Saturday, October 13, 2007

New Issue: Vereinte Nationen

The latest issue of Vereinte Nationen (Vol. 55, no. 4, 2007) is out. Contents include:
  • Rafael Biermann, Zwischen Friedenskonsolidierung und Friedensschaffung. Gemischte Bilanz der UN-Verwaltung in Kosovo
  • Neithart Höfer-Wissing, Die Zukunft Kosovos. Vorbereitungen auf eine international überwachte Unabhängigkeit
  • Leonie von Braun, Der Strafgerichtshof für das ehemalige Jugoslawien. Mehr Errungenschaften als Versäumnisse
  • "Wir brauchen einen neuen Typus des globalen Führungspolitikers." Interview mit Mark Malloch Brown, ehemaliger Stellvertretender UN-Generalsekretär
  • Theodor Rathgeber, Nicht alles zum Besten. Die zukünftige Arbeitsstruktur des UN-Menschenrechtsrats

Friday, October 12, 2007

Conference: Effective International Dispute Settlement for Public and Private Actors

World Legal Forum, an initiative of the Science Alliance, the International Criminal Law Network, and other partners, will host a conference on Effective International Dispute Settlement for Public and Private Actors, December 10-12, 2007, in The Hague. The program is here. Why attend?

Since the Hague Peace Conference of 1907, the nature of international law has changed dramatically. Not only has the international balance of power changed substantially; the power of individual countries has been balanced by international law itself. At the same time, companies have developed into new international powerhouses, not only economically but also legally. Moreover, NGOs have become global players and laid the foundation for new international legal structures.

Today, both public and private actors are responsible for managing safe and reliable international interactions. World Legal Forum (WLF) will therefore bring together academics, businessmen and policy makers to discuss "Effective International Dispute Settlement".

WLF will be an interdisciplinary, intercultural and intersectoral platform where speakers from all over the world will engage in an open and informal debate about dispute settlement. The audience will consist of members of the judiciary, parliamentarians, policymakers, businessmen, legal practitioners and academics working in the field of international law and international relations.

Call for Papers: Inaugural Conference of the Society of International Economic Law

The Society of International Economic Law has issued a call for papers for its inaugural conference, the theme of which will be "New Horizons of International Economic Law." Here's the call:

Over the course of the last two decades, the communities of scholars, practitioners and others active in the area of international economic law have grown and diversified in ways that few could have predicted. The field of international economic law now includes a diverse array of participants, is prominent in numerous areas and addresses new substantive issues. Perhaps inevitably, the term "international economic law" now defies easy definition - at once a fully integrated part of public international law and an identifiable field in its own right, with a broader or narrower scope depending on perspective.

This conference aims to explore the many different faces of "international economic law", in order to reflect critically on its past, present and future paths. It will seek to explore issues concerning the content of the discipline, its evolution as a distinct field, and its relation with other fields of study. Given that the aim of the Society includes fostering research in the area of IEL and promoting cooperation among all parts within the field, the SIEL inaugural conference will also be a forum for those inside and outside academia to share pedagogical and research methods, as well as to explore greater cooperation among the many different constituencies of the field.

We welcome papers and panels on any topic related to the conference, including:

  • the three traditional pillars of "public" IEL: trade, investment, and monetary policies;
  • the relationship between these pillars, and between these pillars and other branches of law;
  • the influence of disciplines such as economics, political economy, and others on international economic law;
  • "comparative" international economic law, focussing on the ways in which international economic law interacts with laws, institutions and actors at the domestic level;
  • the "geographies" of international economic law, relating to the role of international economic law in different parts of the world;
  • the roles that law and legal practices play within "international economic governance";
  • methods and trends in the teaching of international economic law, both in universities and to the broader public;
  • interactions between scholars, practitioners, government officials and civil society groups active in international economic law;
  • and topical issues within international economic law.

We are particularly interested in integrating new voices with more established figures in the field, and welcome works in progress from young or new scholars reflecting the conference's broad theme.

There will be plenary and concurrent panels. Each panel will be moderated and may also have commentators on the papers presented. It is expected that many of the eminent members of the Founding Executive Council and members of the Founding Committee will be attending the conference - as presenters, commentators, and as Key Note Speakers (see for a full listing).

