international law

Privacy, Secrecy & War: Emperor Rogers and the Failure of NSA Reform

Privacy, Secrecy & War: Emperor Rogers and the Failure of NSA Reform

by on 2014-11-20- Leave a reply

On November 3, Britain’s head of the Government Communications Headquarters (GCHQ) published an opinion piece in the Financial Times, noting that technology companies, such as
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Cyber Letters of Marque and Reprisal: “Hacking Back”

Cyber Letters of Marque and Reprisal: “Hacking Back”

by on 2014-10-15- Leave a reply

In the thirteenth century, before the rise of the “modern” state, private enforcement mechanisms reigned supreme. In fact, because monarchs of the time had difficulties
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ISIS, Syria, the Rebels and the US-Led Coalition: What Governs Who?

ISIS, Syria, the Rebels and the US-Led Coalition: What Governs Who?

by on 2014-09-24- 3 Comments

In a phone call today with a friend working on issues pertaining to the Responsibility to Protect (R2P), an interesting question arose. In particular, what
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Monstermind or the Doomsday Machine? Autonomous Cyberwarfare

Monstermind or the Doomsday Machine? Autonomous Cyberwarfare

by on 2014-08-13- Leave a reply

Today in Wired magazine, James Bamford published a seven-page story and interview with Edward Snowden. The interview is another unique look into the life and
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Do Not Despair: Russian Intervention and International Law

by on 2014-03-04- 3 Comments

UnknownRussia’s military intervention in Ukraine naturally prompted a lot talk about the limits of international law. Eric Posner noted: “ 1. Russia’s military intervention in Ukraine violates international law. 2. No one is going to do anything about it.” Julian Ku argued: “International law can be, and often is, a very important tool for facilitating international and transnational cooperation. But it is not doing much to resolve to Ukraine crisis, and international lawyers need to admit that.” For Ku, the current crisis supports the claims of Rationalist law-skeptics, international law works when legal requirements align with self-interest. Many others, including a good portion of my students see the failure of international law in Ukraine.
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Conquest by other means, Ukraine edition

by on 2014-03-02- Leave a reply

Over at the Monkey Cage, Henry Farrell suggests that President Obama is using the OSCE to give Putin an exit strategy. Farrell writes:

Obama’s “phone call with Putin on Saturday suggests that the United States wants to invoke the old-style OSCE. It notes that Russia’s armed intervention is inconsistent with Russia’s commitments under the Helsinki Final Act (the agreement that established the OSCE), calls for “the dispatch of international observers under the auspices of the United Nations Security Council or the Organization for Security and Cooperation in Europe (OSCE)...

If Putin wants an “exit strategy,” Farrell continues, this is it: “There is no reason why the OSCE could not help broker compromises over new elections and push the Ukrainian government to guarantee the rights of Russian speakers in Ukraine.”

My question to Farrell is, is this Putin’s possible exit strategy, or the United States/EU’s?

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International Institutions Mobilize Opponents Too

by on 2013-10-09- 5 Comments

Members of international institutions typically honor their commitments. But that does not, by itself, tell us much. States are unlikely to join institutions that require them to do things they have no intention of doing. Indeed, some argue that institutions merely act to screen out those least likely to comply. Others, however, have argued that institutions do in fact constrain states - that they are not mere epiphenomena. One prominent mechanism through which institutions are thought to alter state behavior is by mobilizing pro-compliance groups domestically. Institutions may lack enforcement capable, after all, but few governments are entirely insensitive to domestic pressure.

But, as Stephen Chaudoin cogently observes in this working paper, those who stand to lose if the government adopts the institution's preferred policy are unlikely to give in without a fight. And such groups virtually always exist; if they did not there'd be little need for institutions to promote cooperation in the first place. Put differently, while WTO rulings may raise awareness about the effects of tariffs and Amnesty International might draw attention to human rights abuses, the net effect of such efforts might simply be to increase the amount of effort those advantaged by the status quo invest in defending it.

