In association with the International Commission of Jurists

National Security Law

18 Jan

The Washington Post asks (and answers) the following:
When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract. That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad. Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.
The "Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic" is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth. However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:
Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a "mini" status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.
To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the "2008 Iraq SOFA" (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.) By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer "without charge" from Syria to Russia of  "Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties" for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia:
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12 Jan

One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps...

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11 Jan

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we've seen several examples of countries that have simply chosen to "boycott" or not participate in the arbitral hearings whatsoever. China adopted this approach in its ongoing United Nations Convention on the Law...

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15 Dec

The UNCLOS Arbitral Tribunal formed to consider the dispute between the Philippines and China gave China until January 1 to file a response to the arguments made by the Philippines at its most recent merits hearing.  China had not showed up at any of the hearings, nor has it submitted any official written arguments to the Tribunal.   I don't know...

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25 Nov

Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the "Space Act"), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space...

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24 Nov

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime. So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul's conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive...

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18 Nov

I had the honor and pleasure of testifying today before the U.S. Senate's Environment and Public Works Committee.  The topic of the hearing was "Examining International Climate Negotiations" and the upcoming conference in Paris. My own contribution argued that an agreement with legally binding emissions reduction obligations should be submitted to the Senate as a treaty rather than as a...

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16 Nov

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V's collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama's ongoing use of military force against ISIS could be "legalized" as a matter of U.S. constitutional law.  Here is Ilya: Article 5 provides a much stronger justification for the war...

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13 Nov

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban -- and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US's notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller: International...

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