Volume 36, Issue 2

Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms

Written by Maximo Langer & Joseph W. Doherty

When Slobodan Milošević passed away on March 11, 2006—more than four years after the trial against him began in the International Criminal Tribunal for the Former Yugoslavia (ICTY)—many complained about the length of the proceedings at the ICTY. This criticism of the ICTY’s proceedings was nothing new; it began only a few years after the creation of the Tribunal, and increased over time. ICTY judges tried to address this criticism by introducing reforms to the Tribunal’s procedures. These reforms defined a new role for the judge as an expediting manager of cases who can act by his own motion, while the parties remain primarily in charge of running their pretrial investigations and trials. In the terminology of U.S. civil procedure literature, these reforms can be characterized as encouraging managerial judging.

Until now, aside from impressionistic evidence, there has been no clear indication as to whether the reforms succeeded in shortening the duration of pretrial and trial. Based on a statistical study of the work of the Tribunal—supplemented by nineteen interviews with ICTY judges, prosecutors, defense attorneys, and staff, and three presentations of our study’s preliminary results at the ICTY—this Article shows that the procedural reforms that aimed to shorten proceedings had the opposite effect: they lengthened both the pretrial and trial phases.

The reforms made proceedings longer rather than shorter because they added new procedural steps, requirements, and work without delivering promised results, such as a lower numbers of incidents under discussion at trial, fewer live witnesses testifying at trial, or fewer interlocutory appeals entertained by the appeals chamber. The reforms did not deliver these promised results because ICTY judges either did not use their managerial powers or used them deficiently, enabling the parties to neutralize the implementation of the reforms.

This study has implications for managerial judging that go beyond the ICTY context. The results of our study on the ICTY are not surprising given that the obstacles that managerial judging reforms have to surmount to expedite the process are larger and more structural than has been recognized so far. This is because any time gains reforms provide have to offset the extra time that the reform requirements take to implement and execute. Obtaining these time gains is difficult given that, in a managerial judging system of procedure, the managerial court is likely to have less information about the case than the parties. This limited information may lead the court to refrain from using its managerial powers in order to avoid making inefficient, or unfair decisions. The court’s limited information also facilitates parties’ attempts to neutralize the court’s managerial powers.

This Article thus argues that the managerial court walks a tightrope. On one side, the court risks being inefficiently superfluous; in those cases in which the parties would agree with the court about how much time they need for pretrial and trial, the court’s intervention adds steps, requirements, and work, without bringing any time gains. On the other side, in those cases in which the court’s intervention may be necessary because the parties want more time than is socially optimal, the court may not have sufficient information about the case to make the right decisions, while the parties will have an incentive—and may have the ability—to neutralize the managerial powers of the court by relying on their superior information about the case.

We thus claim that reformers should be cautious about the promise of managerial judging to expedite proceedings without compromising the other goals of the legal process, such as accuracy and fairness. Powerful critiques of managerial judging thus far have been based on its potential negative effects on judges’ impartiality, as well as on the negative externalities it imposes on society by compromising the transparency and accountability of the administration of justice and the role that adjudication plays in advancing public policy. But we instead argue that even if managerial judges succeed in remaining unbiased toward the parties, and even disregarding the potential negative externalities for society at large, there are structural challenges in the very idea of managerial judging taken on its own terms.

This Article is organized as follows. In Part II, we describe the eleven managerial judging reforms that ICTY judges introduced between July 1997 and August 2003. The assumption by ICTY judges was that each of these reforms would contribute to expediting ICTY procedure. Thus, in Part III, using multivariate survival analysis, we test the hypothesis that the higher the number of reforms a case was subjected to, the shorter the pretrial and trial phase of that case should be. Our four models for pretrial and trial control for, among other variables, case characteristics, court capacity, litigation levels, judges’ characteristics, and whether the defendant pled guilty. In all pretrial and trial models, the number of reforms is significantly correlated with longer pretrial and trial.

Part IV of the Article tests the relationships between ICTY managerial judging reforms on the one hand and the number of incidents under discussion at trial, the number of live witnesses testifying at trial, and the number and ratio of interlocutory appeals entertained by the appeals chamber on the other. The results of these regressions reveal that the managerial judging reforms did not deliver any of their promised outcomes. Part IV also presents results from interviews to show that our quantitative findings are corroborated by qualitative data. Several of our interviewees indicated that ICTY judges either did not use their managerial powers or used them deficiently, and that the parties managed to neutralize the implementation of the reforms.

In Part V, the Article discusses reasons why ICTY judges made limited and deficient use of their managerial powers, and why parties had incentives to neutralize the reforms. Part V also articulates the structural challenges that managerial judging faces to expedite proceedings. In Part VI, we show that these overlooked explanations may help account not only for our results, but also for the results of the two major empirical studies on managerial judging reforms introduced in U.S. civil procedure—Maurice Rosenberg’s study of pretrial conferences in New Jersey and RAND’s study of the Civil Justice Reform Act of 1990.