Submission Procedure

Paper and panel proposals are due by 15 December 2007, however early expression of interest is welcome. Paper abstracts and panel proposals should be no longer than 500 words, and should be submitted via email to, in WORD or PDF formats. Please, write "SIEL Conference Call for Papers" in the "subject" of the e-mail. Please, provide us with information about your full institutional affiliation and contact details. All papers submitted to the SIEL Conference must be previously unpublished. Work in progress is acceptable. Panel proposals should include a panel title, topics covered during the panel, list of suggested panelists (minimum 4), and information about the panelists and their specific contribution to the panel.

Results of the selection process are expected to be announced by 15 January 2008 by e-mail. If an abstract is accepted for the conference, a final manuscript should be submitted by Sunday, 15 June 2008.

Conference fees and the costs associated with attending the conference will be kept as low as possible. The Society hopes to be in a position to waive the conference fee for speakers.

Review Process

Every paper or panel proposal will be reviewed by a minimum of two reviewers, members of the SIEL Founding or Inaugural Conference Committees. Confidentiality of the selection process is


You may submit your inquiries to Andrew Lang and Colin Picker: Co-Chairs, Founding Committee SIEL and to Galina Zukova, Co-Chair, SIEL Inaugural Conference Committee

Dr Andrew Lang, Law Department - London School of Economics

Prof. Colin B. Picker, University of Missouri - Kansas City School of Law

Assoc. Prof. Galina Zukova, Riga Graduate School of Law

Eldar: Vote-Trading in International Institutions

Ofer Eldar (Weil, Gotshal & Manges LLP; New York Univ. - Law) has posted Vote-Trading in International Institutions (European Journal of International Law, forthcoming). Here's the abstract:
There is evidence that countries trade votes among each other in international institutions on a wide range of issues, including the use of force, trade issues and elections of judges. Vote-trading has been criticized as being a form of corruption, undue influence and coercion. Contrary to common wisdom, however, I argue in this paper that the case for introducing policy measures against vote-trading cannot be made out on the basis of available evidence. This paper sets out an analytical framework for analyzing vote-trading in international institutions, focusing on three major contexts in which vote-trading may generate benefits and costs: (1) agency costs (collective good), (2) coercive tendering and (3) agency costs (constituents). The applicability of each context depends primarily on the type of decision in question - i.e. preference-decision or judgment-decision - and the interests that countries are expected to maximize when voting. The analytical framework is applied to evidence of vote-trading in four institutions, the Security Council, the General Assembly, the World Trade Organization and the International Whaling Commission. The application of the analysis reveals that while vote-trading can create significant costs, there is only equivocal evidence to this effect, and in several cases vote-trading generates important benefits.

Brown: A Common Law of International Adjudication

Chester Brown (U.K. Foreign and Commonwealth Office) has published A Common Law of International Adjudication (Oxford Univ. Press 2007). Here's the abstract:

The proliferation of international courts and tribunals has given rise to several new issues affecting the administration of international justice. This book makes a significant contribution to understanding the impact of this proliferation by addressing one important question: namely, whether international courts and tribunals are increasingly adopting common approaches to issues of procedure and remedies. This book's central argument is that there is an increasing commonality in the practice of international courts to the application of rules concerning these issues, and that this represents the emergence of a common law of international adjudication.

The book examines this question by considering several key issues relating to procedure and remedies, and analyzes relevant international jurisprudence to demonstrate that there is substantial commonality. It goes on to look at why international courts are increasingly adopting common approaches to such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles.

The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do not generally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of the international legal system.

Thursday, October 11, 2007

Medellin: The International Arbitration Analogy

In today's New York Times, Linda Greenhouse generously describes yesterday's Medellin argument as an "intense and lively seminar on presidential power, international law and judicial authority." Greenhouse (and Robert Barnes in the Washington Post's story) make much of the extra time the Chief Justice, sua sponte, provided counsel (twenty-six minutes total, to be precise, according to Greenhouse), and attribute this to the importance of the issues raised. There is, though, a less generous interpretation: the Justices (to be kind) are unfamiliar with international law and international institutions, and counsel (for their part) didn't do enough to educate the Justices or, failing that, to help the Justices put the complex matters at issue in terms more familiar to them.

