Transnational Law Blog

I Want a Certificate in Space Law, Too!

As I am coming out of finals, graduating from law school, and staring the Bar exam dead in the eye, I am fascinated by this article on Res Communis about the first law student to graduate with a specialty in space law. It should come as no surprise that I'm planning a career in transnational law but I take my hat off to anyone that is planning a career in space law-- that is just too international and out-of-this-world cool! I'll admit it, I'm jealous!

The University of Mississippi Law School is the only ABA-accredited law school in the nation with a program specializing in space law. This spring law student Michael Dodge will be the first law student in the history of U.S. jurisprudence to graduate with this unique distinction. Requirements to earn the certificate include courses on U.S. space and aviation law, international space and aviation law, and remote sensing; as well as participation in the publication of the Journal of Space Law and independent research.

Law Dean Samuel M. Davis said, "We are particularly proud to be offering these space law certificates for the first time, since ours is the only program of its kind in the U.S. and only one of two in North America."

According to the article, Dodge said his interest in space law stems from a fascination with space exploration that began when he was a young child, so when he started law school, his interest in space was based mostly on science and history.

"Once I came to the law school, I read that there was an attorney here that specialized in space law," he said. "After that, I became curious as to why space needed regulation, and how legal regimes could be constructed to govern such an expanse. After meeting Professor (Joanne) Gabrynowicz, my curiosity only grew, and ever since, I have been dedicated to researching legal issues associated with humankind’s utilization of space."

While most major law schools are just recently overhauling their programs to focus on transnational law (or what they call "international" law), Ole Miss is taking the lead on what I'm sure will prove to be a very important field of law in the very near future.

Yo Ho Ho and a Bottle of Rum

An article at IntLawGrrls entitled, The Jolly Roger Still Flies, reminds us that piracy is still a very lucrative business-- I don't mean piracy in the intellectual property sense of the word-- I mean REAL pirates! Here is a piece of the article:

...[T]oday’s pirates seem to have gone largely unmentioned in the mainstream press, despite their having taken some 3200 sailors hostage over the last 10 years, which they’ve ransomed for millions of dollars (paid by the shipowners). In fact, total worldwide losses due to commercial vessel piracy are estimated at USD 13-16 billion per year. Just a little over a week ago, for example, Somalian farmers cum pirates took control of a French luxury liner, the Ponant, in the Gulf of Aden. The passengers had been dropped off and the ship was taken after it pulled out of port, as are many ships in this Gulf, where they’d apparently have to be racing along at 200 nautical miles/hour to escape capture. The 22-member crew was hostaged for a reported $2 million, but the French military operation managed to net 6 of 13 pirates and some of the booty. The legal questions now are: where will these 6 pirates be tried and how should such cases be handled in the future? International maritime law does not provide a complete answer: a state seizing a ship from pirates is authorized to prosecute the pirates (indeed, the law of nations upon which the ATCA was built required states to prosecute alleged pirates and put them to death if convicted)...

Click here for the entire post, which gives an overview of some law pertaining to pirates.

UPDATE (4/15/08): Apparently, pirates are a popular topic of discussion currently. The FP Passport blog has an integrated satellite map that shows reported incidents of pirate attacks and hijackings off the coast of Somalia between January and November of 2007 as well as incidents in 2005 and 2006. See it here.

Transnational Commercial Disputes In The USA Ain't Easy

A post on China Law Blog entitled, Who Needs International/Foreign Law? Not Us, We're Americans, raises a number of transnational law issues and is well worth a read. Dan Harris, the author of the post, questions whether or not US courts have an obligation to abide by international treaties and whether they abide by that obligation, and he uses the Hague Convention Rules on International Service of Process as an example. I encourage you to read the entire article but here is a portion of it:

For at least the third time (two times is coincidence, three times is a trend), a US court has allowed a case to go forward against a defendant despite plaintiff's having clearly failed to abide by the Hague Convention Rules on international service of process. The most recent instance is in a still pending case so I cannot go into the specifics on that one.