Fundamental Norms, International Law, and the Extraterritorial Constitution

Written by Jules Lobel

In a wide variety of contexts, aliens have challenged U.S. government actions undertaken outside our territorial limits. Iraqi and Afghan citizens allegedly tortured while detained by the U.S. military in Iraq and Afghanistan have sought damages for violations of their constitutional rights; aliens subjected to extraordinary rendition—the transfer of detainees by U.S. officials to countries where they are detained and tortured—have asserted various constitutional claims; and foreign nationals detained by the U.S. military at Bagram Airfield Military Base in Afghanistan have filed petitions for habeas corpus.

The Supreme Court’s 2008 decision in Boumediene v. Bush decisively rejected the Bush administration’s categorical argument that constitutional rights do not apply to governmental actions taken against aliens beyond our borders and instead adopted a functional approach to the extraterritorial application of the Constitution. The Court concluded that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Whether a constitutional provision has extraterritorial effect must be determined on a case-by-case basis, depending on the “‘particular circumstances, the practical necessities, and the possible alternatives which Congress had before it,’ and, in particular, whether judicial enforcement of the provision would be ‘impracticable and anomalous.'” Applying that functional test to detainees held at Guantanamo, the Court found habeas review necessary because (1) the procedural protections afforded the detainees were inadequate; (2) “in every practical sense Guantanamo is not abroad;” and (3) there were few, if any, practical barriers to federal courts’ exercise of habeas jurisdiction.

While the Boumediene decision has been viewed by some as broadly reflecting the Court’s march toward a global or more cosmopolitan Constitution, its import and application remain unclear. In subsequent cases, the government has argued that Boumediene was premised on Guantanamo’s unique status as de facto sovereign territory that in every practical sense is “not abroad,” and therefore cannot be applied to other prisoners detained by the United States in Afghanistan, Iraq, or CIA sites around the globe. The government also has successfully asserted in several D.C. Circuit cases after Boumediene that the Court’s decision only applies to habeas petitions and leaves unaffected the circuit’s prior law that Fifth Amendment rights do not apply to aliens anywhere abroad, even those detained at Guantanamo. While it is unlikely that the government’s attempt to cabin Boumediene so narrowly will succeed, the Court’s functional balancing test has been criticized as vague, malleable, and policy oriented. Most recently, the D.C. Circuit applied Boumediene‘s functional test to deny prisoners held at Bagram Airfield Military Base in Afghanistan a right to seek habeas relief, leading to editorial criticism that the court had permitted what the Supreme Court had refused to countenance at Guantanamo—”a legal black hole” or “law-free zone” —and had affirmed an “extravagant claim of executive power.”

This Article argues that Boumediene‘s functional test, which focuses the inquiry of whether the Suspension Clause applies to an executive detention abroad primarily on practical concerns, is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. The Court’s functional test is disconnected from its ringing pronouncements that the writ of habeas corpus is a “fundamental” bulwark in protecting liberty, “a right of first importance,” and “an indispensable mechanism for monitoring the separation of powers.” While the Court claimed that the writ’s indispensable separation of powers function was central to its analysis of the extraterritorial application of the Suspension Clause, nowhere does the test the Court articulates acknowledge the importance of separation of powers principles. So too, while the Court continuously emphasized the detainees’ interest in avoiding lengthy, prolonged, and indefinite confinement without adequate due process protections, that fundamental interest makes no appearance in the Court’s functional test. Justice Kennedy’s opinion in Boumediene thus resembles his decision in Lawrence v. Texas in that both are strongly premised on a fundamental norms jurisprudence that is untethered from the specific test used to decide the case.

This Article seeks to reintegrate the fundamental norms strands of the Boumediene opinion into its functional test, and thus normatively ground the opinion. It does so by arguing that the functional test should be informed by international law, a consideration that the Boumediene decision omitted from its analysis despite briefing by the petitioners and amici arguing that international law supported the application of habeas. While several commentators have supported applying international law’sjurisdictional principles to address the practical concerns underlying the functional test, this Article argues that utilizing international law’s substantive, fundamental, nonderogable norms to help determine the Constitution’s extraterritorial application would both allay the Court’s practical concerns and ground the Court’s test on the important normative principles that underlie its Boumediene opinion.

The argument made here is premised on international law’s post-World War II recognition that certain basic norms of civilized society, such as the prohibitions on torture, genocide, slavery, extrajudicial execution, and prolonged arbitrary detention without any judicial review are so fundamental as to be nonderogable under any circumstances. That certain norms are so central to individual dignity and civilized society that, unlike ordinary proscriptions, they can never be disregarded by any government at any time, finds expression in several contemporary international law concepts and terms. For example, the International Court of Justice has referred to “fundamental” or “peremptory” norms of international law, and the Vienna Convention on the Law of Treaties provides that governments have no power to enter into treaties that conflict with a peremptory—or jus cogens—norm, which it defines as “a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted.”

The use of such “fundamental,” “peremptory,” “jus cogens” norms to inform the applicability of the Constitution’s provisions to U.S. officials’ conduct abroad would address the tension between perceived U.S. foreign policy needs and the recognition that there are certain fundamental principles that the government should never violate wherever it acts. Such a normative approach follows from the Court’s decisions in the Insular Cases as well as Justices Harlan’s and Frankfurter’s opinions inReid v. Covert, and is consistent with the line of cases, including Johnson v. Eisentrager, that Justice Kennedy relied on in Boumediene. Moreover, the use of international law in this manner to determine not the content of constitutional rights but rather their territorial applicability avoids the primary objections raised to the use of international law to help determine the Constitution’s meaning domestically. Finally, the determination by the international community, including the United States, that certain conduct is never justified by practical concerns, and the prohibition of such conduct in every nation in the world, should meet the concerns for flexibility and practicality at the root of the “impractical and anomalous” functional test.