One way they could have done so was to analogize Medellin to the enforcement of an international arbitral award in a commercial dispute. After all, the United States and Mexico entered into an arbitration agreement (the Optional Protocol) that provided for arbitration before a panel (the International Court of Justice) that issued an award (the Avena judgment) that the petitioner in this case (Medellin) is seeking to enforce in U.S. courts. There are two significant differences between the enforcement of an international arbitral award and the enforcement of an ICJ judgment that make this case much trickier than the standard arbitration case: (1) in international commercial arbitration there is a treaty (the New York Convention) that has been incorporated into U.S. law by at statute (Chapter Two of the Federal Arbitration Act) that clearly calls for judicial enforcement of international arbitral awards; and (2) enforcement of the ICJ judgment at issue here, by means of the Presidential Determination, raises constitutional issues concerning judicial power and federalism. The challenges for the petitioner (and for the United States as amicus) were, therefore, twofold: (1) to convince the Court that the Avena judgment was constitutionally incorporated into U.S. law; and (2) to explain the limitations of that incorporation.

With regard to the first challenge, Donald Donovan, for the petitioner, chose (as his primary argument) an extreme position: the Avena judgment is directly enforceable (even without presidential action) because the three treaties (the Vienna Convention on Consular Relations, the Optional Protocol to the VCCR, and the UN Charter) are U.S. law per the Supremacy Clause. This is clearly a losing argument (though Justice Breyer seemed entranced by its simplicity), especially before this court, and, given that, it's unclear why Donovan even attempted to make it. Paul Clement (for the United States, as amicus) took a different tack: the Presidential Determination was the necessary act incorporating the judgment into U.S. law. Contra Donovan, without this act, the Avena judgment would have no domestic effect. In other words, to return to the analogy, the Presidential Determination does for the Avena judgment precisely what Chapter Two of the Federal Arbitration Act does for international arbitral awards. The problem with the determination is not the incorporating role that it might play in U.S. law but the President's authority to issue a document that may serve that purpose. No one questions whether Congress could pass and the President could sign the Federal Arbitration Act (or a law that incorporated Avena), but can the President unilaterally act with the same effect? Clement yesterday (and previously in the U.S. merits brief) attempted to show why the President has the relevant authority. If you were with the majority in American Insurance Association v. Garamendi, 537 U.S. 1100 (2003), then you will probably agree with Clement. If you were with the minority, you might still agree with Clement, if you view the evidence of presidential authority in Medellin as stronger than that in Garamendi. For example, I anticipate that Justice Ginsburg, who filed a dissenting opinion in Garamendi, as well as Justice Stevens, who joined Justice Ginsburg's dissent, will side with the Government here. Justices Scalia and Thomas (also Garamendi dissenters) will not.

But even if you see things Clement's way, there remains the issue of the limitations on the President's authority. In the chaos of yesterday's argument, this was really the question that needed answering if the petitioner is going to win. (Chief Justice Roberts and Justice Kennedy, who are the swing votes here, needed the most assurance on this point.) Again, the arbitration analogy is helpful. Chapter Two of the Federal Arbitration Act (specifically, 9 U.S.C. 207) states that awards shall be enforced "unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the [New York] Convention." Article V of the New York Convention sets out seven such grounds, most of which are procedural, but also include failsafes such as "public policy." Properly, these grounds are narrowly interpreted by courts, but they exist and are occasionally employed, and thus have weight. The Presidential Determination, by contrast, does not recognize, at least on its face, any limitations on the incorporation of the Avena judgment. When Chief Justice Roberts and the other Justices were wondering about the evisceration of judicial authority (meaning their judicial authority), this is what they were getting at. Don't they have a role here, if only a screening function like that envisioned by Article V of the New York Convention? The answer should be yes (for constitutional reasons and for control reasons), and Clement attempted to get at that by stating (at page 33 of the transcript, responding to Justice Kennedy): "[T]he President can't displace the role of this Court. It's just that the role of this Court in a situation where there's been a judgment and the executive branch has viewed that judgment as something we should comply with, then the role of this Court is limited to deciding whether there was jurisdiction to issue that judgment in the first place; and then the secondary role of this Court would be to say, does the rule of law embodied by that judgment violate the Constitution." In this way, the Court can act both as the final interpreter of U.S. law (including the Vienna Convention, as it did in Sanchez-Llamas v. Oregon, 548 U.S. __ (2006)) and enforce a different interpretation of that law made by a competent arbitral entity like the ICJ. If the Court rules in favor of the petitioner (as I think it will), then expect some variation of Clement's limiting principle to play a significant role in the Court's opinion.

