ASIL 2023 Annual Meeting Recap: Protecting Cultural Heritage in Conflict Zones: Multidisciplinary Approaches

By Charles Bjork

This year’s annual meeting of the American Society of International Law in Washington, D.C., concluded with a special panel discussion on Protecting Cultural Heritage in Conflict Zones.  The discussion was held off-site at the National Museum of Asian Art on Saturday, April 1st.  Conference attendees who registered for this special event enjoyed private small-group tours of the museum before it opened to the public.        

            The panel consisted of Patty Gerstenblith, Distinguished Research Professor of Law and Director of the Center for Art, Museum, and Cultural Heritage Law at Loyola University (Chicago) College of Law; Brooke Guven, Head of Environmental, Social, Governance, and Sustainability at Cerberus Capital Management; Richard Kurin, Distinguished Scholar and Ambassador-at-Large at the Smithsonian Institution; and Zaydoon Zaid, President of the American Foundation for Cultural Research.  Tess Davis, Executive Director of the Antiquities Coalition, served as the moderator.

To begin the discussion, Davis asked Kurin to justify devoting time and treasure to protecting cultural heritage in the midst of an armed conflict when there is so much human suffering that needs to be alleviated.  Shouldn’t the humanitarian needs of non-combatants take precedence?  Or, to put it the question another way, isn’t the protection of cultural heritage a luxury that we should only indulge in during peacetime?  Kurin insisted that cultural heritage shouldn’t be seen as a luxury, but rather as an essential source of strength and resilience and strength during times of adversity and suffering.  As an example, he pointed to the makeshift conversion of Kiev’s subway stations into concert venues to provide a safe space for both classical and contemporary music performances while the city is still vulnerable to Russian missile and drone strikes.

Kurin also noted that armed conflicts aren’t fought exclusively over land and natural resources.  Many also have a cultural component.  Indeed, one impetus for Vladimir Putin’s war of aggression against Ukraine is the destruction of its cultural identity as something unique and distinct from that of Russia.  Fortunately, the war seems to have had precisely the opposite effect.  Gerstenblith agreed with Kurin’s remarks about the cultural dimension of warfare, noting that Rafael Lemkin’s original draft of the 1948 Genocide Convention included a cultural heritage provision.  Although this provision was not included in the final draft of the treaty, the fact that it was given serious consideration indicates that the protection of cultural heritage has deep roots in international law.

Gerstenblith provided an overview of the international legal framework for the protection of cultural property.  The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict obligates state parties to adopt protective measures to designate and safeguard cultural property within their respective jurisdictions during peacetime.  It also requires state parties engaged in armed conflict with another state, or occupying the territory of another state, to respect cultural property and refrain from looting or endangering it.  These obligations include the creation of special military units charged with safeguarding cultural property by, for example, creating “no-fire lists” of buildings and monuments that should not be targeted for military strikes.  State parties also are required to enact criminal sanctions for violations of the convention. 

The 1970 UNESCO Convention Prohibiting the Elicit Import, Export, Transfer of Ownership of Cultural Property establishes a framework for state parties to enact preventative measures to combat trafficking in cultural property.  These include periodic inventories, export certifications, trade monitoring, and criminal sanctions.  The treaty also establishes restitution provisions for the recovery of illegally exported cultural property, as well as measures to facilitate cooperation, the exchange of information, and mutual assistance among state parties. 

The bifurcated approach established by these two foundational treaties offers many advantages.  However, complications can arise when a country has ratified one of the treaties but not the other.  For example, in the aftermath of the U.S. invasion and occupation of Iraq in 2003, efforts to combat the destruction and looting of cultural heritage sites initially were hamstrung by the fact that the U.S. had signed but never ratified the 1954 Hague Convention.  As a result, U.S. military personnel were not subject to the same rules and procedures for the protection of cultural property that guided the operations of coalition forces from jurisdictions that had ratified the treaty.  Eventually, U.S. commanders concluded that the only way to effectively safeguard Iraq’s cultural heritage was for the U.S. to voluntarily adopt the rules and procedures specified under the treaty.  This experience provided the impetus for the U.S. Senate to finally ratify the Hague Convention in 2009.

Kurin explained how the belated ratification of the Hague Convention by the U.S., and the subsequent enactment of its implementing legislation, led to the creation of the Cultural Heritage Coordinating Committee (CHCC) by the State Department in 2016.  Building upon the legacy of the “Monuments Men” during World War II, the CHCC coordinates the federal government’s diplomatic, military, and law enforcement initiatives to protect and preserve cultural heritage sites throughout the world, to combat trafficking in illegal antiquities, to disrupt trafficking networks, and to facilitate the lawful exchange of cultural property.  Kurin described the establishment of the CHCC as a game changer that has enabled 16 federal agency partners to more effectively communicate with each other and better coordinate their efforts to safeguard the world’s cultural heritage.

Davis asked Zaid to comment on the ongoing civil war in Yemen and how the situation there differs from recent conflicts in Syria and Iraq.  As in Syria and Iraq, Zaid explained, insurgent groups with political aspirations have been looting cultural heritage sites trafficking in cultural property to finance their operations.  However, the scale of pillage is even greater in Yemen, due to the total collapse of central authority in much of the country.  This power vacuum has opened the door for criminal gangs, with no political agendas, to join the in the looting and trafficking.  The withdrawal of most Western observers and aid workers, due to safety concerns, makes it impossible to accurately monitor what is happening.  Despite this dire state of affairs, a few bright spots have emerged, most notably the recovery of 77 Yemeni cultural objects recently seized by U.S. government, which will be held for safekeeping at the National Museum of Asian Art on behalf of the Republic of Yemen, pending a resolution of the conflict. 