Part II of the Article demonstrates how Justice Kennedy’s functional test sought to negotiate a compromise between an all-or-nothing view of the Constitution’s extraterritorial application to aliens abroad. It argues, however, that Kennedy’s compromise formulation is in considerable tension with the fundamental norms jurisprudence underlying the opinion, and is ultimately based on an unprincipled and erroneous separation of the domestic arena from the international order. Part III traces the development of Kennedy’s impractical and anomalous test from the cases he relied upon, illustrating that those cases emphasize not merely practicalities, but the fundamental norms of civilized society in determining when constitutional norms apply abroad. Those decisions are, at minimum, consistent with using international law to inform that determination. Part IV argues that judicial use of fundamental, nonderogable norms of international law to inform the Constitution’s extraterritorial application is consistent with principles of modern international law, the intent and practice of the Framers, and modern judicial precedent. Part V explores the use of international law by other legal systems—Canada, the United Kingdom, and the European Court of Human Rights—to determine the reach of constitutional or human rights.

Finally, Part VI applies the theoretical framework set forth in Part IV to two important cases currently before the courts. The first case is the recent decision of the Court of Appeals for the D.C. Circuit denying prisoners detained for many years at the U.S. Bagram military base in Afghanistan a right to seek writs of habeas corpus. The district court decision, the oral argument in the court of appeals, and the ultimate appellate decision were, in significant part, devoted to an analysis of the extent and nature of U.S. control over the base and its location within a war zone. Yet the question of whether the United States can indefinitely detain those who claim to be innocent civilians—perhaps for the rest of their lives—without meaningful due process or any judicial review, should not turn on the particular characteristics or location of the secure military facility at which the government chooses to detain them. The D.C. Circuit’s analysis of the functional test factors did not consider the length of detention, although the prolonged detention of the Guantanamo prisoners without adequate process was clearly an important concern motivating the Supreme Court in Boumediene. Under the analysis suggested here, the court should have strongly considered whether the prohibition of prolonged executive detention without judicial process is a fundamental norm of international law in determining whether the writ of habeas corpus was available to the Bagram detainees.

Secondly, the D.C. Circuit has shown no inclination post-Boumediene to revisit its holding that an alien abroad is not afforded constitutional protection from torture by United States officials, and the Supreme Court has refused to grant certiorari in recent cases raising that question. Since the prohibition against torture is clearly a fundamental, nonderogable norm of international law, the analysis presented here should lead courts to conclude that the constitutional proscription against torture applies to United States governmental actions abroad.

A Trade Secret Approach to Protecting Traditional Knowledge

Written by Deepa Varadarajan

Many indigenous and local communities object to the way their communally developed agricultural strains, folklore, and traditional medicines—their “traditional knowledge”—serve as free building blocks for the patents and copyrights of outsiders, often without any recognition, compensation, or control over the way this information is used. Traditional knowledge provides certain multibillion dollar industries, including pharmaceuticals, cosmetics, and agriculture, with useful leads for product discovery and development. Intellectual property law readily recognizes these industries’ “innovations.” But it often turns a blind eye to the incremental and seemingly unscientific contributions of traditional knowledge holders, who are some of the world’s poorest people.

Consider the following hypothetical: for generations, members of an indigenous group in Madagascar have consumed the leaf of a local plant for various medicinal purposes, including the relief of indigestion. A Western researcher working on behalf of a pharmaceutical company visits the area to gather information about the uses of local plants. He stays for several months, trying to establish a relationship with members of the group, particularly those identified as healers or medicine men. Initially, they are wary of sharing their knowledge, but the researcher persuades them of his trustworthiness. He is allowed to observe the preparation of traditional medicines utilizing the leaf of this plant. The researcher returns home to the company, taking samples and the information he has learned. Company scientists subsequently isolate the active chemical responsible for the plant’s therapeutic effects, obtain U.S. and European patents, and mass-produce a profitable drug that has fewer side-effects than the plant consumed in raw form. The group receives no notice, attribution, or compensation.

In response to the seeming inequity of this scenario and others, indigenous and local communities, their advocates, and developing country governments have, for over a decade, pressed for traditional knowledge protection in the form of internationally recognized intellectual property rights. But while the issue of traditional knowledge protection has elicited public sympathy, meaningful international agreement has been difficult to achieve for a number of reasons.

First, the term “traditional knowledge” lacks a clear definition and encompasses a diverse body of information. Broadly, it refers to the “agricultural, environmental, medicinal knowledge” of indigenous and local communities, developed communally over generations. Examples include knowledge of herbal remedies, plant-breeding techniques, and the suitability of animal pelts for human clothing. Some commentators also use the term traditional knowledge to include “traditional cultural expressions” (TCEs), such as folklore, songs, and dances. In this Article, I use the term “traditional knowledge” to refer primarily to agricultural, environmental, and medicinal knowledge.

