spiegel Online regarding comments and a draft law report by the EU internal market commissioner: In an internal draft of a reform to an EU law applying to ratings agencies...

Law, Governance, and the Eurozone

The eurozone is on the verge of meltdown, taking whole economies and banking systems with it, and spreading to the US through the systemic interwiring of the international financial system.  Or not.  European meetings to avert disaster are coming unglued and the moment when the markets simply stop turning over debt and re-lending is finally at hand, with a tipping...

Judge Antonio Cassese, Ave Atque Vale

Opinio Juris learns with sadness of the passing of Judge Antonio Cassese, one of the pioneers of international criminal justice, following a long battle with cancer.  If you like, leave any remembrances or tributes in the comments.  For my part, I remember Judge Cassese most from the 1980s, at various international humanitarian law meetings, and then particularly around the time...

Why the CIA and Drones?

A quick follow-up to Chris' post below - this started as a comment, but got too long, so I'm putting here as a general comment.  The question is one that many of us have asked from the outside, why the CIA in the conduct of drone operations?  And the implied broader questions, is it legal and anyway why is it a good policy idea, even if it is legal, for the CIA to be engaged directly in use of force operations?  The comment that follows is not attempting to defend a position; I'm just repeating in summary form what I've been told over the last few years by people here in Washington when I've asked these questions.  Take them for what they are worth; I'm not an insider to government and have no access to anything secret of any kind.  (Also, I would love to know Bobby Chesney's answers to the same questions, as an side inquiry to his project examining the legal issues in the merger of Title 10 and Title 50 operations - even just an informal comment on this would be useful.)  It goes on for a while, so I'll put it below the fold.

Eyes on Spies

Over the weekend, I read Amy B. Zegart’s new short book, Eyes on Spies, which deals with the persistent failures of Congress to engage in effective intelligence oversight.  (The book is in a Hoover Institution Press series that features short books — brisk and brief, readable in a single plane flight — focused on a single topic.)  I think the book is excellent and here is my review. A short bit:

“Primeval Anarchy” … I Didn’t Write This

Via The Multilateralist, a speech by Shiv Shankar Menon, a former Indian foreign minister and senior security official: "[W]hile domestic societies have evolved or are evolving towards rule of law, international society is still much closer to primeval anarchy...

BU Law School’s “Ten Years In” Conference

Congratulations to Professor Robert Sloane and BU Law School for a fine conference yesterday, “Ten Years In: Appraising the International Law of the ‘Long War’ in Afghanistan and Pakistan.” The conference was co-sponsored by the ASIL Lieber Society and the Naval War College. Update: Peter Margulies contributed a terrific summary of the panel sessions, posted here at Lawfare. The first panel addressed the future of COIN, and it included Professor Andrew Bacevich — not a lawyer, of course, and instead speaking as a well-known strategist, and lending an important interdisciplinary voice.  He offered a blistering critique of COIN (and pretty much every other strategic option as well, including counterterrorism via drones, I should add).  I was part of the second panel, on targeted killing and drones.  Michael Schmitt of the Naval War College offered a vigorous defense of drones as being essentially like any other weapon system, and on this occasion, at least, it was interesting to see how much agreement there was between him and Human Rights First’s Gabor Rona.

China’s Security Council Diplomacy

David Bosco, my American University colleague and author of the always interesting The Multilateralist blog at Foreign Policy, has posted an interview between him and Joel Wuthnow (Princeton’s China and the World Program) on China’s diplomacy at the UN Security Council.  Among many interesting exchanges, this comment on China’s overall role in the world: The mainstream thinking in Beijing is that China should avoid...

UCLA Law Forum on the ICC – Prevention Discussion Topic

UCLA Law School's Sanela Daniela Jenkins Human Rights Project has a special joint online forum with the ICC office of the prosecutor, which is currently running commentary on the question of prevention, and how the ICC can maximize its crime prevention impact.  It features contributions from a variety of experts from a variety of perspectives - Tomer Broude, Bill Burke-White,...