Thinking about this case through the arbitration analogy allows the Court to understand what's at stake here, what's not, and what its proper role should be.

Prediction: Petitioner will prevail by a 7-2 (Justices Scalia and Thomas) or a 6-3 (Justices Scalia, Thomas, and Alito) majority.

Wednesday, October 10, 2007

Medellin v. Texas: Oral Argument

This morning, the Supreme Court of the United States heard argument in Medellin v. Texas (No. 06-984). (See previously here and here; see also SCOTUSblog's argument preview here.) Donald F. Donovan (Debevoise & Plimpton LLP) argued for the petitioner; Paul Clement (Solicitor General of the United States) argued for the United States as amicus curiae in support of the petitioner; and R. Ted Cruz (Solicitor General of the State of Texas) argued for the respondent. An initial read-out of the argument can be found here. I will post the argument transcript when it is available.

UPDATE: The transcript is now available here.

Talmon: A Plurality of Responsible Actors

Stefan Talmon (Oxford - Law) has posted A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq (in The Iraq War and International Law, forthcoming). Here's the abstract:
From mid-April 2003 to 28 June 2004, Iraq was under belligerent occupation by the United States of America and the United Kingdom acting 'as occupying powers under unified command'. For most of the 15-month occupation, Iraq was governed by the occupying powers through the vehicle of the Coalition Provisional Authority (CPA). During the period when it was governing Iraq the CPA may have violated the laws of occupation, as laid down in the Hague Regulations and the Geneva Conventions, and human rights law, or may have contravened binding UN Security Council resolutions. This paper does not primarily examine whether and, if so, which rules of international law the CPA actually violated, but seeks to determine who may be held responsible for any transgression of international law by the CPA. Several States and the United Nations were involved in the occupation of Iraq. One State that clearly does not bear any responsibility for the CPA's actions is Iraq itself. This leaves the two occupying powers, either jointly or separately, their coalition partners and the United Nations as possible subjects of attribution of the acts of the CPA. The international responsibility for the CPA's actions in Iraq thus raises intricate questions of State responsibility and the responsibility of international organizations.

Tuesday, October 9, 2007

Fiss, Moreno-Ocampo, & Martinez on International Courts

The current issue of the Boston Review (Vol. 32, no. 5, September-October 2007) includes a forum on "How Can International Courts Serve Justice?" Owen Fiss (Yale - Law) writes the lead essay Within Reach of the State: Prosecuting Atrocities in Africa, and Luis Moreno-Ocampo (Prosecutor, International Criminal Court) provides a response. Also included is Slave Trade on Fire by Jenny S. Martinez (Stanford - Law), which is an abbreviated version of her forthcoming Yale Law Journal article "Anti-Slavery Courts and the Dawn of International Human Rights Law" (see here).

Pauwelyn: Optimal Protection of International Law: Navigating European Absolutism and American Voluntarism

Joost Pauwelyn (Graduate Institute of International Studies, Geneva - International Law) has posted Optimal Protection of International Law: Navigating European Absolutism and American Voluntarism (University of Illinois Law Review, forthcoming). Yet another contribution to the Symposium "Public International Law and Economics," forthcoming in the University of Illinois Law Review. (For previously posted symposium papers, see here and links therein.) Here's the abstract:
Imagine a world where international law can be flawlessly enforced. In that world, how strongly should international law be protected? With ever more international law and more international tribunals this world is no longer a fantasy. This article addresses the question of optimal protection of international law in a three-step model of allocation, protection and back-up enforcement of international law entitlements. The article does not ask the tired question of whether international law is law or legally binding. Rather, with the use of law and economics tools, the article assesses how strongly states are, or should be, bound to international law. The article concludes, somewhat counter-intuitively, that by default international law ought to be protected by a property rule. This prediction is confirmed in the current state of international law and debunks both what I call European absolutism and American voluntarism. Relatively weak formal instruments of back-up enforcement (compensation and 1:1 retaliation) do not undermine this property protection thanks to what I call the "kicker" of community costs. At the same time, the article proposes a matrix of considerations that, in specific circumstances, should shift optimal protection to either stronger inalienability protection or weaker protection under a liability rule. If international law is to further develop and refine it must adopt a model of variable protection.