Second, indigenous and local communities differ in their relationships with dominant cultures and their degrees of interest in commercializing or profiting from traditional knowledge. Some regard Western conceptions of property and the commodification of traditional knowledge with suspicion (echoed in much of the scholarly literature), while others are eager to embrace new forms of economic opportunity and recognition.

Third, the communal and intergenerational characteristics of traditional knowledge pose theoretical and practical challenges for modern intellectual property regimes. At a theoretical level, creating new sui generis rights or adapting existing laws to accommodate this subject matter does not mesh easily with the prevailing justification for intellectual property rights: to provide inventors and authors with ex ante incentives to create. Traditional knowledge has, after all, been created for centuries without the carrot of an intellectual property right. And given the unprecedented expansion of intellectual property rights over the last three decades, even progressive intellectual property scholars are skeptical of any further erosion of the public domain. At a practical level, the challenges for those seeking traditional knowledge rights are also daunting. For example, how does one identify the proper owners of rights in traditional knowledge when the original creators are long deceased or when multiple neighboring communities have similar healing practices or agricultural knowledge?

Despite these challenges, traditional knowledge advocates have articulated compelling reasons for increased protection. By and large, advocates have worked outside of the economic incentives discourse that dominates contemporary intellectual property theory. Viewing the conventional intellectual property discourse as too narrow or too hostile to their concerns, they have relied instead on the language of human rights, indigenous rights, and biodiversity preservation. They have argued that enabling traditional knowledge holders to control the uses and collect on the value of their contributions may be critical to their economic and cultural survival, and it encourages their maintenance of biodiversity that benefits the entire world.

These preservation and human rights objectives are enshrined in a number of international environmental and human rights instruments. But these treaties are largely advisory in practice and lack the enforcement muscle of international intellectual property agreements, notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is linked to the World Trade Organization’s dispute resolution system. Consequently, traditional knowledge advocates seek recognition and rights within the TRIPS framework—even as they resist framing their arguments in the language of IP.

This resistance has consequences, as it encourages scholars, commentators, and developed country governments to dismiss traditional knowledge protection as a well-meaning fringe issue better addressed outside the international IP framework. Deep differences between the purposes of traditional knowledge protection and the existing IP framework also raise concerns about the suitability of IP rights for traditional knowledge. Can such a regime be workable and enforceable at the international level and still respond to the concerns of traditional knowledge holders? To date, much of the scholarly literature suggests that traditional knowledge protection is largely incompatible with existing intellectual property doctrines and underlying justifications.

In this Article, I argue that the doctrinal and normative divide between traditional knowledge protection and intellectual property law has been overemphasized, and that trade secret law can help narrow it. First, in terms of doctrinal fit, trade secret doctrine offers a viable model for protecting a subset of traditional knowledge that is not already publicly available. Broadly speaking, trade secret law imposes liability for the wrongful acquisition, use, or disclosure of valuable information that is the subject of reasonable secrecy efforts. While various scholars have acknowledged trade secret law’s potential for traditional knowledge holders, its possibilities have yet to be examined in sufficient depth.

Notably, trade secret law operates without patent law’s stringent requirements of novelty, nonobviousness, and identifiable inventors, its temporal constraints, and the expense of a patent application. And unlike other categories of intellectual property, trade secret law may accommodate the conflicting privacy and commercialization concerns of traditional knowledge holders. That trade secret law applies only to relatively secret, as opposed to publicly available, information may frustrate some traditional knowledge holders—particularly those whose knowledge is already publicly available. But a limiting principle of relative secrecy prevents traditional knowledge protection from becoming an unbounded cause of action for any behavior by outsiders that traditional knowledge holders deem objectionable. By contrast, a broader misappropriation approach, which is currently under discussion at the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC), may pose such potential for overreach.

Second, in addition to its practical import, the underlying justifications of trade secret law offer a useful normative guide for theorizing traditional knowledge protection and linking it to the broader purposes of intellectual property law. Trade secret law emerged from a complicated stew of rationales, and scholars have struggled to understand how it advances the stated goals of intellectual property law. As Mark Lemley has recently observed, however, trade secret law serves the broader “disclosure” purposes of intellectual property law. By regulating information sharing in certain minimally fair ways, trade secret law can promote trust and efficient collaboration between parties that would otherwise be too distrustful of one another to disclose information.

This is a valuable insight for the traditional knowledge debate. Like trade secret law more generally, the protection of traditional knowledge can serve the broader purposes of intellectual property law by lessening holders’ distrust in negotiating with outsiders and encouraging the disclosure of valuable secret information to more productive users (for example, to the drug company that can create a medicine with fewer side effects and distribute it to wider audiences). Anecdotal evidence suggests that absent traditional knowledge protection, indigenous and local groups are becoming warier of sharing information with outsiders who are in a position to improve and commercialize it. In fact, they may go (and some have gone) to greater lengths to prevent the flow of any information to outsiders—in one example, by banning the entry of all outside researchers into their community.

Thus, while the concerns illuminating the traditional knowledge debate may be diverse, encompassing human and indigenous rights, cultural diversity, and biodiversity preservation, traditional knowledge protection can nonetheless further an important purpose of existing IP laws: to encourage disclosure and information sharing on fair terms. In making this comparison to trade secret law, I critique the oversimplified justification for modern intellectual property law as providing incentives to create. Intellectual property law can and should encourage parties of unequal economic power to collaborate and share information on fair terms.

