General

Weekend Roundup: April 28 – May 4, 2012

This week on Opinio Juris, Chen Guangcheng’s escape to the US Embassy in Beijing did not go unnoticed. In a first post, Julian Ku discussed how Chen would not get political asylum at the Embassy. Peter Spiro followed up with his thoughts on diplomatic asylum. After Chen’s departure from the US Embassy, Julian asked whether the US or China violated international law. Julian also had a closer look at the content and legal status of the US-Afghanistan Strategic Partnership Agreement that Obama went to sign in Afghanistan. Duncan Hollis posted three first impressions from a recent conference at the US Naval Academy on the Ethics of Military Cyber Operations. Further on novel military operations, Ken Anderson posted a summary of his recent article, co-authored with Matthew Waxman, on the Law and Ethics for Robot Soldiers. Kevin Heller welcomed Communis Hostis Omnium, a blog on maritime piracy, to the blogosphere. He posted on Benjamin Netanyahu’s terrible week and analysed Libya’s challenge of the admissibility of the ICC cases against Gaddafi and Al-Senussi. He then addressed the question, raised in the comments by recent Opinio Juris guest contributor Mark Kersten, whether Libya is “able” to prosecute Gaddafi and Al-Senussi given that neither of them is currently in Libya’s custody. Kevin also discussed how the Nuremberg defense is popping up in the NFL’s bountygate.

Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?

Quite possibly.  Here's the Third Circuit's merits opinion in United States v. Bond, involving a conviction under the Chemical Weapons Convention Implementation Act of 1998.  The court upheld the conviction against a Tenth Amendment attack, this after the Supreme Court last year found Ms. Bond to have standing to press the federalism claim.  After rehearsing the academic debates on Missouri...

Ian Hurd on Law and Diplomacy

Ian Hurd has a very interesting essay on law and international relations, "Law and the Practice of Diplomacy," which I'd strongly recommend to anyone with an IR/IL bent.  It's maybe the only piece of IR theory that I've read that really seems to get the dynamic element of international law.  It also centers international law to what I suspect is...

Weekday News Wrap: Friday, May 4, 2012

Prosecutors are seeking an 80-year sentence for Charles Taylor. The sentencing will take place on May 30th. The US solar industry is pushing the government to bring a WTO complaint against India's local content requirements in the production of solar panels. Despite recent nationalizations in Bolivia and Argentina, the IMF has declined to call it a trend. Speaking in Beijing, American Secretary of State Hillary Clinton...

Is Libya “Able” to Prosecute Saif and Al-Senussi?

In the comments to my previous post, Mark Kersten (of the superb Justice in Conflict blog) asks an excellent question: Saif remains in the custody of the former rebels in Zintan, not the NTC. Further, the rebels in Zintan have consistently reiterated that they would like to see Saif tried there and not in Tripoli. Yet the admissibility challenge is from...

Weekday News Wrap: Thursday, May 3, 2012

Chen Guangcheng says he felt pressure to take the deal to leave the US Embassy and now wants to leave China on Hillary Clinton's plane. The US has promised to do what it can once his wishes are clear. The FAO Food Index has indicated that global food prices were down in April, though fears about inflation remain. Security is tight in Barcelona as...

What Exactly Did President Obama Fly All the Way to Afghanistan to Sign?

President Obama went to Afghanistan today to sign The U.S.-Afghanistan Strategic Partnership Agreement. The Agreement is a classic agreement to have further agreements, but doesn't really commit either side to many specifics.  The most important thing they agreed to do is to negotiate a Bilateral Security Agreement within a year.  But other than agreeing to seek funds in Congress for...

Weekday News Wrap: Wednesday, May 2, 2012

US President Obama makes a surprise visit to Kabul in order to sign a strategic pact setting out the US' strategic long-term role. Shortly after his visit, large blasts were heard and at least six were killed in the country's capital. Myanmar's Suu Kyi makes her historic debut in parliament. The UN peacekeeping chief has said that the Syrian army is still...

DSK Court Dodges Domestic Status of Customary International Law Question

As far as I can tell, the NY state court reached the right conclusion by rejecting former IMF Chief Dominique Strauss-Kahn's claim for immunity under customary international law.  It is also worth noting that the Court wisely dodged the tricky question of whether and how customary international law would affect the state case. The Court noted that some scholars (e.g....