Davis asked Guven to comment on the role of the private sector in protecting cultural property and cultural heritage.  Guven said that there is a common misconception that investors are indifferent, if not actively hostile, to laws and regulations that safeguard cultural heritage.  In fact, many of the wealthy clients of Cerberus Capital Management and other private equity firms also are patrons of the arts.  They don’t want to invest in businesses or projects that cause damage to cultural property or endanger cultural heritage.  The problem is that the executives and fund managers who run Cerberus don’t speak the language of cultural preservation.  Guven described her role as akin to that of a translator.  She makes sure the legal and regulatory frameworks that protect cultural heritage are communicated to the relevant decision makers using terminology that is familiar to people whose background is in finance and accounting (due diligence, liability, risk management, etc.)  Some of her biggest challenges are spotting the potential for investments to damage or endanger cultural property, connecting the dots, and navigating inconsistencies in regulatory regimes among jurisdictions.

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 3 of 3)

This is Part 3 out of 3 of a post recapping this session; if you wish to consult the earlier posts, see Pt. 1 and Pt. 2 of the series.

By Charles Bjork

To conclude the discussion, Dadwal asked the panel members to speculate about future of international law in space and in the oceans.  In Pritchard-Kelly’s view, the most effective tools for promoting safety and sustainability in space in the near future will be the national licensing of objects launched into space and the registration of all such objects with the United Nations, as required by the Registration Convention of 1975.  States are responsible for authorizing activities in space undertaken by private actors that are subject their respective jurisdictions, pursuant to Article VI of the 1967 Outer Space Treaty.  States with active space industries accomplish this task through licensing.  A state that has ratified the 1972 Liability Convention assumes absolute liability for damages caused when an object launched into space from its jurisdiction crash lands on Earth and fault-based liability for damages caused when an object launched into space from its jurisdiction collides with another object.  These liability provisions provide strong incentives for states to create robust licensing regimes for private actors that launch satellites into orbit and vehicles into space. 

As concerns about the accumulation of debris orbiting the Earth continue to mount, Pritchard-Kelly anticipates that national licensing authorities will come under increasing pressure to adopt further measures to reduce the volume of debris.  An early example is the rule adopted by the Federal Communications Commission in 2022 that will require the operators of low-orbit telecommunications satellites launched from the United States to de-orbit their defunct satellites as soon as practicable, but no later than five years after a satellite has reached the end of its working life.  Pritchard-Kelly expects licensing authorities in other jurisdictions to follow the FCC’s lead. 

NASA employee, Public domain, via Wikimedia Commons

Villegas contrasted the state of international law governing the oceans with the state of international law governing space.  The successful conclusion of the negotiations to draft a new multilateral treaty to protect marine biodiversity in areas beyond national jurisdictions is an important milestone.  However, assuming that the new BBNJ treaty achieves the requisite number of ratifications to enter into force, its provisions will need to operate in tandem with the provisions of the 1982 Convention on the Law of the Sea, as well as the provisions of treaties that protect marine ecosystems at the regional level.   These in include the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region and the Barcelona Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean, among others.  There is a real danger that having so many overlapping and competing legal regimes in place will hinder, rather than advance, the sustainability of marine ecosystems.  States must coordinate their implementation of these treaties in order to ensure that their provisions are applied in a consistent and complimentary manner.

The international legal regime governing the use of space suffers from the opposite problem.  Since the Moon Treaty entered into force in 1982, no new multilateral treaties governing operations in space have been negotiated, nor have any of the prior treaties been amended via protocol.  In the interim, the relentless growth of the satellite telecommunications industry and the emergence of new private sector actors eager to pursue the commercial exploitation of space have exposed significant gaps in the legal framework.  Despite the widely shared consensus that the existing space treaties need to be updated to reflect advances in technology and the growing role of private sector actors, few observers expect that to happen anytime soon, particularly given the rising tensions between the U.S. and the E.U. on the one hand, and China and Russia on the other.

Nelson expressed a more optimistic view on the prospects for change, insisting that the international community of nations is capable of acting in its collective best interest when the need arises.  In fact, it was the intense rivalry between the U.S. and Soviet Union during the space race of the late 1950s and early 1960s that provided the impetus for drafting of the 1967 Outer Space Treaty, which established the core principles that space should be used for the benefit of all people, should not be subject to sovereign claims, and should be kept free of weapons of mass destruction.  Pritchard-Kelly agreed with Nelson’s assessment, noting that the development and advancement of international law is often crisis-driven.  She then described a plausible scenario in which a satellite manufactured in the U.S. for a Latin American customer fails to enter the Earth’s orbit after being launched from the spaceport located in French Guyana operated by Arianespace Group, a consortium of European space companies.  Debris from the satellite is scattered over three countries in East Africa, causing both property damage and loss of life.  An accident like this, involving multiple private actors in multiple jurisdictions, could provide the impetus for updating the Liability Convention to better reflect the growing role of private actors in space.

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 2 of 3)

By Charles Bjork

For Pt. 1 of the post recapping this session, see ASIL 2023 Annual Meeting Recap:  Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3).

Pritchard-Kelly noted two other important differences between the physical environment of space and the physical environment of the oceans.  First, the oceans are more accessible, making it far less costly and more technologically feasible remove debris from the oceans than it currently is to remove debris from space.  Second, unless plastic debris is removed from the oceans, it will remain there forever.  Space debris orbiting the Earth has a more limited lifespan.  Over time, its velocity will diminish until it eventually falls out of orbit.  When it does, all but the very largest pieces debris will burn up and disintegrate upon contact with the Earth’s atmosphere.  The primary danger posed by most space debris is its potential for colliding with functioning satellites and space vehicles while it remains in orbit. 

Dadwal noted that the European Space Agency recently unveiled its “Zero Debris” initiative, which aims to eliminate the generation of new space debris in low-Earth orbits by 2030.  She then asked the panel members what steps must be taken to meet this ambitious goal.  The good news, as Pritchard-Kelly observed, is that the dangers posed by space debris are now universally recognized and acknowledged.  State actors and private sector actors, regardless of their nationality, want to protect their expensive space assets from damage and loss.  The European Space Agency, NASA, and other national space agencies have responded by adopting soft-law instruments to encourage the adoption of more sustainable practices in the design of new satellites and space vehicles.  Contractors who wish to do business with these space agencies must adhere to their sustainable design principles.  National regulatory bodies that license satellites are increasingly open to enacting sustainable design regulations.  As a result of these soft law and regulatory initiatives, the next generation of satellites are being “designed for demise,” meaning that their component materials and the methods used to construct them are being altered to ensure that they will rapidly burn up when they de-orbit and reenter the Earth’s atmosphere, thereby minimizing the chances that any debris will be left behind.  Nelson stressed that these soft-law instruments have significant limitations and are no substitute for updating the now woefully out-of-date Space Liability Convention of 1972.  Nevertheless, they are a step in the right direction.