Virtually every time we have sought to get the US courts to enforce the Hague Convention or even, in one instance, when we sought to get a US court to pretty much ignore the Hague Convention, the US court has seemed perfectly willing to rule as though the United States has no obligation to abide by a treaty it signed. I have a strong sense US Courts (both state courts and federal courts) will not enforce the Hague Convention's technical service requirements (including that the summons and complaint must usually be translated into the language of the country in which it is being served). Oh, and getting a US court to throw out or stay (delay) a case so that an already pending case in another country can be decided first -- forget it. My conclusion is that US courts are happy to ignore foreign/international law in favor of handling things under US law, whether US law should apply or not.

US court judgments usually are not enforceable outside the United States and one of the reasons given for this is the failure of American courts to recognize foreign law. My foreign clients (these are international businesspeople, not in any way anti-American) are complaining to me more and more about US courts and how "they think they can ignore the rest of the world." One particularly piqued client (from a country very friendly to the United States) pointedly told me this is one of the reasons why America is becoming more and more hated and why we are losing our power. He insisted that the courts in his country would have ruled differently on the same issue and I think he is correct.

If the United States is serious about globalization, it is time our courts start recognizing that ours is not the only law in the world and that it actually behooves US business to make our courts more international in the context of business disputes.

The comments that follow the post also address some interesting transnational law issues. One in particular, a comment posted by a person named Twofish, addresses the constitutional issue of whether the Hague Convention is a self-executing treaty or a non-self-executing treaty. A self-executing treaty becomes federal law (and therefore preempts state law) as soon as it is signed. A non-self-executing treaty requires Congress to pass additional laws implementing the terms of the treaty once it has been signed, which means the terms of the treaty are not federal law until Congress has made them federal law.

Whether or not a treaty is self-executing is a very important question when determining whether state law preempts the terms of a treaty. A good example of a self-executing treaty is the CISG. As we mentioned in a previous post, it is considered a self-executing treaty because of the specificity of its language; because of its apparent purpose to create rules that would bind individuals; and because of the apparent views of the political branches that no further action is necessary. As a self-executing treaty, the CISG preempts inconsistent state law under the Supremacy Clause.

Dan Harris of China Law Blog also touches upon the enforceability of foreign judgments in the USA. The enforceability of foreign judgments is determined by state law because the USA is not a party to any treaty. Although the USA has not adopted it, many states have adopted the Uniform Money Judgment Enforcement Act. This Act requires the enforcement of foreign money judgments but allows for a number of exceptions, including lack of notice; lack of subject matter or personal jurisdiction; the foreign court procedures are not compatible with due process; enforcement would violate public policy; or there is a conflict with another final judgment. Many other countries, particularly civil law countries, also require reciprocity.

I am curious as to why Dan Harris does not talk about international arbitration? He has had some very interesting posts about arbitration in the past (see here for example), but he does not discuss it as an alternative in this context. Arbitral awards are enforceable under the New York Convention while the enforceability of court judgments (at least when the US is involved) turns only on local law. His post is discussing these matters in the context of China, which is a party to the New York Convention. China also has its own arbitration body, the China International Economic and Trade Arbitration Commission (CIETAC), which was established to settle international commercial disputes. I would be very interested to know what Dan Harris thinks of CIETAC and arbitration in general as an alternative to a judicial forum.

And the matter is also open to other bloggers and blog readers: Arbitrate or litigate in a traditional judicial forum? Do you tell your clients to put in an arbitration clause? Is it truly easier to enforce an award from arbitration than a court judgment? This inquiring mind wants to know!

Legal Justifications for Securing Pakistan's Nuclear Weapons

Over at Opinio Juris, Prof. Julian Ku links an article in the UK’s Herald that noted that US Special Forces were on standby to enter Pakistan and secure the nuclear warheads should civil unrest threaten the Musharraf regime. Ku calls this plan a “sensible precaution” but opines that it would be “almost certainly illegal under international law.”