Safrin: The Un-Exceptionalism of U.S. Exceptionalism

Sabrina Safrin (Rutgers Univ., Newark - Law) has posted The Un-Exceptionalism of U.S. Exceptionalism. Here's the abstract:

Between 1990 and 2006 over one thousand law review articles have appeared referencing United States legal exceptionalism or unilateralism. They decry the alleged U.S. tendency to seek special rules for itself that diverge from those applicable to other nations. In sharp contrast, over the same period, only six articles reference European exceptionalism or unilateralism and only a dozen refer to the exceptionalism or unilateralism of Russia, Japan, China, India, Africa and developing countries combined.

This article challenges the prevailing view that the United States acts exceptionally by examining the insufficiently considered legal exceptionalism of other countries. It puts U.S. Exceptionalism in perspective by identifying European Exceptionalism as well as Developing Country Exceptionalism, pointing to the exceptional rules sought by the European Union and by developing countries in numerous international agreements and institutions. It argues that most nations seek different international rules for themselves when they perceive themselves to have an exceptional need. Indeed, in cases of exceptional need, numerous countries believe themselves entitled to exceptional legal accommodation and may even perceive other countries' unwillingness to accommodate their needs as unfair. In fact, there are patterns to the requests for special treatment. For example, the United States often seeks special legal accomodation in military matters; the European Union seeks special rules to accommodate its unique and evolving status; and developing countries seek special rules to address their development needs.

I conclude by suggesting that the present emphasis on U.S. exceptionalism is overstated at best, and at its worst, misguided and even dangerous. Furthermore, having shown that most nations seek exceptional legal accommodation in certain situations, I identify some parameters for future work on the proper place for exceptionalism in international law.

Monday, October 8, 2007

Judgment: Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea

Today, the International Court of Justice rendered its judgment in the case concerning Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). Judgment here; press release here. Nicaragua filed its application on December 8, 1999, and the dispute, as the case name indicates, pertained to the delimitation of the maritime boundary between the two countries in the Caribbean Sea. The competing claims are shown in the map above; the Court's line is shown in the map below. Here's the judgment's dispositif:
  • finds unanimously that Honduras has sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay;
  • decides by fifteen votes to two that the starting-point of the single maritime boundary that divides the territorial sea, continental shelf and exclusive economic zones of the Republic of Nicaragua and the Republic of Honduras shall be located at a point with the co-ordinates 15° 00' 52" N and 83° 05' 58" W;
  • decides by fourteen votes to three that, from this starting-point, the delimitation line continues along the bisector until it reaches the outer limit of the 12-nautical-mile territorial sea of Bobel Cay. It then traces this territorial sea round to the south until it reaches the median line in the overlapping territorial seas of Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua). The delimitation line continues along this median line until it reaches the territorial sea of South Cay, which for the most part does not overlap with the territorial sea of Edinburgh Cay. The line then traces the arc of the outer limit of the 12-nautical-mile territorial sea of South Cay round to the north until it again connects with the bisector, whereafter the line continues along that azimuth until it reaches the area where the rights of certain third States may be affected;
  • finds by sixteen votes to one that the Parties must negotiate in good faith with a view to agreeing on the course of the delimitation line of that portion of the territorial sea located between the endpoint of the land boundary as established by the 1906 Arbitral Award and the starting-point of the single maritime boundary as determined by the Court.

Overall, this is a victory for Honduras, or, as the Honduran newspaper El Heraldo puts it, "Honduras triunfa en La Haya, regocijo en todo el país."

Annual Report of the ICTY

The Annual Report of the International Criminal Tribunal for the Former Yugoslavia for 2006-2007 is now available. Previous reports can be found here.

