Archive | International Law

Borgen on Bilder on Mining He-3 on the Moon

My Opinio Juris colleague Chris Borgen has a post up commenting on a new paper by Richard Bilder on SSRN on legal issues involved in mining for Helium 3 on the Moon. The paper, which I’ve just read while on a plane, is fascinating, and Chris provides an excellent introduction to it (go there if you’d like to comment):

In addition to the idea of using helium-3  for [nuclear fusion] power on earth, it is also one of the most commonly posited potential fuel sources for crewed spacecraft to the asteroid belt and outer planets. This would open the belt up to the possibility of asteroid mining (if that turns out to be economically feasible) as well as crewed scientific exploration of the outer solar system. Bilder sets out various options including ratifying the present Moon Agreement, establishing an international lunar resource regime outside of the framework of the Moon Agreement, and setting up either an international organization or some other enterprise for mining lunar helium-3.

Underlying this is his argument that significant public or private investment in helium-3 mining would be predicated on a stable legal regime concerning the property and ownership issues of mined lunar resources. Thus, he argues, it is in the U.S.’s interest to take part in the construction of a lunar resource regime (be it treaty, international organization, or other policy option) sooner, rather than later.

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Yglesias on Robert Bernstein and HRW

I wrote yesterday that “I wonder how long certain liberal bloggers who have been reflexive defenders of HRW without bothering to seriously investigate the bill of particulars against it (e.g.) can continue to repeat things like ‘the idea that HRW is some kind of Israel-bashing organization is nonsense’ now that the founder and former longtime director [Robert Bernstein] has said just that.”  My link singled out, as an example, Matthew Yglesias.

The answer is, apparently, “at least somewhat longer.”  Consider how Yglesias starts his piece yesterday on R. Bernstein: “It’s certainly news that Human Rights Watch’s critics were able to get a former HRW chairman to slam the organization for having the temerity to hold Israel to the same standards of international humanitarian law to which it holds every other country.”

Yglesias provides no evidence that HRW’s critics “got” R. Bernstein to do anything.  HRW’s harshest and most persistent critics are a motley collection of bloggers and tiny NGOs like CAMERA and NGO Monitor, who are in no position to influence a person of R. Bernstein’s stature in any way, except of course through the force of their critiques.  It seems beyond Yglesias to acknowledge that R. Bernstein is simply a long-time human rights activist who is sincerely troubled by the sharp left-wing, anti-Israel turn HRW has taken.

And while R. Bernstein’s argument is muddled in a few places (I’m told by an informed source that the Times’ editorial staff mushed it up a bit), the basic complaint of HRW’s critics, including R. Bernstein, is precisely that HRW fails to treat Israel in anything remotely approaching an objective manner.  Recall, for example, the speech by HRW Middle East Director Sarah Leah Whitson on human rights problem in the Middle East, covered previously on this blog, in which she [...]

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Perils of Global Legalism

Henry Farrell and I discuss my book on bloggingheads.  We briefly touched on the topic whether the EU could be a model for international law (Henry-yes, me-no).  It is interesting in this connection to read the following passage from one of the Economist blogs.

Chinese intellectual curiosity in the EU seemed to peak a few years ago, when in Beijing and Shanghai think tanks grew moderately excited about the idea that Europe was about to adopt a constitution and equip itself with a permanent president and foreign minister. Such European swagger fed into China’s (only natural) desire to see a more multipolar world develop, to replace the post Berlin Wall era of American hegemony.

Then came 2005, and French and Dutch referendums that rejected the draft EU constitution, tipping the union into four years of institutional squabbling that has still not ended. In the meantime, the forces of globalisation, accelerated by the global economic crisis, left the relative decline of Europe as a trading power even more cruelly exposed.

The EU is also exceedingly bad at dealing with Beijing. The 27 member countries undercut and compete among each other for commercial advantage, while the central EU bureaucracy has allowed itself to be bogged down by process (there are scores of EU-China structural dialogues now).

Now, a common Chinese view of Europe amounts to:
–   Europe is in decline but has not come to terms with it.
–   Yet Europe still wants to impose its values on China.
–   There are structural problems in dealing with the EU because of the difficulty in distinguishing EU from member-nation interests.

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Bernstein (Robert!) Denounces Human Rights Watch:

Robert Bernstein (no relation), the founder of  Human Rights Watch, has issued a stinging condemnation of the organization he led from 1978 to 1998.  Here’s a taste:

I must do something that I never anticipated: I must publicly join the group’s critics….

