A review of Lincoln’s Code: The Laws of War in American History. By John Fabian Witt. New York, N.Y.: Free Press. 2012. Pp. viii, 248. $32.00.
Immanuel Kant’s 1795 essay, “To Perpetual Peace: A Philosophical Sketch” (Zum ewigen Frieden), established a concept of cosmopolitan law as the nemesis of war, instilling in generations of thinkers and practitioners a vision of a world without conflict. Kant’s paradigm posited that “republican constitutions, a commercial spirit of international trade, and a federation of interdependent republics” would provide the basis for a “perpetual peace” amongst states bound together under international law. Yet cultural relativists since the time of Kant have argued that only certain nations—namely those with a “Europeanized” culture—are capable of coming together to secure this lasting peace.
This Article seeks to challenge such claims and assess the contemporary relevance of Kant’s “perpetual peace” under international law in light of one of the most important geopolitical developments of our time: the rise of China. It is clear today that efforts to secure an enduring world peace without China have limited prospects for success. Amidst this reality, the Article argues that historical and contemporary claims regarding the irreconcilability of the Kantian paradigm with Chinese thought are inaccurate and incomplete. It presents evidence to rebut these cultural relativist arguments by identifying sources of resonance with Kant in classical Chinese political philosophy; highlighting Chinese scholars’ ongoing engagement with Kant’s writings over the past century; and revealing trends in recent Chinese scholarship and foreign policy discourse that support Kantian liberal internationalism.
Finally, the Article demonstrates that modern China is increasingly committed to two pillars of the Kantian project, international institutions and commercial interdependence, but concludes that the rising power must develop a missing third pillar—liberal democracy—if it is to strengthen its normative commitment to international law and participate in a lasting peace amongst states. China’s fate and the future of international law thus appear inextricably tied.
“Targeted killings are not a new practice – governments have long sought to prevail over their enemies by engaging in premeditated killings of individual suspects. What is new now is the rapid development and proliferation, and increasing deployment, of technologies which permit such killings to be carried out with greater ease and with little immediate risk to one side’s citizens, together with concerted efforts by some to offer general legal justifications for current targeted killings practices, and, in some cases, to attempt to redefine existing legal frameworks to expand the circumstances in which such killings may be carried out ‘lawfully.’
“Current targeted killings practices and the attempts to legally justify those strikes present a challenge to the systematic protection of the right to life under international law. We are now witnessing a significant effort by some states to insulate their “targeted” uses of deadly force from international scrutiny and to redefine international law in order to serve narrow and short-term interests. This presents a serious risk of leaving everyone less secure, particularly if other states around the world, as they acquire the new technology, claim for themselves the same expanded rights to target their enemies without meaningful transparency or accountability.
“The challenge is to ensure that strong protections of the right to life under international law survive the practices of a few states, technological developments, and outlier attempts to redefine core legal standards.”
This brief commentary considers the potential effect of a territorial state’s international human rights obligations on the law governing targeted killings. It posits that these obligations should limit permissible attacks by an attacking state when the territorial state is not party to an armed conflict with the relevant non-state actor, particularly when a territorial state consents to the attacking state’s actions. It also argues that a territorial state’s extraterritorial human rights obligations provides support for an attacking state’s right to resort to force in the territorial state when it fails to suppress a resident threat. It concludes by briefly suggesting that recognizing the necessity of effective governance to the preservation of human rights could prompt the development of an international law of ungoverned spaces, perhaps best thought of as “international martial law.”
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.