My final exam in Public International Law a few weeks ago posited exactly this scenario: a takeover in Pakistan by fundamentalist elements including Al Qaeda and Taliban. My task, as Deputy Legal Advisor at the Department of State, was to write a memo outlining the legal basis for entering to secure the weapons as well as a possible full-blown invasion if necessary.

The rationale I gave was that such an action was justified under our right to self-defense from an imminent armed attack, as established under customary international law (e.g., the Caroline Doctrine) and under Article 51 of the UN Charter. Under the Caroline Doctrine as articulated by Secretary Webster in 1842, US policy has been that anticipatory self defense may take place in cases where the necessity of defense is instant, overwhelming, leaves no choice of means or time for deliberation. I think there is a strong argument that this scenario presents such a case.

There are two characteristics of this hypothetical scenario that lead to its legality that are not present in other cases (such as, say, Iran, North Korea or Syria). One is the confirmed presence of nuclear weapons and advanced rocketry. The second is that we are currently in a state of unprovoked belligerency with Al Qaeda and the Taliban, and we can reasonably expect that any fundamentalist takeover in Pakistan would involve significant elements of these groups. I think there is a reasonable argument that if this takeover occurred, there would be a high likelihood of an imminent nuclear attack (if the US didn’t immediately secure the weapons, I doubt Al Qaeda would wait around until there was a Security Council resolution or we established our resolve... they would launch as soon as it was technically feasible).

This is different from the Bush preemption doctrine, which is aimed at preventing states which may one day both secure WMD’s and become belligerent with us. Like many, I find that approach to be of dubious legality. However, here we would be dealing with a regime that has already attacked, and with certain nuclear capabilities.

Of course, international law is by no means an exact science. Determining whether something is legal or not is really just a process of making arguments and letting political processes and public opinion be the judge. However, my feeling is that when reasonable people such as Prof. Ku see an armed action as a “sensible precaution” there is a good argument to be made that it is also a legal precaution.

A Response to Omrie Golley

Although the underlying premise of blogs is that someone out there will eventually read the posts, the sheer enormity of the internet provides a sense of anonymity that promotes throwaway gestures and irreverent commentary.  As recent events have demonstrated this anonymity is an illusion.

In a recent post I looked briefly at the situation of Omrie Golley, the former spokesman for the Revolutionary United Front ("RUF").  Golley had been imprisoned by the Kabbah government for 22 months without any semblance of due process for allegedly plotting to assassinate the President or Vice President.  Golley was only recently released from prison after the new Koroma government declared that there was insufficient evidence to proceed to trial.  I focused on Golley's case as a symbol of the failed legal system that characterized the post-conflict Kabbah government.  I concluded that the price of a legitimate legal system is the prohibition of arbitrary and indefinite detentions, even where the detainee is a "bad dude."

Apparently, my choice of words was not appreciated.  A couple of days after the post, I received an e-mail comment purportedly from Omrie Golley himself, the entirety of which can be read below.  Mr. Golley took objection to my post, accused me of being "unprincipled and biased" and implied that my motivation for working in Sierra Leone is the "fat salaries" that are received by lawyers at the Special Court.

I would like to use this space to respond to a number of issues raised explicitly by Mr. Golley before addressing a more substantive issue that his role in the Sierra Leone conflict raises.  Before this, however, I want to comment briefly on the nature of blog posts.

Compared to published articles and papers, blogs are relatively informal.  I am using this blog to provide periodic updates on my research and to offer brief commentaries on issues in Sierra Leone.  Due to the restrictions on the format and limited attention span of internet users, blogs are not the ideal medium for comprehensive analysis.  I generally try to infuse my posts with humor and boil down the commentary to quickly digestible bites.  My research will eventually be published in a far more comprehensive form and I have purposefully omitted from the blog information that would be more suitable for academic and policy papers.  However, in responding to Mr. Golley I will have to engage in a more extensive discussion.