When I stepped aside in 1998, Human Rights Watch was active in 70 countries, most of them closed societies. Now the organization, with increasing frequency, casts aside its important distinction between open and closed societies.

Nowhere is this more evident than in its work in the Middle East. The region is populated by authoritarian regimes with appalling human rights records. Yet in recent years Human Rights Watch has written far more condemnations of Israel for violations of international law than of any other country in the region….

Meanwhile, the Arab and Iranian regimes rule over some 350 million people, and most remain brutal, closed and autocratic, permitting little or no internal dissent. The plight of their citizens who would most benefit from the kind of attention a large and well-financed international human rights organization can provide is being ignored as Human Rights Watch’s Middle East division prepares report after report on Israel.

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields….

Leaders of Human Rights Watch know that Hamas and Hezbollah chose to wage war from densely populated areas, deliberately transforming neighborhoods into battlefields. They know that more and better arms are flowing into both Gaza and Lebanon and are poised to strike again. And they know that this militancy continues to deprive Palestinians of any chance for the peaceful and productive life they deserve. Yet Israel, the repeated victim of aggression,

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Human Rights Versus Multilateralism

Human rights advocates are unhappy with the Obama administration’s foreign policy, citing three developments: (1) the failure to back the Goldstone Report; (2) the failure to pressure Sri Lanka to improve its treatment of Tamils; and (3) the willingness to deal with Sudan’s President Bashir, who was recently indicted by the International Criminal Court.  It turns out that Sudan is a useful ally in fighting terrorism and Sri Lanka is, well, complicated, and Israel is Israel.  As Julian Ku notes, coddling Bashir is hardly a way to support the ICC, which is already reeling from the decision of members of the African Union not to extradite him to The Hague if he enters their countries, in violation of their legal obligations (most of them belong to the ICC; a few have since backpedaled).  Meanwhile, the Obama administration has apparently succeeded in pressuring Spain to water down its universal jurisdiction statute, the one that the Spaniards were supposed to use to prosecute Donald Rumsfeld, Dick Cheney, and David Addington.  Well, good for the Obama administration: it has implicitly repudiated campaign rhetoric that endorsed global legalism, and it didn’t take it as long as one might have thought.

The only real break from the Bush administration on the human rights front, rhetoric aside, was the decision to join the comically named Human Rights Council, which is dominated by human-rights abusing countries and almost never condemns anyone (except Israel) for violating human rights.  The Human Rights Council replaced the Human Rights Commission, which was disbanded because it was dominated by human-rights abusing countries and almost never condemned anyone (except Israel) for violating human rights.  Aside from rubber stamping anodyne periodic reviews of countries (which make for fun reading*) and condemning Israel, the Council issues resolutions promoting the values of [...]

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Raiding Strategies with Predators

Patrick Cronin over at Facebook points to a new review essay from Edward Luttwak in the latest Times Literary Supplement, but unfortunately not up online.  (I subscribe but apparently Patrick gets this stuff a lot faster than I do.)  However, Patrick posted a couple of paragraphs.  Luttwak reviews David Kilcullen’s widely noticed book among several others, and apparently argues (from the bits I’ve seen) that counter-insurgency warfare (clear and hold, etc.) in Afghanistan is a mistake, and argues instead for raiding strategies using small teams of Special Forces, special ops, Predators and drones, and so on.  I will post a link to the full article if the TLS puts it up.  However, here is a bit taken from Patrick’s note on FB:

“Obama will soon learn how even small wars can drain all the oxygen from a presidency.”… “For there is is a far superior alternative to the occupation of worthless places at very great cost in policy attention as well as in dead soldiers and money: surveillance to detect gathering threats…followed by ground, air or naval raids to destroy them. Raiding is far more economical than counter-insurgency, if only because it requires intermittent action, and is eminently suitable for Afghanistan….”

I don’t take a position here regarding whether strategy in Afghanistan should shift from counterinsurgency to counterterrorism in the sense that Luttwak means it above.  That’s a big discussion, particularly without reading the whole Luttwak piece first.  There are several complicated possibilities, especially when Afghanistan and Pakistan are each considered:  among them are surge and counterinsurgency on the Iraq model, or using a raiding strategy as Luttwak describes above, or a combination (which is one way of looking at this current move by the Pakistani army, as well as the Swat Valley operations; massive artillery lead assaults against [...]