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The Scarcity of Politics in Cosmopolitan Theory: Part I

by on 2013-09-15- Leave a reply

Syria has raised several questions that pertain to morality, legality, and strategy in international relations.  Discussed extensively on the Duck, Opinio Juris, The Monkey Cage, and
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What Do International Law and Norms Say About Burning People Alive?

by on 2013-08-30- 2 Comments

One line of discussion this past week has been whether it makes any kind of moral sense to think that  death by chemical weapon is so much worse than death by "conventional" weapons. Video imagery captured by BBC in the aftermath of another horrific massacre in Syria yesterday throws this into stark relief. At least ten children burned to death and scores others were left with horrifying injuries after a flammable substance was dropped on a school playground yesterday.
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Intervention to Punish? Or to Protect?

by on 2013-08-29- 2 Comments

stopsyriaTwo kinds of military intervention are being discussed and conflated by political elites (like Nicholas Kristof) and international diplomats. The first is an enforcement operation to punish a state for violating a widespread and nearly universal global prohibition norm against the use of chemical weapons. This is what Kristof refers to in the title of his Times op-ed, "Reinforce a Norm in Syria."  The second is a humanitarian operation to protect civilians against a predatory government. This is what Kristof means when he compares proposed military strikes in Syria to intervention that happened in Bosnia and Kosovo and (tragically) didn't happen in Rwanda.

Well, it's useful to clarify which we are talking about since both kinds of operation involve very different tactics and different kinds of legal and moral reasoning. I discuss both at Foreign Affairs this morning:

[If punishing norm violators is the goal], the appropriate course of action would be to, first, independently verify who violated it.... Second, the United States would have to consider a range of policy options for affirming, condemning, and lawfully punishing the perpetrator before resorting to force, particularly unlawful force... Third, should the United States decide on military action, with or without a UN Security Council resolution, it would need to adhere to international norms regulating the use of specific weapons in combat.

But such a strike should not be confused with military action to protect civilians.  

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If Syria Used WMD, It Violated International Law. But So Would a US Intervention.

by on 2013-08-28- 14 Comments

In the New York Times yesterday, Northwestern University political scientist Ian Hurd lays down the law on Syria and intervention:

As a legal matter, the Syrian government’s use of chemical weapons does not automatically justify armed intervention by the United States... Syria is a party to neither the Biological Weapons Convention of 1972 nor the Chemical Weapons Convention of 1993... Syria is a party to the Geneva Protocol, a 1925 treaty that bans the use of toxic gases in wars. But this treaty was designed after World War I with international war in mind, not internal conflicts.

[And] the conventions also don’t mean much unless the Security Council agrees to act. The United Nations Charter... demands that states refrain “from the threat or use of force against the territorial integrity or political independence of any state.” The use of force is permitted when authorized by the Security Council or for self-defense  — but not purely on humanitarian grounds.

Of course ethics, not only laws, should guide policy decisions...  if the White House takes international law seriously — as the State Department does — it cannot try to have it both ways. It must either argue that an “illegal but legitimate” intervention is better than doing nothing, or assert that international law has changed — strategies that I call “constructive noncompliance.” In the case of Syria, I vote for the latter.

Hurd is right about a great many things: that Syria's obligations under treaty law are weaker than people want to think; that there are legal tensions here that the US cannot and shouldn't try to wish away; and that a decision must be made between doing something and doing something lawfully; and that the robustness of international norms around both R2P and chemical weapons are at stake in how the US and UK frame the discussion.

But I think Hurd is both under-stating the case about Syria's international legal obligations, and over-stating the case about US options in framing a potential military intervention. International law indeed is "changing" - but the relevant changes he describes apply to Syria's responsibility to its civilians, not to the US' right to reinterpret the UN Charter. And ultimately, as he points out, even Syria's violations of law don't make it lawful for the US to intervene without a Security Council resolution - however ethically right such an intervention may be. The two are really separate legal questions so I'll address them separately below.
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Resistance is Not Futile.

by on 2013-08-14- Leave a reply

A claim common among opponents of a treaty ban on autonomous weapon systems (AWS) is that treaties banning weapons don't work - suggesting efforts to arrest the development of AWS are an exercise in futility. Now this claim has been picked up uncritically by the editors at Bloomberg, writing in the derisively titled, "No Really, How Do We Keep Robots From Destroying Humans?":

"Bans on specific weapons systems -- such as military airplanes or submarines -- have almost never been effective in the past. Instead, legal prohibitions and ethical norms have arisen that effectively limit their use. So a more promising approach might be to adapt existing international law to govern autonomous technology -- for instance, by requiring that such weapons, like all others, can’t be used indiscriminately or cause unnecessary suffering."

borgThe editors point out a valid distinction between weapons that are banned outright versus more generic questions of how the use of a specific weapon may or may not be lawful (the principles of proportionality and distinction apply to the use of all weapons). But they also make a conceptual and a causal error, and in so doing woefully underestimate the political power of comprehensive treaty bans.
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War Law, the “Public Conscience” and Autonomous Weapons

by on 2013-06-20- 4 Comments

In the Guardian this morning, Christof Heyns very neatly articulates  some of the legal arguments with allowing machines the ability to target human beings autonomously - whether they can distinguish civilians and combatants, make qualitative judgments, be held responsible for war crimes. But after going through this back and forth, Heyns then appears to reframe the debate entirely away from the law and into the realm of morality:

The overriding question of principle, however, is whether machines should be permitted to decide whether human beings live or die.