In Mr. Golley's criticism he states that there is a lot to learn from his detention and that "[I] could best possibly serve [the rule of law] in Freetown by simply focusing on [his] case."  On this point I partially agree with Mr. Golley, and that is why the original post focused on how he had been a victim of a corrupt and illegitimate legal system.  His case is a primary example of the failings of a legal system and the difficult process of legal reform.  However, with all due respect  to the noteworthiness of Mr. Golley , rule of law issues in Sierra Leone go far beyond his case.  This is why my research will be examining variety of subjects including the capacity building efforts of the Special Court, the Ministry's of Justice's Legal Reform Plan, customary law practitioners, the Sierra Leone Bar Association and NGOs involved in providing legal services.

BAD CHARACTER

In his comment Mr. Golley stated, "That he could spend so much time writing about what a bad character I am without any substantiation in law and fact, serves to show how unprincipled and biased [Mr. Dermody] is."  Mr. Golley misses the point.  As a former spokesman Mr. Golley should know that character is not something determined in a court of law.  While substantiation in law would be sufficient to establish bad character, it is not necessary to establish bad character.  Without getting into philosophical semantics as to the true nature of character, I would submit that a person's character is established by their actions and how they are perceived in their community.

ACTIONS

For many people, representing the RUF would be enough to establish bad character.  During the Sierra Leone conflict the U.N. Security Council imposed an international travel ban on Mr. Golley and twenty-five other RUF figures for involvement in smuggling "blood diamonds" from Sierra Leone to Liberia.  Mr. Golley denied these allegations, which he said were brought by the British Government.

Mr. Golley asserts that he was only interested in "belling the cat" by acting as a peace facilitator.  Mr. Golley first became involved with the RUF during the 1996 Abidjan peace negotiations after he saw that the RUF "did not have horns and tails but where fighting against corruption and mismanagement."  The Abidjan peace agreement was a failure and fighting continued to rage in Sierra Leone. 

Several analyses of the conflict conclude that the RUF lacked a cohesive political ideology.  It was not until Mr. Golley became involved that a quasi-political agenda was espoused or created.  In a 1999 interview with Voice of America Mr. Golley said it was his job to articulate the RUF's political agenda.  However, he declined to provide details about how an RUF government would address Sierra Leone's political and economic problems.  Mr. Golley described the RUF's political agenda as Marxist, but involving free market economics and free trade.  According to the University of Pennsylvania and Conciliation Resources, Mr. Golley  was a leading figure in the RUF who exerted significant influence.  Mr. Golley was involved in the 1999 Lome peace negotiations, but like previous accords, it failed to end the conflict which continued until 2002.

Mr. Golley challenged me "to prove [that he] was anything but genuinely committed to the peace process in Sierra Leone."  This raises two issues.  First, Mr. Golley was involved with the RUF for over five years during which he participated in two failed peace negotiations.  It is difficult to conclude that Mr. Golley was only interested in taming the RUF when he spent so long with the group espousing their "political agenda" and justifying their actions.  Moreover, it is difficult to understand the political aspects of the attacks that occurred while Mr. Golley was spokesman, even if, as Mr. Golley advocated, you put the amputations, rapes, killing and abductions "in context." Second, whether or not he was committed to the peace process has little to do with the subjective determination of character.  It is possible to acknowledge the important role that figures like Gerry Adams and Ian Paisley played in the Northern Ireland peace process without concluding that they are good dudes.  Similarly, Mr. Golley could have been completely committed to the peace process and still be considered a "bad dude."

REPUTATION

As for Mr. Golley's reputation in the community, he stated that he "[sees] and [hears] the vast majority of Sierra Leoneans to this day thanking [him] for the role that [he] played."  Perhaps the majority that Mr. Golley refers to is the classic silent majority.