Clark & Meese: Another U.N. Power Grab

The op-ed war on the Law of the Sea Convention continues today with a piece by William P. Clark & Edwin Meese in the Wall Street Journal entitled Another U.N. Power Grab. For some previous op-eds on the Convention, see here and here. Here's the Clark and Meese essay:

It is an impressive testament to the abiding affection and political influence of former President Ronald Reagan that the fate of a controversial treaty now before the U.S. Senate may ultimately turn on a single question: What would Reagan do?

As we had the privilege of working closely with President Reagan in connection with the foreign policy, national security and domestic implications of the United Nations Convention on the Law of the Sea (better known as the Law of the Sea Treaty or LOST), there is no question about how our 40th president felt about this accord. He so strongly opposed it that he formally refused to sign the treaty. He even sent Donald Rumsfeld as a personal emissary to our key allies around the world to explain his opposition and encourage them to follow suit. All of them did so at the time.

Proponents of LOST, however, have lately taken - on these pages and elsewhere - to portray President Reagan's concerns as relatively circumscribed. They contend that those objections were subsequently and satisfactorily addressed in a multilateral accord known as the Agreement of 1994. To the extent that such assertions may induce senators who would otherwise oppose the Law of the Sea Treaty to vote for it, perhaps within a matter of weeks and after only the most cursory of reviews, we feel compelled to set the record straight.

Ronald Reagan actually opposed LOST even before he came to office. He was troubled by a treaty that had, in the course of its protracted negotiations, mutated beyond recognition from an effort to codify certain navigation rights strongly supported by our Navy into a dramatic step toward world government. This supranational agenda was most closely identified with, but not limited to, the Treaty's Part XI, which created a variety of executive, legislative and judicial mechanisms to control the resources of the world's oceans.

In a radio address titled "Ocean Mining" on Oct. 10, 1978, Mr. Reagan applauded the idea that "no nat[ional] interest of ours could justify handing sovereign control of two-thirds of the earth's surface over to the Third World." He added, "No one has ruled out the idea of a [Law of the Sea] treaty - one which makes sense - but after long years of fruitless negotiating, it became apparent that the underdeveloped nations who now control the General Assembly were looking for a free ride at our expense - again."

The so-called seabed mining provisions were simply one manifestation of the problems Ronald Reagan had with LOST. That was made clear by an entry in his diary dated June 29, 1982, after months of efforts to negotiate extensive changes in the draft treaty text came to naught. On that evening, President Reagan wrote: "Decided in [National Security Council] meeting - will not sign 'Law of the Sea' treaty even without seabed mining provisions."

The man selected by President Reagan to undertake those renegotiations was the remarkable James Malone. In 1984, Ambassador Malone explained why the Law of the Sea Treaty was unacceptable: "The Treaty's provisions were intentionally designed to promote a new world order - a form of global collectivism known as the New International Economic Order (NIEO) - that seeks ultimately the redistribution of the world's wealth through a complex system of manipulative central economic planning and bureaucratic coercion. The Treaty's provisions are predicated on a distorted interpretation of the noble concept of the Earth's vast oceans as the 'common heritage of mankind.'"

Interestingly, Ambassador Malone declared in 1995, "This remains the case today." That statement is particularly relevant insofar as LOST's supporters, including some of our colleagues from the Reagan administration, insist that the 1994 Agreement "fixed" the previously unacceptable Part XI provisions. As James Malone explained to a conference on the Law of the Sea Treaty before his untimely death more than a decade ago:

"All the provisions from the past that make such a [new world order] outcome possible, indeed likely, still stand. It is not true, as argued by some, and frequently mentioned, that the U.S. rejected the Convention in 1982 solely because of technical difficulties with Part XI. The collectivist and redistributionist provisions of the treaty were at the core of the U.S. refusal to sign."

He added, "The regime's structural arrangements place central planning ahead of free market interests in determining influence over world resources; and yet, the collapse of socialist central planning throughout the world makes this a step in the wrong direction."

In a comment that is, if anything, even more true at present, Ambassador Malone observed that: "Today, not only are the seabed mining provisions inadequately corrected, and the collectivist ideologies of a now repudiated system of global central planning still imbedded in the treaty, new and potentially serious concerns have arisen."