But this "question of principle" is actually a legal argument itself, as Human Rights Watch pointed out last November in its report Losing Humanity (p. 34): that the entire idea of out-sourcing killing decisions to machine is morally offensive, frightening, even repulsive, to many people, regardless of utilitarian arguments to the contrary:
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Human Rights Treaties are Like Virginity Pledges, Part Deux

by on 2013-05-06- Leave a reply

A little over a month ago, I wrote about the growing academic literature concerning human rights treaties and their lack of influence on human rights practices.  Based on my own experiences growing up in parts of the U.S. where it’s assumed we can "[Rebuild] Our Culture One Purity Ball at a Time,” I likened human rights treaties to virginity pledges, saying that “in most circumstances, these human rights “pledges” don’t work to improve human rights practices.   In some circumstances, they can actually lead to a worsening of governmental human rights practices.”  There is a brand-spankin-new forthcoming article at American Journal of Political Science by Yonatan Lupu of George Washington University that may indicate my previous conclusion was overstated: when fully accounting for state preferences in treaty commitments, Lupu does not find any evidence that treaties make things worse.  This is good news for human rights advocates everywhere and very important for human rights/treaty scholarship!  Lupu’s article definitely deserves your attention.

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Podcast No. 13 – A Conversation with Nick Onuf (mp3)

by on 2012-11-09- Leave a reply

The thirteenth Duck of Minerva podcast features Nicholas Onuf. Nick is one of the "founding parents" of contemporary constructivism. His book, World of Our Making: Rules and Rule in Social Theory and International Relation  -- which has been reissued by Routledge -- introduced the term to describe an approach to the study of world politics.
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Podcast No. 13 – A Conversation with Nick Onuf (m4a)

by on 2012-11-09- 2 Comments

The thirteenth Duck of Minerva podcast features Nicholas Onuf. Nick is one of the "founding parents" of contemporary constructivism. His book, World of Our Making: Rules and Rule in Social Theory and International Relation  -- which has been reissued by Routledge -- introduced the term to describe an approach to the study of world politics.

The podcast is wide-ranging -- part of oral history, part interview, part discussion -- such that I've had difficulty figuring out how to insert chapters. If you're listening via m4a, you'll see that the podcast has only a few chapter titles. "Enter Constructivism," for example, contains not only information about World of Our Making but also about the state of the field in the 1980s, the rise of liberal institutionalism, and so on.

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International Law and Armed Conflict (Syria version)

by on 2012-10-18- 4 Comments

The International Committee for the Red Cross (ICRC) recently determined that the situation in the entire country of Syria can be classified as a non-international armed conflict.  While this may not have been news to many watching events unfold there, what makes this statement interesting is that this position differed from the position advanced in May 2012 by then ICRC President Jakob Kellenberger.  At that time, Kellenberger claimed that parts of Syria could be classified as an “internal” armed conflict, particularly in the area around Homs and in the Idlib district.  The difference may appear inconsequential, but may in fact have some significant impact on the ground.  The difference between whether an entire country is embroiled in a non-international armed conflict versus specific locations within that country has bearing on what constitutes a violation of international law.  The two main bodies of international law relevant to armed conflict are international humanitarian law (IHL) and international human rights law (IHRL).  IHL is the body of law which governs armed conflict and is only triggered when there is an armed conflict.  IHRL generally applies in peacetime, although it can apply during war time as well.  What is interesting about Kellenberger’s statement is that it is a departure from how IHL has traditionally understood territoriality within the context of non-international armed conflict.
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Landmine Advocacy From The Digital Archive

by on 2012-09-08- Leave a reply

I am preparing to leave for a week to conduct participant-observation research at the The Third Meeting of States Parties (3MSP) to the Convention on
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R2P and the “Double-Standard Problem”

by on 2012-07-24- Leave a reply

Jean-Baptiste Jeangène Vilmer (writing at the Fair Observer) argues that there's no double-standard problem because the Libyan intervention did not establish or reflect a generalized
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Social Media and International Law

by on 2012-04-18- 1 Comment

I have an essay online this morning at Opinio Juris as part of a symposium they are running this week on social media and international
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