The Article unfolds in four parts. Part II sets the stage by defining traditional knowledge and describing the cultural and political shifts that led to its emergence as a subject of international controversy. Part III considers the three predominant approaches commentators and scholars have taken to understand and rationalize traditional knowledge protection—what I loosely term the preservation approach, the human rights approach, and the conventional IP approach. Parts IV and V revisit the conventional IP approach and expand upon it by examining trade secret doctrine in depth. Part IV assesses the merits and limitations of trade secret law for the protection of traditional knowledge. And Part V considers how the “disclosure” justification of trade secret law—and intellectual property law more broadly—can inform a more compelling IP theory for traditional knowledge protection. Part VI concludes.

Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4)

Written by Matthew C. Waxman

Suppose that the United States, in opposing Iran’s suspected development of nuclear weapons, decides that the best way to halt or slow Iran’s program is to undermine the Iranian banking system, calculating that the ensuing financial pressure would dissuade or prevent Iran from continuing on its current course. And further suppose that the United States draws up the following four options, all of which are believed likely to produce roughly the same impact on Iran’s financial system and have similar effects on Iran’s economy and population:

(1) Military air strikes against key Iranian banking facilities to destroy some of the financial system’s physical infrastructure;

(2) A regulatory cut-off of Iranian banks from the U.S. financial system, making it difficult for Iran to conduct dollarized transactions;

(3) Covert flooding of the Iranian economy with counterfeit currency and other financial instruments;

(4) Scrambling Iranian banking data by infiltrating and corrupting its financial sector’s computer networks.

Which of these options constitute uses of force, subject to the U.N. Charter’s prohibitions and self-defense provisions?

I pose this set of hypothetical options for several reasons. First, it is an exercise in legal line drawing. The development and deployment of new technologies—both their offensive potential and the vulnerabilities they create for states reliant on those technologies—raise questions about permissible versus impermissible modes of interstate conduct and conflict. Military attacks are generally illegal, with exceptions for self-defense or when authorized by the U.N. Security Council. Most economic and diplomatic measures, even if they exact tremendous costs on target states (including significant loss of life), are generally not barred by the U.N. Charter, though some of them may be barred by other legal principles. Where along the spectrum of permissible to impermissible conduct do various types of cyber-attacks lie?

Definitions of cyber-attacks vary, and the range of hostile activities that can be carried out over information networks is immense, ranging from malicious hacking and defacement of websites to large-scale destruction of the military or civilian infrastructures that rely on those networks. By “cyber-attacks” I mean efforts to alter, disrupt, or destroy computer systems or networks or the information or programs on them, which is still a broad category. That breadth—encompassing activities that range in target (military versus civilian, public versus private), consequences (minor versus major, direct versus indirect), and duration (temporary versus long-term)—is part of what makes international legal interpretation or regulation in this area so difficult.

Global interconnectedness brought about through linked digital information networks brings immense benefits, but it also places a new set of offensive weapons in the hands of states and nonstate actors, including terrorist groups. Military defense networks can be remotely disabled or damaged. Private sector networks can be infiltrated, disrupted, or destroyed. “Denial of service” attacks—flooding an Internet site, server, or router with data requests to overwhelm its capacity to function—can be used to take down major information networks. This method of attack was demonstrated in Estonia (one of the most “wired” nations in the world) during a period of diplomatic tensions with Russia in 2007, when such attacks disrupted government and commercial functions for weeks, including banking, media, and communications. More recently, it has been widely reported that a computer code dubbed Stuxnet, perhaps created and deployed by the United States or Israel, infected and significantly impaired Iran’s uranium enrichment program by disrupting parts of its control system.

The London-based International Institute for Strategic Studies recently highlighted “the growing consensus” that future conflicts may feature “the use of cyber-warfare to disable a country’s infrastructure, meddle with the integrity of another country’s internal military data, try to confuse its financial transactions or to accomplish any number of other possibly crippling aims.” A U.N.-convened panel of governmental experts recently echoed that conclusion, noting that “existing and potential threats in the sphere of information security are among the most serious challenges of the twenty-first century. . . . Their effects carry significant risk for public safety, the security of nations and the stability of the globally linked international community as a whole.” In short, electronic and informational interconnectivity creates tremendous vulnerabilities, and some experts speculate that the United States may be especially at risk because of its high economic and military dependency on networked information technology.

Computer information system capabilities and vulnerabilities raise international legal questions of tremendous public policy import. What are the permissible uses of offensive cyber-capabilities? To what extent is existing international law adequate to regulate these capabilities today and in the future? And what international legal authority do states have to respond, including with military force, to cyber-attacks or cyber-threats by states or nonstate actors? Note that I am concerned here with jus ad bellum issues—including whether cyber-attacks constitute an act of aggression or would justify resort to armed force in response—but not jus in bello issues, that is, how the laws of war would govern the use of cyber-attacks during an ongoing armed conflict.