While Mr. Golley's release from prison was widely covered in Sierra Leonean media outlets, the articles focused on the failings of the legal system rather than the meritorious character of Mr. Golley.  A number of media outlets decried his release in very strong terms.  The Sierra Leone Herald proclaimed that Golley's release was "subverting the rule of law in Sierra Leone" and that Golley should face the Special Court.  In an earlier article, Abdulai Bayraytay, a former senior official for the Campaign for Good Governance, said that "history will however not forgive the likes of Omrie Golley...who defied all informed reasoning in aiding and abetting the rebels and their junta collaborators in wreaking havoc on innocent and unsuspecting Sierra Leoneans all because they wanted to covet political power at all costs through 'unconstitutional means.'"

I have conducted a number of interviews for my research and had numerous discussions with Sierra Leoneans during which the subject of Mr. Golley came up.  If Mr. Golley was offended by being called a bad dude, then he would have been aghast by the significantly more poignant language the people I interviewed used to describe him.  Several people thought that he should remain in jail and no one had kind things to say about his involvement in the conflict.

Finally, I find it rather curious that the spokesman for one of the most derided and demonized groups of the last decade would consider being labeled a "bad dude" such an egregious insult.  Perhaps I failed to realize the power of my California vernacular.  I guess Mr. Golley's extensive experience as a spokesman has made him more aware of what constitutes character assassination.  With all due respect to Mr. Golley, it would not be unprincipled or biased to conclude from his actions and from his perception in the community that people could consider him a "bad dude." 

Oh and while my research into legal development is funded by the Fulbright grant, I receive no "fat salary" for working for the Special Court.  I work weekends and evenings  to make sure that I meet the responsibilities of both of these full-time positions.

THE BIGGER PICTURE

Mr. Golley's comments implicitly raise a more important and substantive issue.  Conflict resolution necessarily involves bad dues.  Unless a strategy of single-side maximization is adopted, negotiations and other multi-party efforts will involve people whose goals and identities conflict.  As Donna Pankhurst observes, "During conflicts it is common for both, or all, parties to conceive of themselves as fighting for justice."  Being committed to a cause does not necessarily correlate to being committed to conflict resolution processes.   

There is a distinction between conflict management and transitional justice.  Conflict management is much more concerned with a negative peace, i.e. the absence of continued conflict.  In conflict management processes there is a greater need to involve all actors in the conflict, even if those actors are objectionable to the populace or anathema to social healing.  The challenge in conflict management is to have wide enough representation so that agreements (ceasefires, peace accords, etc.) are effective.  These processes necessarily involve parties to the conflict who may be unsavory.

The goals for transitional justice are more forward looking and strive to establish a positive peace.  For situations that have progressed beyond conflict management the goals and priorities for societies are more strictly defined.  It is not enough to secure an absence of conflict, societal norms and positive community associations need to be reestablished.  Actors who played a significant role in conflict management may have not have a similarly prominent role in transitional justice.  Or to put it in different terms, the actors with the most agency in conflict management may become the object of transitional justice in the forms of trials and administrative sanctions.    

Fortunately, Sierra Leone has moved well beyond conflict management.  The challenge facing Sierra Leone is no longer just preventing conflict but creating structures and governance that will provide a beneficial future for the people of Sierra Leone.

Happy New Year everyone.

Recommended Reading From Patrick S. O'Donnell: Bibliographies of Comparative Law, Human Rights Law, and International Law

Patrick S. O'Donnell has been making contributions to this blog in the form of comments since our inception. We greatly appreciate his contributions to not only our blog but the blogging community in general. If you're a regular peruser of blogs, then you've undoubtedly come upon a comment by Mr. O'Donnell. The Medical Humanities Blog had this to say about Mr. O'Donnell:

Patrick has led a fascinating life, to say the least.  After earning a M.A. in religious studies, he worked in construction, and then for over a decade as a finish carpenter.  One of his former instructors at University of California Santa Barbara, Nandini Iyer, wife of the late Raghavan Iyer, and mother of the travel writer, novelist, and Time essayist, Pico Iyer, asked him to fill in for her while she went on sabbatical.