NASA image, Public domain, via Wikimedia Commons

Pritchard-Kelly cautioned that even if the European Space Agency’s Zero Debris goal is met, we still have to find ways to remediate the enormous amount of space junk currently in orbit, as well as the new space junk that will be generated when older satellites, that were not built using sustainable design principles, reach the end of their working lives.  Encouragingly, a handful of entrepreneurs have founded start-up companies to determine if there is sufficient demand from the private sector to pay for the removal of space junk on a commercial basis.  It remains to be seen if any of these start-ups will prove to be commercially viable in the long-run. 

An even thornier issue for the international community to resolve is the potential use of anti-satellite (ASAT) weapons to incapacitate or destroy satellites for strategic purposes.  To date, only handful of jurisdictions (the U.S., Russia, China, and, most recently, India) have shot down some of their own satellites to demonstrate their ASAT capabilities.  While no one questions the inherent right of states to defend themselves, the ASAT testing that has been done to date appears to have generated significant amounts of space debris.  The volume of debris, and the potential for it to cause collateral damage, has ended speculation that ASAT weapons could be routinely used to dispose of older, decommissioned satellites.

Dadwal asked Villegas to comment on recent developments in international law governing marine resources and their implications for the future development of space law.  Villegas began with a brief overview of the new multilateral Convention on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdictions (popularly known as the BBNJ Treaty).  He explained that the new treaty was drafted by the Intergovernmental Conference on Marine Biodiversity convened by the United Nations in 2017.  After nearly six years of negotiations, the Intergovernmental Conference reached an agreement on the text of new treaty on March 4, 2023.  It establishes a framework for the creation of marine-protected areas and the enactment other conservation measures in the high seas, beyond the jurisdictions of individual nation states.  Villegas expects the Intergovernmental Conference to formally adopt the draft text of the proposed BBNJ Treaty at its next meeting in June and to move expeditiously to open the treaty for signature and ratification. 

Last year, at a meeting in Nairobi, the 175 member states of the U.N. Environmental Assembly, the governing body for the U.N. Environmental Program, passed a resolution to draft another new multilateral treaty to reduce plastic pollution.  A key component of the proposed treaty will be to effectively manage the “total life cycle of plastics,” from their initial production, to their reuse, recycling, and disposal in a responsible manner that minimizes the risk of pollution.  This holistic approach to the management of plastics could serve as model for a future convention governing the lifecycle of objects that are launched into space.  Villegas cautioned that significant fault lines have emerged between states that favor binding commitments to reduce the use of plastics and to practice responsible disposal methods and states the favor a more aspirational, soft-law approach. 

Turning next to the ever-expanding role private actors in space, Dadwal asked the panel if this phenomenon helps or hinders efforts to reduce the volume of space junk and promote greater sustainability.  Pritchard-Kelly said there is no question that the commercialization of space will increase the volume of space junk in the short term.  She noted that when the multilateral treaties that govern the use of space were negotiated in the late 1960s and early 1970s, only state actors (and, in practice, only the U.S. and the Soviet Union) had the capacity to launch objects into space.  Shortly thereafter, in the late 1970s, the telecommunications satellite industry began to emerge.  Today, as the number of commercially operated satellites continues to grow, private actors are on the cusp of developing whole new industries, such as space mining, space manufacturing, and even space tourism.  Yet, the existing legal framework for space operations has very little to say about the regulation of private sector actors.

In the absence of a more robust regulatory framework, Pritchard-Kelly anticipates that economic incentives will drive the private sector to embrace greater sustainability.  Villegas concurred with this assessment, noting that companies like Elon Musk’s SpaceX, Jeff Bezos’s Blue Origin, and Richard Branson’s Virgin Galactic are pioneering the development of reusable launch systems and reusable space vehicles.  These new businesses will not be scalable or profitable in the long-term unless recyclable components become the norm, not the exception, in space.  The private sector’s willingness to embrace reuse and recycling – even if motivated more by economic necessity than principle – will significantly reduce the volume of new space junk generated in the future. 

While government regulatory agencies will continue to play an important role in promoting sustainability, Nelson observed that they are subject to significant limitations.  .He cited the turf wars that occasionally erupt between NASA, the Federal Aviation Administration, the Federal Communications Commission, and other federal agencies responsible for overseeing various aspects of the emerging space industries.  He also cited a lack of consistency in regulatory regimes and licensing standards among jurisdictions.  Nelson noted that insurance companies, which act as informal regulators in space, often operate more rationally and predictably than their governmental counterparts, which may be constrained by industry lobbying and political meddling.  Pritchard-Kelly wholeheartedly agreed with Nelson on the critical role played by the insurance industry in promoting safety.  She expects insurers to lead the way in establishing minimum standards of conduct for emerging space industries by penalizing companies whose operations cause accidents resulting in losses and by refusing to insure companies that fail to adopt best practices. 

ASIL 2023 Annual Meeting Recap: Junk in International Law: Can We Avoid the Oceans’ Fate in Outer Space? (Pt. 1 of 3)

By Charles Bjork

The annual meeting of the American Society of International Law, held each spring in Washington, D.C., usually features at least one panel sponsored by the Space Law Interest Group.  In prior years, some of these panels have focused on the kind of attention-grabbing topics that have inspired generations of Hollywood screenwriters, such as how the nations of the world might respond if scientists determine that an asteroid is on course to strike the Earth and cause catastrophic damage.  The subject of this year’s space law panel was a bit more mundane:  the problem of space junk and what to do about it.  Space junk is defined as any artificial (human-made) object within the Earth’s orbit that no longer serves a useful purpose.  The term encompasses everything from defunct satellites and spacecraft, to the remnants of launch vehicles, to tiny fragments left behind after the disintegration or collision of other pieces of space debris.  Panel members were asked to consider whether, and to what extent, international legal regimes developed to protect marine ecosystems and remediate pollution in the world’s oceans could be applied to address the issue of space junk.        