Besides illustrating some new interpretive challenges with regard to the U.N. Charter, another reason I pose the opening hypothetical is to illustrate that legal line drawing with respect to cyber-attacks will produce winners and losers, and to illuminate the implications of those disparate effects for international legal development. States have different capabilities and different vulnerabilities to those capabilities. Not all states, for example, have the financial and trade muscle to coerce other states economically, and states have varying strength to withstand economic pressure. The same is true of cyber-attack and defense capabilities, so legal rules that affect the costs of using cyber-attacks have disparate strategic consequences. Legal line drawing with respect to the use of force and modes of conflict has distributive effects on power, and is therefore likely to be shaped by power relations. For major actors like the United States, aligning legal interpretation with strategic interests is exceptionally difficult because the future effects of information technology on power and conflict remain so uncertain.

To better understand contemporary relationships between international law regulating force and cutting-edge technologies, this Article looks backward in time to international legal disputes and scholarly debates of the Cold War. A central theme is that these fundamental issues are not entirely new or unique to cyber-technology, even if they have new dimensions that make them harder to solve or navigate. Modes and technologies of conflict change, and the law adjusts with varying degrees of success to deal with them. Throughout the U.N. Charter regime’s sixty-plus years of development, the means by which states and international actors wage conflict has changed so dramatically that every so often major international legal figures debate whether the Charter’s most basic tenets are “dead.” Cyber-warfare capabilities and vulnerabilities will strain the Charter and its basic prohibition on force once again, and the lessons of history can help us understand how.

This Article makes two overarching arguments. First, strategy is a major driver of legal evolution. Most scholarship and commentary on cyber-attacks capture only one dimension of this point, focusing on how international law might be interpreted or amended to take account of new technologies and threats. The focus here, however, is on the dynamic interplay of law and strategy—strategy generates reappraisal and revision of law, while law itself shapes strategy—and the moves and countermoves among actors with varying interests, capabilities, and vulnerabilities. The purpose is not to come down in favor of one legal interpretation or another, and the conclusions are necessarily speculative because no governments speak in much detail about their cyber-warfare capabilities and strategies at this point. There are downside risks and tensions inherent in any plausible approach, though, and this analysis helps in understanding their implications.

Second, it will be difficult to achieve international agreement on legal interpretation and to enforce it with respect to cyber-attacks. The current trajectory of U.S. interpretation is a reasonable effort to overcome the translation problems inherent in a U.N. Charter built for a different era of conflict. However, not only do certain features of cyber-activities make international legal regulation very difficult, but major actors also have divergent strategic interests that will pull their preferred doctrinal interpretations and aspirations in different directions, impeding formation of a stable international consensus. U.S. policymakers should therefore prepare to operate in a highly contested and uncertain legal environment. The prescription is not to abandon interpretive or multilateral legal efforts to regulate cyber-attacks; rather, it is to recognize the likely limits of these efforts and to consider the implications of legal proposals or negotiations in the context of broader security strategy.

The Article proceeds as follows. Part II dissects a long-running debate over the meaning of “force” and “armed attack” in Articles 2(4) and 51 of the U.N. Charter, and examines the challenges of fitting cyber-attacks into existing legal categories. This Part does not offer a doctrinal conclusion about where the lines should ultimately be drawn, though it discusses the most salient merits and problems of alternative interpretations. Instead, this Part uses the hypothetical options laid out above as a way to illustrate the implications of competing interpretations, which echo past interpretive disputes. It also describes the general thrust of U.S. government doctrinal thinking about cyber-warfare and the regulation of force, which emphasizes the effects of cyber-attacks in analyzing whether they cross the U.N. Charter’s legal thresholds.

Part III considers parallels between cyber-warfare and the “low-intensity conflict” or proxy warfare waged by the superpowers and their clients during the Cold War. As in that latter context, the low visibility of states’ moves and countermoves in cyberspace will slow the process of interpretive development. This Part draws on Cold War lessons to argue that Article 2(4) will probably be a weak constraint on offensive cyber-attacks because of, among other reasons, the difficulty of observing them and attributing them to their sources or sponsors. Those weaknesses will also likely plague any attempt to negotiate and enforce new international agreements limiting cyber-warfare.

Part IV draws again on early Charter history to argue that interpretations of Articles 2(4) and 51 have distributive effects on power and therefore have strategic consequences. Rather than urging one interpretation or another, this Part aims to shed light on the strategic logic likely driving U.S. legal thinking, and it urges a more cautious and multidimensional assessment than is usually found in this burgeoning scholarly field. Whether emergent U.S. interpretations of the Charter serve U.S. interests or broader international societal goals of global order depends on the validity of assumptions about an unpredictable future security environment.

Note: The Battle After the War: Gender Discrimination in Property Rights and Post-Conflict Property Restitution

Written by Sharanya Sai Mohan

Many legal systems around the world fail to protect property rights equally for men and women, leaving women dependent upon their husbands or male relatives to provide housing and land on which to subsist. Women’s limited access to property becomes especially damaging in post-conflict situations, when women displaced by war try to return to their homes and often find that they have lost any legal access to their former property.

How a post-conflict country addresses housing, land, and property issues in particular can determine “the extent to which peace is sustained, and the degree to which measures of remedial and restorative justice are enshrined within post-conflict political and legal frameworks.” These issues are especially critical because “housing and land [are] two of the very few assets available to people in post-conflict settings.” Existing international legal protections of housing and property rights are often infringed or disregarded, and the tension that results can spark violence that disturbs the transitional justice process.