Soon enough, Santa Barbara City College realized what it had on its hands, and asked Patrick to hang up his toolbelt and teach classes in Comparative World Religions and Critical Thinking.  He has also taught courses in Political Thinking and in Animal Ethics.  He names as mentors two scholars whose work I am well acquainted with, in Dennis Patterson and Oliver Leaman.  His current interests include ethics, political philosophy, philosophy of law, and he is also cultivating interests in philosophy of mind, and, of course, medical humanities.

Like Jeff Lipshaw, I've had the pleasure of "meeting" Patrick in the comments of various blogs I haunt, and a more knowledgeable, insightful, well-read, and decorous interlocutor I have yet to find.

In a post about Mr. O'Donnell on the Legal Profession Blog, he asked the author of the post to add this little bit about himself:

That I'm a vegetarian that looks like anything but; that I've never flown in a plane (although I did fly in a helicopter with the USFS to fight a fire in an otherwise remote area of Ojai); that I don't own a cellphone, a microwave oven or have any credit or debit cards; that I've never owned (and probably never will own) a car less than 20 years old (were it not for the heat, in other words, I'd be perfectly at home in Cuba); that I don't own a suit; that I absolutely abhor (get quite claustrophobic in) crowds (which means I'm confined to watching the Dodgers on television [but if Vin Scully is announcing it's about as close to heaven as I can imagine]); that I won't live anywhere in which the necessities of life are not within bicycling distance; etc., etc.

Mr. O'Donnell is certainly an interesting person, and he has been kind enough to forward us copies of his recently updated bibliographies of Comparative Law, Human Rights Law, and International Law. You can download the bibliographies (Word docs) by clicking on the links above. The bibliographies make excellent resources for anyone researching these fields, and we thank you Mr. O'Donnell for sharing these with us.

Today, The Arctic Sea - Tomorrow, The Moon

The race to "discover " the Arctic and make claims of sovereignty is an unexpected and interesting consequence of global warming.  The resultant legal precedents could lay the foundation for parsing out future claims of sovereignty on the Moon.  How to determine who will own the Moon is a question many space lawyers are contemplating as the new space race gets underway.  These issues concerning the Arctic and the Moon are addressed in a recent article in Wired magazine entitled, Today, Countries Battle for a Piece of the Arctic. Tomorrow? The Moon.

The article describes what is being called the Cold Rush, which is a rush to claim the billions of barrels of oil thought to be under the Arctic that have only become reachable since global warming has melted hundreds of thousands of miles of Arctic ice.  Canada, Denmark, Norway, Russia, and the United States all have borders along the Arctic, and they have all been doing some saber rattling in regards to their claims of the Arctic black gold. For instance, in August, Russia was busily working to take possession of the Arctic Sea by planting a titanium Russian flag on the seabed underneath the Arctic Sea (see here), and Canada responded by shifting military forces into the Canadian Arctic (see here).

Julian Ku at the Opinio Juris blog argued that the issue of who has sovereignty over the Arctic Sea and its black gold should be resolved by reference to the Continental Shelf Commission and the International Seabed Authority pursuant to the UN Convention on the Law of the Sea Treaty (UNCLOS), which gives countries the right to claim the continental shelf extending from their territory under the sea (see here). Russia and Canada are both parties to UNCLOS and the United States is not. According to Ku, this means that the US could not invoke UNCLOS to challenge Russian claims of sovereignty in the Arctic but Canada could.

In the Wired article, Joanne Gabrynowicz, an international space law expert and a contributing member of the Res Communis blog, is quoted as saying, "The seabed, high seas, Antarctica, and space are, as a matter of law, global commons. What happens in one can be argued to be legal precedent in the others."