NASA, CC0, via Wikimedia Commons

The panel consisted of Timothy G. Nelson, a partner at Skadden, Arps, Slate, Meagher & Flom, LLP, specializing in international litigation and arbitration; Ruth Pritchard-Kelly, a senior advisor on regulatory and space policy at OneWeb, a satellite telecommunications network based in London; and Andrés Villegas, co-chair of the International Litigation and Arbitration Division at Sygna Partners (Paris) and a former senior legal advisor at the Ministry of Foreign Affairs of the Republic of Colombia.  Viva Dadwal, an associate attorney at King & Spalding specializing in international arbitration, served as the moderator.

Dadwal provided a contextual framework for the discussion by sharing some rather alarming statistics comparing the enormous amount of plastic waste that has accumulated in the world’s oceans with the rapid proliferation of space junk orbiting the Earth.  Each year more than 300 million tons of plastics are produced worldwide, and at least 14 million tons of plastic waste end up in the world’s oceans.  Plastics now account for roughly 80 percent of all marine debris, from surface waters to deep-sea sediments.  Unlike organic matter, plastics do not decompose and so will remain present in marine ecosystems indefinitely.  Nevertheless, many commonly used plastics are prone to breaking down over time into smaller and smaller particles, known as micro-plastics.  Of the estimated 50 to 70 trillion pieces of plastic in the oceans, the majority of these are micro-plastics.  By 2050, according to some estimates, there may be more plastics in the oceans (by weight) than fish. 

Although space junk is a more recent phenomenon than plastic waste in the oceans, the accumulation of debris orbiting the Earth is no less alarming.  According to models produced by the European Space Agency’s Office of Space Debris, there are currently an estimated 36,500 objects greater than ten centimeters in diameter within the Earth’s orbit.  The volume of smaller space debris is even greater:  an estimated 1 million objects between one and ten centimeters in diameter and an estimated 130 million objects between one millimeter and one centimeter in diameter.  The danger is that repeated collisions of space debris over time could result in a cascade effect, in which larger and larger clouds of accumulated debris will make it increasingly difficult for satellites to operate in Earth’s orbit.  This phenomenon, also known as the “Kessler syndrome,” could, in a worst-case scenario, make it impossible to safely launch new satellites into orbit around the Earth or to safely launch exploratory vehicles into outer space. 

To kick off the discussion, Dadwal quoted from a letter to editor published in the March 10^th issue of Science magazine, in which several prominent scientists asserted that, like the high seas before it, the Earth’s orbit is being treated as a global commons, and that the exploitation of what appears to be a free resource obscures the true cost of environmental damage.  The authors of the letter went on to call for international cooperation to address the urgent need to reduce the volume of space debris before the Earth’s orbit suffers the same fate as the world’s oceans.  Dadwal asked Nelson if he agreed with the underlying premise of the scientists who wrote the letter to the editor, namely that the international legal regimes developed to protect the world’s oceans can be applied to remediate environmental damage in space.

Nelson agreed with the underlying premise in principle.  Nevertheless, he emphasized that there are critical differences between the physical properties of space and those of the world’s oceans.  These differences are easily obscured by pop cultural references that equate space travel with maritime navigation.  Long before space exploration became a reality, science fiction writers deployed maritime terminology to describe what are now universally referred to as spaceships.  So ingrained in our popular culture are these maritime metaphors (These are the voyages of the starship Enterprise.) that it is tempting for the casual observer to assume that space law can simply adopt the legal paradigms designed to safeguard the oceans.  In practice, Nelson noted, these paradigms must be modified to reflect the profound physical differences between the maritime environment and the space environment.

Foremost among these physical differences is the fact that space debris orbiting the Earth at very high speeds possesses enormous amounts of kinetic energy.  As a result, even debris as small as one centimeter in diameter has the potential to cause catastrophic damage if it collides with a satellite or a space vehicle.  Any new legal regimes developed to address the problem of space junk must take this intrinsic danger into account.  In contrast, human-made maritime debris, known as flotsam and jetsam, poses little risk to travel and shipping on the high seas.  Larger ocean-going vessels can sail through it, and smaller vessels can navigate around it. 

ASIL 2023 Annual Meeting Recap : “International Law as a Tool Against Democratic Backsliding”

By David Isom

In recent years, events in countries including Brazil, Hungary, India, Indonesia, Israel, Poland, the Philippines, Russia, Turkey, the United States, and many others have led to fears that democracy worldwide is backsliding. With antidemocratic leaders co-opting the language of human rights to serve their own purposes, can international law guide the public regarding what really are and aren’t matters of human rights? Can international law offer protection for human rights defenders who are increasingly under attack, both figuratively and literally? In the face of democratic backsliding, what role can national courts play in promoting human rights? At this year’s American Society of International Law Annual Meeting in Washington, DC, Professor Diane Desierto of Notre Dame Law School moderated a session titled “International Law as a Tool Against Democratic Backsliding” which addressed such questions and the broader role that international law might play in countering antidemocratic trends.

The panel featured Shahrukh Alam, a human rights advocate at the Supreme Court of India; James Cavallaro, Executive Director of the University Network for Human Rights and a lecturer at Yale Law School; Professor Olabisi Akinkugbe of Dalhousie University Schulich School of Law; and Omar Shakir, Israel and Palestine Director at Human Rights Watch. The discussion of how a diverse range of groups (theocrats in the United States, Hindu nationalists in India, neo-imperialists in Russia) have all sought to justify their positions using the language of human rights law was fascinating, and it was interesting to hear the panelist’s views of how democratic backsliding is or is not happening in the countries on which they focus. As always, time constraints prevented the discussion from delving deeply into the subject, but it was a very strong session on a timely topic and a highlight of the conference.