Law and Ethics for Robot Soldiers

Lethal autonomous weapons can be approached from two directions.  One is to look from the front-end - starting from where technology stands today, forward across the evolution of the technology, but focused on the incremental changes as and how they occur, and especially how they are occurring now.  The other is to imagine the end-state - the necessarily speculative and sometimes pure sci-fi "robot soldiers" of this post's title - and look backwards to the present.  Starting with the hypothetical technological end-point - a genuinely "autonomous," decision-making robot weapon, rather than merely a highly "automated" one - the basic regulatory issue is, what tests of law and ethics would an autonomous weapon have to pass in order to be a lawful system, starting with the fundamental law of war principles, distinction and proportionality?  What would such a weapon be and how would it have to operate to satisfy those tests? This is an important conceptual exercise as technological innovators imagine and work toward autonomy in many different robotic applications, in which weapons technology is only one line of inquiry.  Imagining the technological end-point as law and ethics means, more or less,  hypothesizing what we might call the "ethical Turing Test" for a robot soldier:  What must it be able to do, and how must it be able to behave, in order to make it indistinguishable for its morally ideal human counterpart?  The idealized conceptualization of the ethically defensible autonomous weapon forces us to ask questions today about fundamental issues - who or what is accountable, for example, or how does one turn proportionality judgments into an algorithm?  Might a system in which lethal decisions are made entirely by machine, with no human in the firing loop, violate some fundamental moral principle?  All these and more are important questions.  The problem in starting with them, however, is that the technology driving toward autonomous weapons is proceeding in little tiny steps (and some important critics, their enthusiasm tempered by earlier promises of artificial intelligence that failed, question whether the tiny little steps can ever get to genuine autonomy) - not gigantic ones that immediately implicate these fundamental questions of full autonomy. Indeed, the systems being automated first are frequently not the weapons themselves, but instead other parts of the system.  But they might eventually carry the weapons in train.  Thus, for example, as fighter aircraft become increasingly automated in how they are flown - in order to compete with enemy aircraft also becoming more automated - eventually important parts of the flight functions operate faster than humans can.  In that case, however, it looks irresistible to automate, if not make fully autonomous, the weapons systems, because they have to be integrated with the whole aircraft and all its systems.  We didn't start out intending to automate the weapons - but we wound up there because the weapons are part of a whole aircraft system. These facts about how technology of automation is evolving are important for questions of regulating and assessing the legality of new weapons systems.  In effect, they shift the focus away from imagining the fully autonomous robot soldier and the legal and ethical tests it would have to meet to be lawful - back to the front end, the margin of evolving technology today.  The bit-by-bit evolution of the technology urges a gradualist approach to regulation; incremental advances in automation of systems that have implications for weapons need to be considered from a regulatory standpoint that is itself gradualist and able to adapt to incremental innovation.  So, Matthew Waxman and I are pleased to announce a new short paper on this topic, Law and Ethics for Robot Soldiers, which takes as its premise the need to think incrementally about the regulation of evolving automation. The essay's takeaway on regulation is ultimately a modest one - a quite traditional (at least from the US government's long-term perspective) approach to weapons regulation.  Grand treaties seem to us unlikely to be suitable to incremental technological change, particularly as they might seek to imagine a technological end-state that might come about as anticipated, but might develop in some quite unexpected way.  Sweeping and categorical pronouncements can re-state fundamental principles of the laws of war, but they are unlikely to be very useful in addressing the highly specific and contingent facts of particular systems undergoing automation. We urge, instead, a gradually evolving pattern of practices of the states developing such systems and, as part of the process of  legal review of weapons systems, development through reasoned articulation of how and why highly particular, technically detailed weapons systems meet fundamental legal standards.  In effect, this proposes that states develop bodies of evolving state practice - sometimes agreeing with other states and their practices, but likely other times disagreeing.  This seems to us the most suitable means for developing legal standards for the long term to address evolving weapons technology.  Abstract below the fold.

NY State Court Rejects DSK’s Immunity Claim

As Julian predicted a few days ago, Judge Doug McKeon of the Bronx Supreme Court (that is the trial court level, New York state) today rejected former IMF Chief Dominique Strauss Kahn's claim that he was entitled to immunity from a civil lawsuit brought by a former maid at the Sofitel Hotel in New York for the same acts that...

A Return to “Diplomatic Asylum”?

Uri Feldman and Josh Keating have this excellent piece now up over at Foreign Policy on the history and mechanics of diplomatic asylum, as now possibly playing out in the case of Chen Guangcheng. This in the wake of Wang Lijun, who got the Bo Xilai ball rolling and spent 30 hours holed up in the US consulate in Chengdu.  In...