She is undoubtedly correct in her conclusion, and since China, Japan, Russia, and the United States are all vying for a piece of the Moon in the near future, it is imperative that we pay attention to how the Arctic problem is resolved. The Wired article concludes with this somber thought:

It's been several hundred years since a virgin patch of Earth was successfully claimed by anyone. Now that we may be facing valuable unsullied territory again, it would be wise to come up with a better system. Do we really want to see a repeat of the Americas, colonial Africa, or the Middle East? "As I tell my students, when humans have a conflict there are only two options: to reach agreement or to fight," Gabrynowicz says. "Even agreeing to disagree or doing nothing simply puts these options further into the future; it does not create additional options. At the level of nations, these options are law or war."

One thing is for sure, international law is on the precipice of a major evolution. The major differences between the Arctic situation and the Moon can be seen in the type of treaties that have been signed. UNCLOS provides some form of dispute resolution, and even if the US is not a party to UNCLOS, it might still be considered customary international law (CIL). However, when we look to the Moon, the only treaty we have to really consider is the Outer Space Treaty (OST), which is devoid of any dispute resolution clauses-- it merely states that the moon is community property and not the exclusive property of any particular nation, and any benefits derived from outer space or the moon are to be reaped by all nations.

New precedents are also being set by litigation resulting from the war on terror, which are altering how the Courts interpret treaties and CIL. We might see a clever attorney asserting an argument from the Hamdan case in regards to CIL, arguing whether the US is even bound by UNCLOS. Moreover, unlike the Arctic Sea, the only nation to have ever planted a flag on the moon (yet) is the US. In theory, it can be argued that all nations share a border with the moon but the opposite argument that no nations share a border with the moon can be just as easily asserted. We also have to consider the effect of the new US space policy, which declares sovereignty over the entirety of outer space and celestial bodies.

Least to say, it will be fascinating to see what kind of arguments and precedents result from the Arctic Sea disputes and how those will be applied to the Moon. Although both fall under the doctrine of res communis, there are differences between the high seas and outer space, including the vast geopolitical consequences of dominance in space as compared to dominance on the high seas. The value of oil cannot be compared to the value of military dominance, and this is another reason that precedents being set during the war on terror will have an influence on how the US-- if not the entire world-- approaches the issue(s) of who owns the moon. Countries should be more proactive about how these issues should be resolved prior to making claims on the moon. Hopefully, as people in the know, we can be the catalyst encouraging new treaties and creating forums for dispute resolution.    

The Situation in Burma -- Update

UN envoy Ibrahim Gambari has returned from Burma (also referred to as Myanmar), and has briefed UN Secretary General Ban Ki-moon on the results of his diplomatic mission. Gambari's visit was prompted after the UN Security Council failed to pass a resolution calling for an end to the human rights abuses in Burma--a failure due, chiefly, to the vetos of Russia and China. No details of Gambari's visit have yet been made public, though Gambari is scheduled to brief the UN Security Council tomorrow.

Over the course of his visit, Gambari was able to meet both with opposition leader Aung San Suu Kyi as well as top officials from the ruling military junta in Burma, and there has been some speculation that Gambari couriered messages between the two. Suu Kyi has been under some form of imprisonment in Burma for much of the past two decades. She was first placed in detention in 1988, when the National League for Democracy won the Burmese general election and the military junta subsequently nullified the election results.

Since Burma's military crackdown on protestors began last week, both the US and the EU have sought to impose economic and diplomatic sanctions against Burma and its military elite. On the other hand, India, who sells arms to Burma, and who has just signed a deep-sea oil exploration deal with the country, has kept its words measured. China, who is the country seen as having the largest influence on Burma (China is Burma's chief trading partner, and also has significant interests in Burma's oil and natural gas reserves), has also been careful to stay out of the limelight. However, given the reaction of the global community over the past weeks, there are rumours that China's position on the matter is quietly changing. According to an unnamed US official, the message from the US has been "You wanted to become a big power -- part of being a big power is you will be held responsible for your client states." Stay tuned.

Russia's Foreign Policy -- Returning to a 'Cold War' Mentality?