Transitional justice, as one author defines it, is “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” If transitional justice is conceived narrowly as a means to achieve retribution for the individual victim, then its power to address a broad range of rights is limited. On the other hand, transitional justice can include a restorative component that includes reparations, and even a redistributive component, one that goes beyond the crime and punishment model to “reconstruct the health, education, housing or other welfare systems” and to address inequality. If a new government wishes to transition its society from conflict to “lasting peace,” incorporating a much broader approach than retribution may be necessary. And since “[a]n estimated 80 percent of all refugees and displaced persons are women and children,” transitional justice must take the specific circumstances that women face into consideration.

This Note argues that property restitution programs in transitional justice settings need to correct barriers to women’s property ownership. In so doing, efforts by government, civil society, and the displaced themselves to achieve transitional justice can also create long-lasting property rights reform that moves a post-conflict society toward both reconstruction and equality. After considering the existing international legal framework as well as several case studies of transitional justice schemes, this Note will argue that actors in transitional justice should take certain steps at the very beginning of the transitional process to ensure that women’s property rights are protected as they return to their lives.

This Note advocates for a stronger and more explicit recognition of the necessity of gender equality in property rights in international law in the field of property restitution. The international framework can and must be improved to make very clear that equal access to property is an international standard, particularly in transitional justice. A strong international framework can guide, as well as be incorporated into, local law reform.

Recognizing that local reform is essential, this Note also suggests steps that domestic governments and other local actors can take to ensure that women receive adequate access to restitution. First, formal national legal systems must be reformed to provide for nondiscriminatory access to property. Second, because property rights in some countries are governed not by formal law but rather by customary law, transitional justice must attempt to reconcile discriminatory customary law with any formal law reform so that both systems provide equal access to property rights for women. Transitional justice should take a multidimensional approach on this issue by combining law reform with redistributive practices such as land distribution programs and with safe and easy access to legal mechanisms for women to enforce these rights. And finally, transitional justice systems should incorporate the voices of displaced women, since, as the case studies will demonstrate, those that do so are more likely to achieve the goal of equitable property restitution. Two ways in which post-conflict countries have successfully included women in the process are (1) launching awareness campaigns to inform women of their rights and the possibilities for change and (2) receiving the input of civil society in the transition. This Note emphasizes the importance of both of these steps in eliminating discrimination in property restitution.

As mentioned above, this Note distinguishes between formal property rights restrictions and informal or customary restrictions. Formal restrictions are those written into the constitution, statutes, or common law of a country or locality. I shall primarily consider formal restrictions on a national level, but of course these restrictions may be amplified through the formal laws of localities within states. Even in countries that provide adequate formal protections for women’s property rights, women often face customary restrictions that trump these formal laws, particularly in localities where access to legal mechanisms and the country’s formal judicial system is limited. An example of a customary restriction is a system of land inheritance that transfers real property from a father to only his male children. While many countries ban this sort of discriminatory inheritance scheme through legislation, these laws are frequently ignored in favor of the traditional male-to-male transfer, leaving little recourse for female children.

It is also important to clarify the meaning of “property rights” in this Note. While the right to housing is crucially important, the focus of this Note is a much broader set of rights that constitute our sense of property ownership. “Property rights” or “land rights,” used interchangeably, mean the rights to buy, sell, transfer, exclude others from, use the resources of, and build housing on a piece of property. Some of the countries discussed in the case studies have nationalized all land and only allow their people the right to use their land, or otherwise limit its alienability. In these cases, I refer to people’s usufruct rights or specify the exact range of rights being discussed.

The Note proceeds as follows. Part II describes the importance of gender equality in property rights, especially in the post-conflict context. Part III outlines the international legal framework for equal property rights for women, including in the restitution context. Part IV analyzes several case studies of post-conflict nations that have had various degrees of success in returning women to their homes and reforming discriminatory property laws. And finally, Part V attempts to present some best practices and lessons learned from the case studies in order to achieve the goals outlined here in Part I.

Comment: The Palestine Problem: The Search for Statehood and the Benefits of International Law

Written by Adam G. Yoffie

Palestine has had a long and checkered past in its efforts to attain statehood. Although international law failed to facilitate Palestinian statehood more than half a century ago, the legal landscape at the international level is changing. Whereas conventional wisdom assumes that international law reduces state sovereignty, this Comment argues that international political organizations and legal institutions can actually increase Palestinian chances of achieving statehood.

By the conclusion of World War II, Palestine had been ruled by Great Britain for nearly three decades. Assuming control from the Ottomans following World War I, the British never established a coherent policy for governing the disputed territory. British rule, however, did not last: on November 29, 1947—with thirty-three votes in favor, thirteen against, ten abstentions, and one absence—the U.N. General Assembly passed Resolution 181 calling for the exit of British forces and the partition of Palestine into “[i]ndependent Arab and Jewish States.” The United Nations, then a nascent organization formed out of the ashes of the Second World War, recognized that “the present situation in Palestine [was] one which [was] likely to impair the general welfare and friendly relations among nations” and that the only sensible solution was “the Plan of Partition.” Based on the recommendations of the U.N. Special Committee on Palestine, Resolution 181 aimed to find a peaceful solution to the problem, but instead led to regional warfare. The Arab League, which included the states neighboring Palestine, refused to accept the United Nations’ creation of a Jewish State. As a result, Palestine failed to attain the statehood it so desperately craved. This failure is indicative of international law’s shortcomings; international law can offer concrete steps toward statehood, but if applied too rapidly or too harshly, can also undermine stability.