From left to right: Diane Desierto, Olabisi Akinkugbe, Omar Shakir, James Cavallaro, Shahrukh Alam (on screen)

Participating from India by video, Alam began the discussion by calling the use of the vocabulary of human rights law to justify antidemocratic action as an “autoimmune disorder of democracy,” citing hate speech in India by the ruling caste and the Bharatiya Janata Party towards the country’s Muslim minority as an example. Further aggravating this problem, Alam said, is the colonial criminal justice system India inherited, which puts arrest at the beginning of the procedural process rather than at the end of an investigation: police can keep people in prison for 90 days without charges, and holders of public office are immediately suspended from such roles—making it a powerful weapon against political enemies. Increasingly, arrests for ordinary acts of speech and protest—particularly of Muslims and members of lower castes—are being made under the special terror acts instituted in the wake of the 2008 Mumbai attacks, which allow detention on terror charges for up to 180 days.

Cavallaro said that the human rights movement has traditionally advocated for a thin notion of human rights, primarily by reacting to atrocities—environmental and economic justice did not have much of a presence in human rights activism until relatively recently. Vladimir Putin—who has justified Russian aggression on the grounds of “self-determination of the Russian people”—does not have a monopoly on distorting human rights law—so how can ordinary people distinguish between what are real human rights issues and what aren’t? Few media sources are capable of covering this well, but we can delegate to human rights organizations that work to document such phenomena. Finally, he said, the fact that the terminology of human rights law has been co-opted should be seen as a sign of its arrival as a real influence.

Akinkugbe pointed out that democratic backsliding isn’t happening everywhere—for example, the governments in Kenya, South Africa, and Nigeria have allowed recent protests by opposition parties (though recent events in Zambia and elsewhere show that this is not the case across all of Africa). He also observed that democratic backsliding happens differently in different places, and said that we should distinguish the co-optation of human rights language by political parties trying  to rally their bases from actual democratic backsliding. In various national courts in Africa, claimants have adopted the language of human rights to get a foothold in court, and such “democratized disinformation” continues to be a challenge.

Shakir stated that while it might be fair to say that democracy specifically for Israelis has backslided, it’s more difficult to say this in the broader regional context, as democracy for Palestinians has been lacking for decades. He agreed that the general public might well be persuaded by human rights offenders who claim that they are following human rights doctrine, but said that the work of factfinders like Human Rights Watch is the best remedy, citing the 2018 Gaza protests (with war crimes by both Israeli armed forces and Palestinian armed groups documented by Human Rights Watch) as an example. Shakir also noted that as a region, the Middle East has few mechanisms for human rights (no regional human rights court, and little respect for human rights in domestic courts), which allows such atrocities to go unchecked.

ASIL Jus Gentium Award Nomination Call

Do you have a go-to website for international law research? Maybe something that works well but isn’t as recognized as it could be? The American Society of International Law (ASIL) recognizes one such website each year through the Jus Gentium Award. The ASIL International Legal Research Interest Group Jus Gentium Award Committee is seeking nominations for non-commercial online databases, data sets, and resources covering international law that are accessible to academics, practitioners, as well as the public at large. We focus on resources that enhance scholarship and open access to legal information. Prior award winners of the past three years can be found here: www.asil.org/community/interest-groups.

If you know of such a site, or have any favorites that could potentially fit the description above, please send them to a member of the committee by February 24th, 2023. All we need is the URL to the site and maybe a few comments on why you find it helpful. No formal statement is required. Send your ideas to Mike McArthur (michael.mcarthur@law.duke.edu), Jessica Pierucci (jpierucci@law.uci.edu), or Meredith Capps (meredith.a.capps@vanderbilt.edu) and help us highlight those sites that assist our work!

Image by Nataliya Vaitkevich, from Pexels.

ASIL 2017 Recap: Claims against the United Nations: From Within and Without

Portraits UNPGA70 Staff

By: Loren Turner

At 9:00 a.m. Friday, April 14, 2017, during ASIL’s annual meeting, a panel of international law experts assembled to address the accountability of the United Nations in its peacekeeping operations (or, in practical terms, lack therof).  The topic is getting increasing attention in light of recent evidence that U.N. peacekeepers caused the cholera outbreak in Haiti and sexually-abused children and women during peacekeeping operations in Central Africa.

The panelists were: Simon Chesterman, Professor of Law at the National University of Singapore; Andreas Vaagt, with the United Nations Secretariat, and Patricia Galvao Teles, with the International Law Commission.  Alejandro Sousa, senior legal adviser to the U.N. General Assembly, moderated the discussion.

Professor Chesterfield unpacked the concept of accountability into two inquiries: (1) to whom is the United Nations accountable and (2) for what?  In short, the answers are: (1) unfortunately, no one – yet; and (2) violations of humanitarian law.

In 1952, when there were 60 countries that comprised the United Nations, a committee of the American Society of International Law (referenced here) questioned whether the U.N. was subject to the laws of war.  After all, the U.N. was not, itself, a party to the Geneva Conventions or any other treaties.  It was not until the Kosovo intervention in 1999 that it was decided yes, humanitarian law applies to U.N. peacekeeping operations because: (1) the U.N. is an independent actor – separate from member States – when it exercises peacekeeping functions under the U.N. Charter (2) customary law supports humanitarian intervention in certain situations and the laws of war thus apply to the actors performing the humanitarian intervention and (3) the U.N. increasingly exercises state-type activities, such as in Kosovo when it set up panels to prosecute criminals and freeze assets.

Yet, despite theoretical application of laws of war to U.N. peacekeeping operations, the practical reality is that the U.N., as an international organization, has absolute immunity.  Additionally, individual U.N. officials have immunity as well.  When the U.N. admitted its role in Haiti’s cholera epidemic, victims brought suit in U.S. federal court.  The Second Circuit dismissed the case for lack of subject matter jurisdiction, finding the U.N. was indeed immune under Section 2 of the Convention of the Privileges and Immunities of the United Nations, which states “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity…” So, victims in places where the U.N. operates, such as in Haiti, have no avenue to contest activities or hold the U.N. accountable.  The organization that is supposed to enforce the rule of law around the world is not itself accountable.