In recent months, Russian President Vladimir Putin has displayed an increasingly chilly attitude toward what he sees as the West's adherence to an outdated 'world order.' In July, Putin suspended Russia's participation in the Conventional Armed Forces in Europe Treaty (providing limits on what arms the US, Canada, and Russia may station on the European subcontinent), a move widely seen as a reaction to a plan by the US and Europe to install new anti-missile interceptor sites in Poland and the Czech Republic--both former members of the Warsaw Pact. This was, perhaps, a scaled-back response, given Putin's threat in June to re-target nuclear missiles toward Europe, though Putin has since unveiled an anti-missile defense plan of his own, and reinstituted Cold War era long-range bomber patrols.

Putin has also reinforced Russian ties with rising non-Western powers. Iranian President Mahmoud Ahmadinejad was the guest speaker at the meeting of the Shanghai Co-operative Organization (SCO) last week; its member nations--China, Russia, Kazakhstan, Uzbekistan, Tajikistan and Kyrgyzstan span an increasing valuable reserve of oil and mineral resources, and the organization is perceived to be gaining political clout. Russia's gas and oil reserves have been key to its recent ascendancy--Russia's GDP has increased three-fold since 2002, with 70% of its income stemming from sales of gas and oil.

Perhaps in an effort to consolidate its position as a strategic supplier of the world's natural resources, Russia planted a titanium replica of its national flag in the seabed of the North Pole earlier this month, claiming ownership to up to half of the North Pole seabed area. The issue of who can actually claim 'legal' title to the North Pole seabed is governed by the United Nations Convention on the Law of the Sea, under which Russia would have to prove that the portion of the arctic seabed it claims--the Lomonosov Ridge--is actually an extension of Russia's landmass. Not coincidentally, scientists have begun speculating that there may be significant oil and mineral deposits underneath the North Pole, making the right to access to its seabed (and thus, those resources) potentially very lucrative. The move by Russia, however, drew criticism from other nations with potential stakes in the North Pole, and prompted countering moves by Canada, the US, and Denmark.

What's next for Russia remains to be seen. While Putin's term as President will end in 2008, his successor will likely also likely come out of the highly secretive and oligarchic FSB.

Libya, Lockerbie, and the Hazy Line Between Law and Politics

Several news sources are reporting that the five Bulgarian nurses and Palestinian Doctor convicted of infecting hundreds of Libyan children with HIV have had their death sentences commuted to life in prison by Libya's highest court. The case, which has been moving through Libya's court and appeals system for more than eight years, has become the focus of intense international scrutiny, as many countries and international health organizations have questioned the strength of the evidence against the convicted medical workers.

The ruling today was hailed as a step in the right direction by Bulgaria, the EU, and the US, but there has been no final decision on whether the medical workers will be allowed to return to Bulgaria. The commutation of the sentences came as the families of the infected children agreed to a final settlement of the payment of $1 million US dollars for each child infected.

Something that has received somewhat less attention, however, is the apparent link between the trial of the six medical workers and the trial and conviction of Abdelbaset Ali Mohmed Al Megrahi, a former Libyan intelligence officer, in the bombing of Pan Am flight 103 in 1988. The Los Angeles Times reported in 2001 on a speech given by Libyan leader Moammar Kadafi suggesting that the CIA or Israeli intelligence service was behind the "experiment on the[] children" and promised the medical workers would face "an international trial, like the Lockerbie trial." And, according the Bulgaria's foreign minister, from 2001 to 2005 Kadafi repeatedly offered to exchange the six medical workers for Al Megrahi. In a somewhat surprising twist of events, last month the Scottish Criminal Cases Review Commission agreed to allow a reopening of the case against Al Megrahi, citing new evidence that has come to light since his conviction.

Conceding that there may be the makings of a conspiracy theory entwined in the facts just stated, both cases (the Lockerbie trial and that of the Bulgarian/Palestinian medical workers) serve as examples of just how intensely political cases against foreign nationals can become. The fairness of the trial and validity of the evidence against the accused have been strongly questioned in both cases. For these accused, it seems the line between the law and politics may be incredibly difficult to ascertain.