Israel’s road to internationally recognized statehood has been somewhat smoother. Battling its neighbors while awaiting the formal withdrawal of British forces, the State of Israel did not formally declare its independence until May 14, 1948. Yet it was not until a year after independence that Israel gained admittance to the United Nations, on May 11, 1949. As fighting continued through the first half of the year, the U.N. Security Council refrained from referring the matter to the General Assembly for a vote. After signing a series of armistice agreements with its neighbors, Israel gained majority support in the Security Council and subsequently in the General Assembly to become an official member of the United Nations. Fast-forward sixty years, and Israel—a state born out of two General Assembly resolutions with a positive recommendation from the Security Council in between—faces the prospect of bearing witness to similar action by the United Nations on behalf of the Palestinians. This time around, the Israeli government has firmly stated its opposition to what Palestinian leaders are referring to as “Plan B.”

“Plan B” represents a multifaceted approach to achieving recognition of a Palestinian State from four major international bodies : the U.N. Security Council, the U.N. General Assembly, the International Court of Justice (ICJ), and the International Criminal Court (ICC). The Palestinian Authority (PA), which declared unilateral statehood more than two decades ago, is thus not restricting its push for recognition to individual nations. Following another round of collapsed peace talks brokered by the United States, Palestinian Foreign Minister Riad Malki publicly declared his intention to seek U.N. recognition of a Palestinian state in September 2011. The U.N. route, however, is not an easy process. To obtain U.N. membership, Malki would first need to gain support from the Security Council, as the General Assembly can only vote on membership based on a positive recommendation from the Security Council. But the foreign minister has made clear that in the face of an expected Security Council veto by the United States, the Palestinians will still push for a vote in the General Assembly, where they are more likely to garner majority support. Such action would not result in membership but function as a purely symbolic measure on the part of the General Assembly.

In addition to focusing on the United Nations, the PA is also likely to appeal to the ICJ and ICC. The emergence of a nascent but rapidly expanding international judicial system over the past three decades has contributed to the perceived legitimacy and actual authority of international courts. In addition to the long tenure of the ICJ and the approaching ten-year anniversary of the ICC, the international legal system now includes a number of specialized tribunals, as well as hybrid and regional courts, charged with meting out justice outside of and across traditional national boundaries. The ICJ and ICC thus offer additional forums for focusing international attention on the issue of Palestinian statehood and influencing Israeli policy in the process—powerful tools that are part of a greater judicial system that was unavailable to the Palestinians in the mid-twentieth century.

The PA’s Plan B, therefore, would invert the standard relationship between international bodies and state sovereignty, as it seeks to use the former to advance the latter. In other words, the PA intends to use international bodies that generally take a state’s sovereignty as an axiom to establish that sovereignty in the first place. Palestine has been an aspiring state for sixty years, and international bodies can and should play a more direct role in helping Palestinians achieve their decades-long goal. This Comment thus aims to move beyond the already wide body of literature addressing prior U.N. and ICJ action on Palestine (and potential future action by the ICC ) by examining the issue in the aggregate through the lens of international organizational multilateralism.

This Comment proceeds in three Parts following this Introduction. Part II offers a normative argument for reconceptualizing international law as a tool for advancing, rather than limiting, sovereignty for aspiring states. International law emanates, at least partially, from international organizations and courts, which restrict the sovereignty of their member states and signatories. States do not completely surrender their sovereignty, since they retain the ultimate right to withdraw, and they directly or indirectly participate in the functioning of these bodies. Yet during the tenure of their membership, they delegate some degree of sovereign powers in the relevant issue areas governed by the organization. This Comment turns the conventional view on its head by applying it to aspiring states seeking to establish their sovereignty in the first place.

Focusing on Palestine, Part III provides an overview of the role the Security Council, the General Assembly, the ICJ, and the ICC have played in the Israeli-Palestinian conflict and outlines a framework for advancing “Plan B.” Section III.A focuses on the more conventional avenue of advancing sovereignty through the United Nations, while Section III.B addresses the more unconventional path of harnessing the power of the ICC and ICJ to promote sovereignty. Part IV concludes.

Recent publications

The Elusive Promise of Indigenous Development: Rights, Culture, Strategy. By Karen Engle.

The Statehood of Palestine: International Law in the Middle East Conflict. By John Quigley.

Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State. By Lara J. Nettelfield.

Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser. By Michael P. Scharf & Paul R. Williams.

The Life of Sir Hersch Lauterpacht, QC, FBA, LLD. By Sir Elihu Lauterpacht.

Torture, Terror, and Trade-offs: Philosophy for the White House. By Jeremy Waldron.

Law and Capitalism: What Corporate Crises Reveal About Legal Systems and Economic Development Around the World. By Curtis Milhaupt & Katharina Pistor.

Networks and States: The Global Politics of Internet Governance. By Milton L. Mueller.