Currently, these include: the increasingly brazen hostility of the United Nations and other multilateral institutions to the United States and its interests; the organization's ambition to impose international taxes, which would allow it to become still less transparent and accountable to member nations; the determination of European and other environmentalists to impose the "precautionary principle" (a Luddite, "better safe than sorry" approach that requires proof no harm can come from any initiative before it can be undertaken); the increasing practice of U.S. courts to allow "universal jurisprudence" to trump American constitutional rights and laws; and the use of "lawfare" (multilateral treaties, tribunal rulings and convention declarations) by adversaries of the U.S. military as asymmetric weapons to curtail or impede American power and operations.

Such developments only serve to reinforce the concerns President Reagan rightly had about the central, and abiding, defect of the Law of the Sea Treaty: its effort to promote global government at the expense of sovereign nation states - and most especially the United States. One of the prime movers behind LOST, the late Elisabeth Mann Borgese of the World Federalist Association (which now calls itself Citizens for Global Solutions), captured what is at stake when she cited an ancient aphorism: "He who rules the sea, rules the land." A U.N. publication lauding her work noted that Borgese saw LOST as a "possible test-bed for ideas she had developed concerning a common global constitution."

While we would not presume to speak for President Reagan, his own words and those of the man who worked most closely with him and us on Law of the Sea matters, Jim Malone, make one thing clear: Even if the 1994 Agreement actually amended LOST (and there are multiple reasons why it did not actually alter so much as a single word of the treaty), Ronald Reagan's belief in the U.S. as an exceptional "shining city on a hill" and his enmity towards threats to our sovereignty in general, and global governance schemes in particular, were such that he would likely encourage the Senate to do today what he did in 1982: Reject LOST.

Hollis: E-war Rules of Engagement

Duncan B. Hollis (Temple Univ. - Law) has an op-ed in today's Los Angeles Times entitled E-war Rules of Engagement. Here it is:

Estonia claimed to be under attack last spring, but not by guns or bombs. This assault came in the form of data requests from more than a million computers. It overwhelmed the Baltic nation's computer networks, crashing e-mail for its parliament, taking down emergency phone lines and freezing online services of government offices, banks, universities and hospitals. Estonia accused Russia of conducting a cyberwar in retaliation for a decision to move a Soviet-era war memorial. The Russian government denied involvement.

Likewise, last month when hackers somewhere in China infiltrated a U.S. Defense Department network, Chinese officials denied its army had any role. (British, French, German and New Zealand officials have complained of similar China-based hacking.) Though no one accused China of acts of war, both events revealed how the Internet is reshaping warfare.

The Internet creates real risks for societies dependent on information networks. Just last March, in an experimental cyberattack, researchers at the Department of Energy's Idaho National Laboratory managed to make a generator self-destruct. So computer attacks don't just threaten other computers but the larger infrastructure. Viruses could become as dangerous as missiles. At the same time, cyberattacks have the potential to minimize the costs of conflict in lives and dollars. Instead of demolishing an electrical grid, cyberattacks offer militaries the option of disabling it temporarily.

Although hotly debated in the '90s, discussions of cyberwar's risks and potential had gone dormant since 9/11. But the Estonia event quickly put cybersecurity back on NATO's agenda. And after the Defense Department breach, President Bush conceded the vulnerability of U.S. systems to cyberattack and the government's need to develop defenses against them.

Countries must, however, do more than recognize cyberspace as a new battleground. They also need to know when and how they can deploy weapons. What are the rules of cyberwar?

For more than a century, nations have devised rules of international law, such as the Geneva Convention, which seek to avoid war or minimize human suffering when conflicts occur. And as new technologies emerge, nations have weighed whether to draft new rules, such as treaties restricting biological, chemical and laser weapons.

Governments and scholars have so far, however, resisted calls to craft new rules of international law to govern attacks on or by computers. Conventional wisdom suggests that the laws we have extend by analogy to cover cyberspace.

And they do. But serious "translation" problems make them ill-suited to the task. For example, the U.N. Charter clearly prohibits states from using force except in self-defense or with U.N. authorization. So does that ban Russia from computer attacks on Estonia? It might. Or is it a "use of force" only if the target is physically harmed? Or only if it leads to death and destruction? Or simply whenever the target is critical to a nation's security? Similar uncertainties surround rules on neutrality and civilian distinction.