Mr. Vaagt spoke on behalf of the United Nations. He said enforceability of the rule of law related to personnel actions depends on member states. Once article V or VI of the U.N. Charter is invoked, the status of forces agreement (SOFA) between the U.N. and the host country applies.  Under the SOFA, the state(s) providing humanitarian personnel maintain exclusive jurisdiction of those individuals.  The concept of exclusive jurisdiction also applies to NATO forces going into NATO countries.  Once the U.N. refers a case to a state, it is up to the state to investigate and prosecute the offender.  General Assembly resolution 62/63 urged states to exercise that jurisdiction.  Yet, to date, despite approximately 100 case referrals, not a single state has pursued charges.  

As to the immunity of U.N. staff, only official high level U.N. officials have diplomatic immunity.  But, there are other U.N. employees who have functional immunity, which can be waived by the U.N. Secretary General.  Officially, the U.N. has a zero tolerance policy and Secretary-General Guterres recently released a strategy to end impunity for sexual exploitation and abuse system-wide.  It is too early to comment on the effect of that strategy. Regardless, unless waived by the Secretary-General, immunity stands.

Ms. Galvao Teles said that the issue of U.N. accountability is not a new one.  There are three strategies that have been raised to attempt a balance between immunity and impunity: (1) revise the 1946 Convention on the Privileges and Immunities of the United Nations; (2) envision a convention on the jurisdictional immunities of international organizations; or (3) tackle the immunity question within the context of “settlement of international disputes” to which international organizations are parties.  In Ms. Galvao Teles’s opinion, none of these strategies is appropriate.  It is risky to revise agreements that already contain good law.  Given the current international political climate, the Secretary-General says he is happy to have what we have rather than risk getting less.  Maybe it is not the rules that need to change, but the implementation.  We could clarify when a waiver of immunity would be appropriate.  We could define better the phrase “private claim.” We could explore a sanctions-type system to handle claims rather than relying on judicial resolution.  All of these are better options than revising an established treaty.  As to the second idea of envisioning something new?  Not going to happen.  What would it add?  Again, it is probably an issue about new strategies of implementation rather than the creation of new rules.  The last idea, the topic of tackling the immunity question within the context of settlement of international disputes, was added at the sixty-eight session of the International Law Commission.  Ms. Galvao Teles thinks it is more likely that the International Law Commission would provide draft clauses to address the issue of immunity – not an entire convention.

[For more information about this program, read the official recap on ASIL Cables].

ASIL 2017 Recap: Debate: Bombing Terrorist Revenue: Legitimate Military Strategy or War Crime?

By: Amy Flick

One of the Friday sessions at ASIL’s 2017 annual meeting was staged in the form of a debate on the question of whether the practice of targeting revenue sources of ISIL (like oil trucks and infrastructure and cash storage sites) violates international humanitarian law. The moderator, Christie Edwards of the American Red Cross International Humanitarian Law Division, began the program by explaining the debate format, with the speakers taking assigned positions which might, or might not, reflect their own views.

The affirmative side, supporting targeting of revenue sources as legitimate military objects, led off with Professor Ryan Goodman of New York University School of Law. He argued that it is lawful to target objects under current law, even if the law should be changed, and that under debating rules, the proof is on the negative team.  Article 52(2) of the Additional Protocol I of the Geneva Conventions, on general protection of civilian objects, limits attacks strictly to military objectives, with a definition of targetable objects as those making an effective contribution to military action. He cited Burrus Carnahan’s writings on Additional Protocol I, which include examples of economic targeting such as the destruction of raw cotton during the U.S. Civil War, and the more recent example of Afghanistan, where all 28 members of NATO have authorized targeting drug labs. Professor Goodman acknowledged that the prevailing academic opinion is that economic targets are not legitimate targets, but he called most of the analysis of the question in the academic literature superficial. He also referred to ICRC Commentaries requiring military control over an object as a limit. Since ISIL controls the oil fields and funds its operations and purchases weapons through the sale of oil, those qualify as legitimate targets. Where states have drawn the line is targeting people, even if they are working in revenue-generating operations, if they are not directly involved in hostilities.

Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory University School of Law, argued for the negative side, and disagreed on the debate’s burden of proof, saying that the party describing a target as outside IHL protections has the burden of proof here. Because the object and purpose of the law of armed conflict is to minimize civilian suffering, the law of armed conflict limits targeting to military objectives and combatants. The first step in the process is to determine if the target is a military objective. Article 52(2)’s definition of targets is combatants and equipment. Donating money to a terrorist group does not make one a target, even if the money might be used for objects that might be used in conflict. Just because something is done frequently, or feels good, an argument for “morally legitimate” does not make economic targeting legal in the law of armed conflict. She argued that the risk of turning money into a military objective by nature is that the slippery slope leads to targeting agriculture, banks, and the environment.

Maj. Gen. Charles Dunlap, Professor and Executive Director of the Center on Law, Ethics and National Security at Duke Law School, returned to the affirmative side of the argument. Professor Dunlap disagreed with the slippery slope argument and said that the point of the debate is the narrow question of whether the target has a direct connection with objects on the battlefield. ISIL fighters regard monetary payments as income for jihad. Two-thirds of ISIL’s budget goes to paying fighters and buying equipment. He cited an article from The Atlantic from March 6, 2017 (which itself cites a February 2017 report from The International Centre for the Study of Radicalisation and Political Violence) that found that, when the oil fields were bombed, ISIL cut fighter pay by 50%, and many left the battlefield. An attack that removes fighters from the battlefield without civilian casualties serves the idea of international humanitarian law. U.S. forces even dropped leaflets to notify drivers before oilfields were bombed. Professor Dunlap stressed that these tactics are only used when it is shown that eliminating these economic targets will affect the battlefield. The alternative is for military operations on the ground to have to root fighters out from urban areas house by house.