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Speculating on the Future of the Alien Tort Statute in a Multipolar World

Harvard Law School is hosting in a couple of weeks what is certain to be a very interesting small conference on the Alien Tort Statute.  I was lucky enough to be one of the invitees, addressing the issue of corporate liability under the ATS.  I address the issue of corporate liability under the ATS, but am actually interested in it from a broader perspective, the “jurisprudential” perspective on the distinct and sharply divided “communities of interpretive authority” over such issues in the ATS as the status of corporate liability.  I have written elsewhere recently (in the European Journal of International Law; I think a link directly to the paper in this post here) of the “fragmentation of communities of interpretation and authority” in international law.  The ATS seems to me to offer a striking example of that.

Corporate liability can be thought of as a “hinge” issue in ATS jurisprudence – a “hinge” that under (an amalgamated reading of) current holdings serves to link “international law” to “domestic law,” as required by the two parts of the ATS.  I don’t think it is at all a correct reading of either international law or domestic law, but it seems to me an (arguably) accurate reading (there are always variations and cross-currents) of current cases and their holdings on corporate liability, including, for example, the latest Talisman ruling from the Second Circuit.

In addition to that, however, I conclude the paper (this is still in first draft, believe me) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and [...]

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Satellite War and Bombing the Moon

I’m pleased to note that Glenn Reynolds and I have a new short opinion piece up at,”Bombing the Moon.”  It takes the hook of the LCROSS mission last week to shift gears from explosions on the Moon to … orbital war on satellites.

We applaud an Obama administration initiative to try and get ahead of the issue, but also point out the rogue state-shooting-at-space problem with diplomatic initiatives.  Here’s a short bit:

The LCROSS mission is an important and expensive scientific experiment. Nonetheless, comments on Web sites such as Scientific American and Nature indicate that quite a few people thought the whole venture to be some sort of outer-space vandalism. Some even wondered whether NASA might have acted illegally or violated an international law or treaty by setting out to “bomb the Moon” … The answer is no.

[T]oday the leading threat is to global communications and control of instruments crucial to economic and social systems, by means of weapons aimed against satellites. Nor does the threat necessarily require any specially designed weapon; satellites are horribly delicate and unprotected against kinetic force, and essentially anything with an engine and some maneuverability, including other satellites present for otherwise ordinary and nonthreatening uses, can create a threat to them. Think IEDs (improvised explosive devices) in space.

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Release the Koh Memorandum on Honduras

James Kirchik, writing in a recent issue of The New Republic, ponders the Administration continued insistence that there was a “coup” in Honduras.  He concludes:

In the immediate wake of Honduras’s constitutional crisis, it was understandable that the administration, caught by surprise, might jump the gun in its denunciation of the military action as a “coup.” Now, three months later and with legal repudiation from within its own government, U.S. policy has become a mistake in search of a rationale.

Among other things, Kirchik notes the Law Library of Congress analysis (noted here):

according to a recently released and widely overlooked report drafted by the Library of Congress, the actions the Honduran government took in removing Zelaya were consistent with that country’s constitutional procedures. Although the constitution does not contain specific information as to how a president can be impeached, the report did find that the Honduran Congress “used several other constitutional powers to remove President Zelaya from office.” Furthermore, the report also found that the country’s “Supreme Court, based on its constitutional powers, heard the case against Zelaya and applied the appropriate procedure mandated by the Code of Criminal Procedure.” In conclusion, the report, which was prepared by the Congressional Research Service’s Senior Foreign Law Specialist, determines “that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.”

In other words, far from fitting the administration’s description as a “coup d’état,” the report paints Zelaya’s removal as remarkably orderly and legalistic, especially in a region where the rule of law is so tenuous. The Obama administration’s position, predicated on its hasty conclusion that Zelaya’s removal was

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Incentives for Targeted Killing

I’ve posted before about targeted killing, and written about it for publication, as well.  I’ll be on NPR’s All Things Considered today, in a story by correspondent Ari Shapiro, talking about targeted killings in relation to detention and interrogation.  (Now that I’ve seen the story, I see with pleasure that it also quotes Matthew Waxman, Vijay Padmanabhan, John Bellinger, and Monica Hakimi.  Cool lineup.)  My point is pretty straightforward – uncertainties in detention and interrogation policies, particularly for mid-level operatives in the CIA and intelligence agencies, partly created by the courts and partly created by other actors such as DOJ, have increased the incentives to kill rather than capture.  Not always by use of Predator missiles, as the Somalia raid using helicopters firing on a vehicle a few weeks ago pointed up, but an incentive to kill from a distance rather than seek to capture and interrogate for intelligence value.  I haven’t heard the story, which was pre-taped, but I have a high opinion of Ari Shapiro as a journalist, and I’m sure that apart from whatever little bit is my part of the story, there’s good stuff there.  But anyway there’s a link to it and a snippet at the NPR blog.  (Cross-posted to OJ and CTLab.) [...]