Such uncertainty can unintentionally escalate conflicts if participants have different interpretations of what's permissible. Or states may shy away from cyberattacks entirely if they don't know what's allowed - even in cases in which those attacks might cause less harm than the bombs they'll use instead.

Existing laws of war also focus primarily on conflicts between nations. But 9/11 and the ongoing asymmetrical warfare in Iraq and Afghanistan underscore how insufficient that approach is. Cyberwar undoubtedly will attract groups like Al Qaeda; the technology is inexpensive, easy to use and can be deployed from almost anywhere. As the Russia-Estonia and China-U.S. cases show, it is also hard to pin the origins of a cyberattack on a country rather than on individual hackers.

When the laws of war don't apply - even by analogy - an overwhelmingly complex set of other international and foreign laws kicks in. For example, assume the hackers in the Estonia case were indeed operating from Russia but had no ties to the government or military. Under existing rules, Estonia should respond by asking Russia to police its own territory. To counter-attack would violate Russia's sovereignty. With new rules, however, nations could agree to waive sovereignty concerns and permit a direct response in certain cases, such as cyberattacks by terrorists that all nations might want thwarted.

The status quo presents dangers that countries need to stop ignoring. We need new rules of international law so military commanders can operate with greater certainty in cyberspace, and can use new cybertools in ways that reduce the collateral costs of conflict. War has entered the Information Age, and it's time for international law to get a needed update.

International Bankruptcy Symposium

The latest issue of the Brooklyn Journal of International Law (Vol. 32, no. 3, 2007) contains an interesting symposium on international bankruptcy. The contributions are available on the BJIL's website. Here are the contents:
  • Symposium: Bankruptcy in the Global Village: The Second Decade
    • Neil B. Cohen, Michael A. Gerber, & Edward J. Janger, Introduction
    • Christoph G. Paulus, Global Insolvency Law and the Role of Multinational Institutions
    • Ian F. Fletcher, Maintaining the Momentum: The Continuing Quest for Global Standards and Principles to Govern Cross Border Insolvency
    • John A. E. Pottow, The Myth (and Realities) of Forum Shopping in Transnational Insolvency
    • Edward J. Janger, Universal Proceduralism
    • Susan Block-Lieb & Terence C. Halliday, Incrementalisms in Global Lawmaking
    • Steven L. Harris, Choosing the Law Governing Security Interests in International Bankruptcies
    • Nick Segal, The Effect of Reorganization Proceedings on Security Interests: The Position Under English and U.S. Law
    • Robert K. Rasmussen, Where are all the Transnational Bankruptcies? The Puzzling Case for Universalism
    • Gabriel Moss, Group Insolvency - Choice of Forum and Law: The European Experience Under the Influence of English Pragmatism
    • Jay Lawrence Westbrook, Locating the Eye of the Financial Storm
    • Jacob Ziegel, Canada-United States Cross-Border Insolvency Relations and the UNCITRAL Model Law
    • Terence C. Halliday, Legitimacy, Technology, and Leverage: The Building Blocks of Insolvency Architecture in the Decade Past and the Decade Ahead

Sunday, October 7, 2007

New Issue: World Arbitration and Mediation Review

The latest issue of the World Arbitration and Mediation Review (Vol. 1, no. 4, 2007) is out. Contents include:

  • International Arbitration
    • Thomas Bevilacqua, Voluntary Intervention and Other Participation of Third Parties in Ongoing International Arbitrations: A Survey of the Current State of Play
    • Sue Ann Mota & Divya Rao, The WTO and NAFTA - A Comparison of Dispute Resolution Systems and Outcomes Involving the United States, Mexico, and Canada
    • Timothy G. Nelson & Marco E. Schnabl, Safeguarding Against Expropriation of Assets in Latin America: The Bolivian Water Decision, Distilled
  • International Mediation
    • Antonin I. Pribetic, The "Third Option": International Commercial Mediation
    • Christoph C. Paul & Dr. Jamie Walker, A Case for Mediation: Family Mediation in International Child Custody