The final speaker of the debate was Professor Jens David Ohlin of Cornell Law School, arguing for the negative side. He started with a declaration that “slippery slope is an understatement.” Article 52(2)’s not having used the word “direct” does not mean that it allows revenue-producing site bombings. There must be a causal nexus to the military outcome, and it must be relatively certain that destruction of the target confers a military advantage. Bombing to demoralize the civilian population is not enough of a military nexus; bombing coal and steel plants is. Three steps are needed with economic targets to show a military purpose: a revenue-generating product is produced; the product is sold; and the revenue is used to buy weapons. This is not enough to establish a causal connection a stay within the requirement of conferring a definite military advantage.

On rebuttal, Professor Goodman reiterated that current law allows the slippery slope, even if the law should be changed. The travaux for Protocol I dropped “direct objects” and allowed indirect objects. Just as steel is turned into tanks, money creates fighters, and could even be traded directly for arms, eliminating one of the three steps. Rule 8 practice includes oil storage sites as military targets, as well as dual purpose structures like bridges; it does not allow bombing agriculture, with a disproportionate effect on civilians, or the World Trade Center, as an example of a structure too indeterminate to military objectives.

Professor Blank stated that she found assurances that there are limits and that states will be careful as insufficient. Making law for “bad terrorists” is not why a practice is allowed, because it becomes justifiable for other groups.

Professor Dunlap’s response was that the law requires care to be taken. Military forces must collect a lot of data or they cannot target, and IHL does not matter to groups who do not follow the law. The current situation in Syria and Iraq has seen a collapse of reciprocity. If we can eliminate fighters and weapons without civilian casualties, and there are no good other options, we should do it.

Professor’s Ohlin’s final response was that the affirmative side has argued that international law permits anything that is not prohibited, but IHL requires a presumption of civilian character, with proof that a target is a legitimate military target. The parties agree that analysis requires a definite military advantage; the disagreement is over what is definite.  He contended that the affirmative side distinguished unfairly between small and large powers based on how much of the economy must be crippled by the destruction of a target to diminish the combatant’s military capacity. Professor Blank agreed that the rules must be the same for state and non-state actors; targeting rules cannot be different based on whether the parties are good or bad.

[To watch the video of this program and others from ASIL’s 2017 annual meeting, visit ASIL’s YouTube channel.  For another recap of this program, visit ASIL Cables].

ASIL 2017 Recap: International Law and the Trump Administration: National and International Security

By: Loren Turner

During these first 100 days of a Donald Trump presidency, the American Society of International Law (ASIL) has led efforts to bring together experts from both sides of the political spectrum to talk about international law under the Trump administration. ASIL has produced a series of freely-available webinars that analyze the Trump administration and (1) the future of international agreements; (2) U.S. engagement with the United Nations; (3) U.S. participation in global trade agreements; and (4) the future of environmental agreements.

On Thursday, April 13, 2017, during ASIL’s annual meeting, experts assembled once again to discuss international law under the Trump administration, but this time through the lens of national and international security.  The program was certainly timely, as it occurred the same day we learned the United States had dropped the “Mother of All Bombs” on Afghanistan and accidentally bombed allies in Syria.

Benjamin Wittes of the Brookings Institution served as moderator to a panel of three experts on international law and politics: Shireen Hunter of Georgetown University’s School of Foreign Service; John Bellinger, legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration; and Elisa Massimino, the President and Chief Executive Officer of Human Rights First.

In her opening remarks, Shireen Hunter identified herself as the voice of “political realism.”  She said laws are the outcomes of social and political processes.  Law is important but it is politics that change things and the laws change when society and politics change.  International law succeeds when there are common interests.  For example, even during conflict, the mail still gets delivered.  Maritime trade continues because those common interests remain.  But international relations and the rule of law are based on power.  Those nations with power, use that power to get what they want and there is no enforcement mechanism that stops them.  Saddam Hussein bombed Saudi Arabia with impunity.  Russia annexed Crimea and the international community did nothing to stop it.  No one abides U.N. Security Council resolutions, which are supposed to be binding.  The ideal is to implement the rule of law but the reality is that international relations is based on power and is skewed. We need a balance of power before international law is respected. We need creative ways of encouraging international cooperation and hence strengthening international law.

On the topic of human rights and Syria, Ms. Hunter said that she witnessed the abuse of human rights rhetoric when she served on the United Nations Human Rights Committee.  The United States would claim to honor human rights, but then sell bombs to nations that routinely violate human rights.  We had waterboarding under the Bush administration.  Trump doesn’t really care about the Syrian people.  Syria is a test case of which nation is going to be the next hegemon in that part of the world. Humanitarian intervention is a new phenomenon and it causes a lot of deaths.  Look at Libya, at Iraq.  Bombing Syria for humanitarian reasons is a smokescreen.  If the Trump administration wanted to follow international law, it would conduct an investigation to make sure Assad really did employ those chemical weapons.

John Bellinger first identified Trump as a danger to national security in a blog post he wrote for Lawfare in 2015.  In August 2016, he joined a group of 50 other former G.O.P. national security advisers to publicly state that “Trump lacks the character, values, and experience to be President.”  Mr. Bellinger said there is significant cause for alarm, but there may also be rays of hope.  According to Mr. Bellinger, there are some serious lawyers that could be joining the Trump administration and, if they do so, the administration may begin to settle down.  Mr. Bellinger noted, however, that Trump is dividing the country and that it is extremely destabilizing when Trump says he doesn’t support the international obligations of the United States.

As to the topic of Syria, Mr. Bellinger said that Trump might have recklessly gotten to the right place.  We all know the Syria strike is not legal under international law.  Is it justified though? One of the most troubling images associated with the Syria strike is the photo of Trump getting briefed about the strike.  There were no lawyers in the room.  Did international law inform the decision at all?  Mr. Bellinger would not have wanted to wait for the results of a full investigation to confirm Assad released the chemical weapons, but international lawyers need to be consulted before a reaction like this.