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Deborah Pearlstein Responds to Ben Wittes on Detention

Deborah Pearlstein has an important response to Ben Wittes’s Washington Post op-ed on the Obama administration and detention policy, cross posted at Opinio Juris and Balkinization.  I continue to hold Ben’s views on this, but Deborah offers an incisive next move in the debate and it is important reading for those following this crucial topic. [...]

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Talisman ATS 2nd Circuit Holding Issued

Over at Opinio Juris, my co-blogger Roger Alford notes the issuance today of the Second Circuit’s “long-awaited decision of Presbyterian Church of Sudan v. Talisman Energy.”  Remarks Roger:

My initial impression of the opinion is that it creates an intent hurdle that will be extraordinarily difficult for plaintiffs to overcome. Plaintiffs must show that a corporation had the intent to assist in the violation of human rights. The Court went further and held that while “there may well be an ATS case in which a genuine issue of fact as to a defendant’s intent to aid and abet the principal could be inferred; but in this case, there were insufficient facts or circumstances suggesting that Talisman acted with the purpose to advance violations of international humanitarian law.”

If this case stands, it will be the death knell for most corporate liability claims under the Alien Tort Statute.

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Globally Managing American Speech?

I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.  Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts.  (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)

This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning.  Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.

Even to “engage” in the process, as a consequence, leads to tears no matter where it goes.  A compromise on the issue will inevitably mean that the [...]

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Is the Obama Administration Supporting Calls to Outlaw Supposed Hate Speech?

That’s what it looks like, with this Joint U.S./Egypt draft U.N. Human Rights Council resolution (dated Sept. 2009). The resolution generally seems to be an attempt to urge more protection for free speech throughout the world, and some praise it for that; moreover, it lacks the exception for “defamation of religion” that some Muslim countries have urged. It may therefore be a step forward for Egypt, and an attempt to urge a step forward for some other countries.

But I’m worried that it might be a step backward for our own constitutional rights, because of what seems to be the U.S. endorsement of the suppression of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and possibly of “negative stereotyping of religions and racial groups.” I say “seems to be” because some of the language in the resolution is pretty slippery, and of course it’s always possible that I’m misunderstanding it. (It’s also possible that past U.S. Administrations have taken similar views before, which I would condemn as well.) Here, though, is my thinking (all emphases added by me):

1. Paragraph 4 of the draft resolution “expresses … concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative stereotyping of religions and racial groups continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their international human rights obligations, to address and combat such incidents.”

2. Paragraph 6 likewise “[s]tresses that condemning and addressing, in accordance with international human rights obligations, including those regarding equal protection of the law, any advocacy of national, racial or religious hatred [...]

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Congo, Sudan, and Israel

It’s almost reassuring to see that the various controversies surrounding Human Rights Watch’s reporting on Israel–Middle East director Sarah Leah Whitson’s fundraising trip to Saudi Arabia, deputy director Joe Stork’s long history of anti-Israel activism, military analyst Marc Garlasco’s fetish for Nazi memorabilia–hasn’t led Whitson to even pretend she and HRW will treat Israel fairly in the future.  Indeed, the controversy seems to have made her madder, and even more impolitic.

Check out Whitson’s latest quote: ‘”The Obama administration cannot demand accountability for serious violations in places like Sudan and Congo but let allies like Israel go free.”  Apparently, she can’t, or won’t, distinguish between what’s been going on in Sudan and Congo from what happened in Gaza last Winter.

A reasonable person could have phrased things this way: a U.N.-appointed panel has found that Israel engaged in war crimes in Gaza.  The report is controversial, and the U.N. Human Rights Council’s record is far from ideal.  Nevertheless, we find at least some elements of the report credible, and would urge the U.S. to insist on follow-through.  Thoroughly investigating even relatively minor, and contested, violations of the rules of war by an ally would give the U.S. that much more credibility when pursuing horrific, blatant human rights abuses that take hundreds of thousands of lives in places like Congo and Sudan. But a reasonable person would not have thought to analogize Israel’s action in Gaza to the wars in Congo and Sudan to begin with. [...]

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