A footnoted version of a speech delivered by Harold Hongju Koh, Legal Adviser, U.S. Department of State, on September 18, 2012, at the USCYBERCOM Inter-Agency Legal Conference on the Roles of Cyber in National Defense, at Fort Meade, Maryland.
In 2011, the White House issued the International Strategy for Cyberspace, which noted that “[t]he development of norms for state conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete. Long-standing international norms guiding state behavior—in times of peace and conflict—also apply in cyberspace.” However, the document cautioned that the “unique attributes of networked technology require additional work to clarify how these norms apply and what additional understandings might be necessary to supplement them.”
On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace. At a conference sponsored by United States Cyber Command (USCYBERCOM), Mr. Koh offered brief answers to what he labeled the “fundamental questions” on the issue. He also identified several “unresolved questions” with which the United States would likely be forced to grapple in the future. Since the speech had been fully cleared in the interagency process, it can be viewed as reflecting the U.S. Government’s views on the issues, not just those of Mr. Koh or the State Department.
The timing of the speech was propitious. Less than three weeks earlier, NATO’s Cooperative Cyber Defence Centre of Excellence (CCD COE) had released a draft the long-awaited Tallinn Manual, due for formal publication in early 2013. The Manual is the product of a three-year project sponsored by the Centre in which an “International Group of Experts” examined, inter alia, the very issues cited in the Koh Speech. Participants included distinguished legal academics and practitioners, supported by a team of technical experts. USCYBERCOM, the International Committee of the Red Cross, and NATO each provided an observer who participated actively throughout the project, albeit in a non-voting capacity.
The Tallinn Manual consists of “rules” adopted unanimously by the International Group of Experts that are meant to reflect customary international law, accompanied by “commentary” that delineates their legal basis and highlights any differences of opinion among the Experts as to their interpretation in the cyber context. A select group of peer reviewers offered comments on the various drafts, as did a number of states that were willing to informally and unofficially do so. The author served as Director of the Project.
The relative congruency between the U.S. Government’s views, as reflected in the Koh speech, and those of the International Group of Experts is striking. This confluence of a state’s expression of opinio juris with a work constituting “the teachings of the most highly qualified publicists of the various nations” significantly enhances the persuasiveness of common conclusions. Of course, the limited differences that exist as to particular points of law render the respective positions on those points somewhat less compelling.
This article serves two purposes. First, it functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual. The comparison is particularly apropos in light of the parallels in their content. Second, drawing on the Tallinn Manual, the article provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech. In doing so, it usefully catalogues the various competing interpretive perspectives. The article is crafted around Mr. Koh’s “Questions and Answers,” which are reordered topically and set forth at the beginning of each section.
In recent years foreign investors have used a rapidly expanding network of bilateral and multilateral investment treaties to directly sue states before international tribunals for violations of international law. There have now been hundreds of such lawsuits, with tribunals occasionally granting investors massive damage awards. In the process of resolving these disputes, tribunals announce and apply new rules of law. This brave new world of international investment law (“IIL”) has emerged as one of the most dynamic and controversial areas of international law today. In this Article I argue that the IIL system can be usefully analogized to a domestic-law administrative agency, where significant regulatory power is transferred to expert decision-makers acting on behalf of political principals. Viewing IIL as an agency highlights the IIL system’s major weakness: the lack of sufficient mechanisms of political control by states. Drawing on domestic administrative practice, I suggest reforms designed to enhance control by adapting domestic-law systems of notice-and-comment and the legislative veto. Doing so promises to ensure states a more adequate degree of control over IIL outputs.
In June 2010 in Kampala, Uganda, the states that are party to the Statute of the International Criminal Court agreed to amend the ICC Statute to add the crime of aggression to the Court’s jurisdiction. One of the key compromises that made this possible was the adoption of a U.S.-proposed “understanding” which provided that the aggression amendment should not be interpreted as creating a right for national courts to prosecute the crime of aggression under universal jurisdiction. If, however, national courts already possess the right to do so under customary international law, stemming from the Nuremberg precedent, then the understanding will end up failing to protect U.S. officials from the specter of potential prosecution for the crime of aggression in foreign courts around the globe. To answer that question, this Article re-examines the historic sources and analyzes the subsequent developments to discern whether Nuremberg established aggression as a universal jurisdiction crime under customary international law.
This Article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’´etat.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing
view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy. This Article, which draws on fieldwork that I conducted in Egypt and Turkey in 2011, challenges that conventional view and its underlying assumptions. The Article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and
facilitate free and fair elections.
Following a democratic coup, the military temporarily governs the nation as part of an interim government until democratic elections take place. Throughout the democratic transition process, the military behaves as a self-interested actor and entrenches, or attempts to entrench, its policy preferences into the new constitution drafted during the transition. Constitutional entrenchment may occur in three ways: procedural, substantive, and institutional. The Article uses three comparative case studies to illustrate the democratic coup phenomenon and the constitutional entrenchment thesis: (1) the 1960 military coup in Turkey, (2) the
1974 military coup in Portugal, and (3) the 2011 military coup in Egypt.
One of the fundamental international law questions over the past two decades has been the structure of the United Nations Security Council. In a world of variable multipolarity, whereby changing crises demand different combinations of actors with relevant resources and shared interests, the Council’s reform should be based not on expanded permanent membership—as mistakenly held by conventional wisdom—but on inclusive contextual participation in decisionmaking. The Council’s five permanent members continue to have collective resources relative to the rest of the world that are not significantly different than at the founding of the United Nations, but are nonetheless insufficient due to the shifting crises. Thus, the Council needs to ensure flexibility of response and, depending on the context, engage with specific regional and local actors. In contrast, increased permanent representativeness (except for limited expansion to include India and Japan) would have little, if any, benefit in enabling the Council to better fulfill its responsibility across all crises and would merely risk increased deadlock. Moreover, the key issue for the international community is clarifying what common purpose the Council should serve. There is both a consensus within the international community that the Council’s responsibility under Article 24 of the U.N. Charter should continue to be the maintenance of international peace and security, and a persistent lack of clarity as to the meaning of this obligation in specific crises. Due to the decentralized nature of the international community, without a single Sovereign, this uncertainty cannot be resolved by a purely political decision. Under international law, interpretation of the Council’s purpose based on legal analysis of the text, context, and practice of Article 24 can be supplemented by recourse to norms of legitimacy emerging within the international community. If further agreement is reached on the Council’s purpose—a process that gives primacy to persuasion and can be improved through certain reforms—the U.N. Charter already provides sufficient legal mechanisms to enable the Council to meet the contemporary expectations of the international community.