Elisa Massimino began her remarks with the question: we haven’t reached 100 days yet, right?  Feels like 100 years.  According to Ms. Massimino, the Trump administration’s budget proposal for the United Nations speaks volumes as to what the administration thinks of human rights and norms. The administration’s focus is on hard security.  Yet, the foundation of human rights is the best way to achieve peace and security in the world.

Ms. Massimino argued that the refugee policy is a huge threat to the national security of the United States and also our allies in Europe.  Additionally, the administration’s rhetoric on refugees, torture, and increased prosecutions for illegal entry, all pose real concerns to those who want adherence to international law and national security.  Trump’s tweets are a big deal and “we are really concerned.”  It is not a coincidence that Assad attacked civilians with chemical weapons right after the administration said that removing Assad was no longer a priority.

According to Ms. Massimino, the Trump administration’s slogan of “America First” is code for isolationism.  The America First campaign might mean America, alone.  Launching missiles is not a strategy.  When the United States withdraws, others scramble to fill the void, and these others (Russia, China, etc.) are putting forth alternative views of how the world should work and these views are not based on rules and norms that promote international law and human rights.

So, what can we do, as international law practitioners and academics?   Both Mr. Bellinger and Ms. Massimino urged audience members to get out and educate the American public – at local, regional, and national levels.  Explain the value of international law, especially how it helps people in their daily lives (airline travel, receiving mail, buying goods at reasonable prices, etc.).  According to Ms. Massimino, “this is our moment as international lawyers and it is up to us whether we can rise to the occasion.”

[Visit ASIL’s YouTube channel to access the full video of this program and others from ASIL’s 2017 annual meeting. For another recap of this program, visit ASIL Cables].

ASIL 2017 Recap: Grotius Lecture: Civil War Time: From Grotius to the Global War on Terror

Civil Wars: A History in Ideas by Harvard University Professor David Armitage, 2017 Grotius Lecturer

War Time: An Idea, Its History, and Its Consequences by Mary L. Dudziak, Emory Law Professor and Distinguished Discussant of 2017 Grotius Lecture

[from left to right] ASIL President Lucinda A. Low, Dean of American University Washington College of Law, Camille A. Nelson, Harvard University Professor and 2017 Grotius Lecturer, David Armitage, and Emory Law Professor and Distinguished Discussant, Mary L. Dudziak

By: Amy Flick

The American Society of International Law (ASIL) kicked off its 111^th annual meeting in Washington, D.C. on April 12, 2017 with its 19th annual Grotius Lecture. The 2017 Grotius Lecturer was David Armitage, Lloyd C. Blankfein Professor of History at Harvard University, and Distinguished Discussant Mary L. Dudziak, Asa Griggs Chandler Professor of Law at Emory University School of Law.

The program was introduced by Camille Nelson, Dean of American University Washington College of Law. She remarked that Professor Armitage and Professor Dudziak have each published on the subject of civil wars. Since modern conflicts do not fit into a classical international law model of conflicts between states, a discussion between historians on whether international law applies to civil wars is an appropriate topic for annual meeting.

Professor Armitage’s book is Civil Wars: A History in Ideas, which Professor Armitage acknowledged was inspired by Professor Dudziak’s book War Time: An Idea, Its History, Its Consequences. Professor Armitage observed that civil war is a recent field of study. History has traditionally been separated into war and peace times, with war considered temporary, but with modern conflicts, it is difficult to determine when wars begin or end. Civil wars are not declared, they resonate even after a conflict ends, and they are prone to recur. Post World War II has been an age of civil wars, with 20 on average at any one time, and consequences arising from internal wars becoming international through intervention and outside combatants.

Professor Armitage explored the history of the study of civil war, beginning with the Romans, who likened them to natural phenomena like volcanoes. Grotius distinguished between public and private wars, classifying civil war as a public war against the same state, and finding any peace preferable to civil war, with civil wars never categorized as just wars. By contrast, Vattel disagreed with Grotius on the existence of private war, and positing that a civil war could be a just war if evils within a state are intolerable. His book The Law of Nations influenced 18^th and 19^th century United States thought and was cited in the Prize Cases, 67 U.S. 635 (1862). “When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” The Lieber Code, though, did not distinguish between insurrection and civil war, and defined the 1860s U.S. conflict as a rebellion, not a civil war, allowing the suspension of habeas corpus.

Professor Armitage brought the lecture to the current era with the extension of the Geneva and Hague Convention protections to internal conflicts with Article 3 of the Geneva Conventions and the 1977 Protocol II. In discussing the current Syrian conflict, he addressed the problem of language. Assad has called the conflict of 2011-2012 an insurrection, not a civil war. The ICRC confirmed it as an “armed conflict not of an international character,” covered by international humanitarian law. Professor Armitage pointed out the political reluctance to call a conflict a civil war, with definite declarations and peace treaties, even though since World War II there have been more peace treaties for civil wars than for inter-state conflicts. He concluded by calling this an urgent moment in history to define what is a civil war and what we value, as more political disputes are being described as “civil wars.”

Professor Dudziak found the categorization of war in categories of civil war and its opposite inter-state war as useful, but remarked on another category of war, with examples from 1864 of the United States Civil War and the U.S. Indian Wars. The U.S. Civil War was considered a “real war” in legal history and treated as fitting in the Lieber Code definition of civil war as an appropriate example of the use of war powers. The carnage of the civil war created widespread suffering which the public had to respond to by creating a “community of suffering” and humanizing the other side. By contrast, the Indian Wars of the 19^th century have not been considered civil wars. Native Americans were considered barbarians, outside the borders of civilization and outside non-combatant immunity. The Lieber Code limits did not apply to “savages.” The exception of uncivilized people from protection culminated in the Sand Creek massacre of the Cheyenne.

Professor Dudziak concluded by declaring that in the late 20^th and early 21^st centuries, peace is not a time, it is an identity for people isolated from the battlefield. The absence of shared suffering has created an American apathy about war. Ending on a more hopeful note, she asked “Wouldn’t it be great if people could be brought together in peace instead of suffering?”

[Check out ASIL’s YouTube channel for the full video of the 2017 Grotius Lecture. For another recap on this program, visit ASIL Cables].