Category Archives: Law: International Law

International Law and the Gaza Blockdade

Kevin Jon Heller has an interesting post trying to work out whether Israel's blockade of Gaza is legal.

One key question is whether the dispute between Israel and Hamas is of an international character.

If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza. (Which is not to say that the manner in which Israel is blockading Gaza is legal. That’s a different question.) The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war. Article 97 of the San Remo Manual does likewise. And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).

If it is not IAC — e.g. because Hamas/Gaza is not a state — then it turns out that the relevant international law seems pretty darn sparse.

The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states. Does the San Remo Manual justify it? The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts. …

There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC

And there's a third option:

There is, however, another possibility: that Israel's blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,” defined by the Dictionary of International Law as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.”  I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor.  Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.

Prof. Heller suggests, very tentatively, that none of these three options justifies Israel's blockade. A commentator cites a US civil war precedent, but I am not clear how it would apply given that Israel does not claim the Gaza strip as domestic territory.

Personally, the second option seems like the most plausible argument for the Israeli government: even if the precedents for blockades in non-international armed conflicts are sparse, it does seem consistent with the evolving law regarding state responses to non-state belligerents. (That's a positive, not normative, claim, folks.) But I am anything other than well-informed in this area.

Posted in Law: International Law | 11 Comments

Lessons from the Identity Trail Published Today

ID-trail-med.pngLessons from the Identity Trail (Ian Kerr, Valerie Steeves & Carole Lucock, eds.), a whale of a book, is being published today.

During the past decade, rapid developments in information and communications technology have transformed key social, commercial, and political realities. Within that same time period, working at something less than Internet speed, much of the academic and policy debate arising from these new and emerging technologies has been fragmented. There have been few examples of interdisciplinary dialogue about the importance and impact of anonymity and privacy in a networked society. Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society fills that gap, and examines key questions about anonymity, privacy, and identity in an environment that increasingly automates the collection of personal information and relies upon surveillance to promote private and public sector goals.

This book has been informed by the results of a multi-million dollar research project that has brought together a distinguished array of philosophers, ethicists, feminists, cognitive scientists, lawyers, cryptographers, engineers, policy analysts, government policy makers, and privacy experts. Working collaboratively over a four-year period and participating in an iterative process designed to maximize the potential for interdisciplinary discussion and feedback through a series of workshops and peer review, the authors have integrated crucial public policy themes with the most recent research outcomes.

The book is available for download under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Canada License by chapter. Hard copies are available for purchase at Amazon & at Oxford University Press.

I've got two chapters in it, Identity Cards and Identity Romanticism and Anonymity and the Law in the United States. And I'm very pleased to be in such wonderful company — it was a valuable conference full of interesting people and the materials collected here are going to be of interest to people in many of the cross-cutting fields around the world. And the chapters are (painfully) short.

The full Table of Contents, with links to the online versions of the chapters is below. Some chapters won't be released for a few weeks, so keep an eye on the main site for updates.

Continue reading

Posted in ID Cards, Law: Constitutional Law, Law: International Law, Writings | 14 Comments

Council of Europe Sips at the Censorship Kool-Aid

Milton Mueller — a reliable source — writes, Council of Europe Works to Criminalize Political Expression:

The Council of Europe is pushing to extend the Cybercrime Convention to impose criminal sanctions on what it considers to be unacceptable forms of political or religious expression. The Cybercrime Convention was originally negotiated to respond to transnational problems such as theft of data, breaking into computers, computer-based financial fraud and the like. But now the Council is engaged in bulk unsolicited emails to promote the idea that web site content that is insulting or xenophobic is a cybercrime of the same order.

The bulk emails were sent to promote an April 1st meeting in Strasbourg, where the Council will promote its “Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.” Note the less than honest language: what the Council is targeting are not harmful “acts” of racism or xeonophobia, but the distribution of “written material, ideas or theories” which “insult publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.”

There's lots more.

The COE has autonomous ideas, and this might be one of them, but it is also a place that the USA uses as a policy laundry. The way it works is that when our government wants something they can't get from Congress, they go to the COE (or WIPO, or whatever), get it adopted in Europe, then go to Congress and say we our allies want us to conform to their standard….

Posted in Law: Free Speech, Law: International Law | 1 Comment

A Whale of a Quote

Roger Alford shares with us his list of the “Quotable Quotes from the Fordham Law Review Symposium on International Law and The Constitution: Terms of Engagement.”

There are several good ones, but this one from Yale Law Dean Harold Koh stands out:

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

Posted in Law: International Law, Torture | 3 Comments

Is the Palestinian Authority Sovereign Enough for Immunity?

Interesting post at Opinio Juris asking Does the Palestinian Authority Enjoy Sovereign Immunity? which points to Biton v. Palestinian Interim Self-Government Authority where the District Court had to address that very issue.

At what point is a governing authority of a territory sufficiently recognized as a state for it to enjoy immunity? If the Palestinian Authority is not a state why not? And if it is not a state what is it? The more comical (but nonetheless interesting) variation to this question is if the Palestinian Authority is not a state, is it an instrumentality of the state of Israel?

I'm not sure I'd say “comical” was the exact word, but these are interesting questions.

The court, incidentally, said the answer to the question, at this moment anyway, is “no sovereign immunity.” Which means in some cases the PA can be sued in US courts….

Posted in Law: International Law | 2 Comments

Our Fallen State

U.S. Declines to Join Accord on Secret Detentions:

Representatives from 57 countries on Tuesday signed a long-negotiated treaty prohibiting governments from holding people in secret detention. The United States declined to endorse the document, saying its text did not meet U.S. expectations.

State Department spokesman Sean McCormack declined to comment, except to say that the United States helped draft the treaty but that the final wording “did not meet our expectations.”

The Associated Press reported that McCormack declined to comment on whether the U.S. stance was influenced by the Bush administration's policy of sending terrorism suspects to CIA-run prisons overseas, which President Bush acknowledged in September.

The convention defines forced disappearance as the arrest, detention or kidnapping of a person by state agents or affiliates and subsequent denials about the detention or location of the individual.

Posted in Law: International Law | 2 Comments

OLC Head Blogs at ‘Opinio Juris’

Kevin Jon Heller writes,

John Bellinger, the head of the Office of the Legal Adviser at the State Department, will be guest-blogging at Opinio Juris the week of January 15th (Monday to Friday). To the best of our knowledge, this will be the first time that anyone at the State Department — particularly someone in such a critical position — will have blogged in their official capacity.

Should be interesting! The OJ crowd have also invited some academic guests to participate in the conversation.

Posted in Law: International Law | 2 Comments