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The Privatization of Intelligence

Published on January 23, 2009        Author: 

Editors note: Over the coming days we will be discussing (see here) Professor Simon Chesterman’s article: “We Can’t Spy . .  . If We Can’t Buy!: The Privatization of Intelligence and the Limits of Outsourcing Inherently Governmental Functions”  (2008) 19 EJIL 1055 (available here).

Simon Chesterman is Global Professor and Director of the New York University School of Law Singapore Programme and Associate Professor of Law at National University of Singapore, Faculty of Law. His publications include:  From Mercenaries to Market: The Rise and Regulation of Private Military Companies (Oxford University Press, 2007) (ed. with Chia Lehnardt), Shared Secrets: Intelligence and Collective Security (Lowy Institute for International Policy, 2006)

This piece builds on two discrete areas of research that I’ve been pursuing for a couple of years and are now beginning to intersect.

The first is the privatization of the military and security sector. Building on the project on Global Administrative Law at New York University School of Law, the work that I’ve done with colleagues like Chia Lehnardt has focused on regulation of private military and security companies (PMCs or PMSCs). One product of that research was the book, From Mercenaries to Market, and a key argument was that we need to take the emerging market for force seriously – rather than pursuing the abolitionist approach that had long dominated discussion of this issue within the United Nations.

The second area is the oversight and accountability of intelligence services. I now teach a course on “Intelligence Law” at the National University of Singapore under the auspices of the NYU School of Law Singapore Programme and have written about the difficulty of using law that must normally be public to regulate government activities that must often be kept secret.

The article partly documents the privatization of intelligence, but also suggests the beginnings of an answer to a question that has long dogged debates over PMCs: what can and what cannot be outsourced?

Though it still lags behind the privatization of military services, the privatization of intelligence expanded dramatically with the growth in intelligence activities after September 11. This has seen an enormous increase in the money spent on intelligence (dominated by large items such as spy satellites) but also in the proportion of personnel working on contract. At the CIA’s station in Islamabad, for example, contractors reportedly outnumber government employees three-to-one. Read the rest of this entry…

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Filed under: EJIL, EJIL: Debate!
 

Online Discussion of Private Military Companies and International Law

Published on January 16, 2009        Author: 

This is a Featured Post. Some more recent posts appear below.

One of the purposes of this blog is to provide a forum for discussion of the scholarship that appears in the European Journal of International Law. From time to time, we will host  online exchanges which respond to, as well as provide informed commentary and exchanges on articles that appear in EJIL. This exchange of ideas sometimes occur in the print version of the Journal but this inevitably means delays in responses or a lack of an opportunity to have the repeated exchanges that would test ideas and flesh out views. We hope that such an interactive, yet informed and enlightening, conversation can take place on,  and, be enhanced by, this more interactive and quicker forum.

We begin this series by hosting an online discussion (see below)  of some of the articles appearing in the latest issue of the European Journal of International Law (see table of contents here). That issue includes a symposium on “Private Military Contractors and International Law”.  Those papers are the product of a symposium held last June at the European University Institute in Florence as part of a joint effort of the EJIL and the EU Framework Programme 7 project “Regulating Privatization of War: The Role of the EU in Assuring Compliance with International Humanitarian Law and Human Rights ” (for more on that project see http://www.priv-war.eu).  We will be continuing the discussion here over the coming days. In order to facilitate this online discussion of the articles, EJIL is providing free access on its website  to most of the articles in the current issue. Read the rest of this entry…

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Editorial: EJIL Vol. 19:5

Published on January 13, 2009        Author: 
Kadi – Europe’s Medellin?; Georgia: Plus ça change, Plus ça reste la même chose. In this Issue: EJIL:Debate! Marking the Anniversary of the UDHR (Contd.); Private Armies – A Symposium; Articles and Review Essays; Outside this Issue: EJIL:Talk!

Kadi

Just like the Supreme Court’s decision in Medellin (see EJIL Editorial to Volume 19:2) some months ago, the ECJ’s decision in Kadi is destined to become a landmark in the annals of international law. Whereas Medellin was generally excoriated as the low water mark of American constitutional and judicial insularity, gruesomely resulting in the actual execution of the principals,1 Kadi was mostly hailed as an example of the more progressive and open attitude of the ECJ, with the proof of the pudding in the eating – overturning the Council Regulations which gave effect to the measures adopted against the defendants pursuant to the Security Council Resolutions, and doing so on the grounds that they violate fundamental human rights and protections applicable within the legal order of the EU. There the gallows – here liberty.2 Happy Ending.

It is so, however, only to those for whom outcomes are more important than process and reasoning. For, at a deeper level, Kadi looks very much like the European cousin of Medellin.

Let us rapidly engage in the following mental exercise: Imagine two identical Kadi-like measures within the European Legal Space – one entirely autonomous (i.e., not a measure implementing a Community measure) originating in a Member State and one originating in, say, the form of a Regulation from the Council of Ministers. Imagine further that they came up for judicial review before a national court. As regards the first, we would expect the national jurisdiction to follow the domestic process, apply the domestic substantive tests for legality and constitutionality, in the course of which they would also be engaging in an inevitable ‘balancing’ of the values of, say, due process, natural justice, etc. against the security interests of the state. Both the factual, legal and, critically, the matrix of values at play would be, appropriately, those prevalent in the Member State (which may of course be influenced by international norms to the extent that those are received by the domestic legal order, directly or indirectly). All this would be ‘normale amministrazione‘. It would not be at all ‘normale amministrazione‘ were the same court, in reviewing the Union measure (questions of preliminary references apart), to pursue the very same process and set of values as it applied to the purely domestic measure as if it made no difference that in one case it was dealing with an entirely domestic situation and in the other with a communitaurized measure implicating the geographical, political, and value system of the entire Union. We would consider that an aberration. Both the factual and the ‘valorial’ matrices would be entirely different – not those of a single Member State but those of the Union as a whole, with a far more complex set of considerations which would have to go into the balancing hopper. In a domestic context, it may be considered a correct balance between individual liberty and the fight against crime that any search and seizure be accompanied by a judge-signed search warrant. In the European context, it may be considered sufficient that when searching commercial premises a warrant signed by the Commission will suffice. If so, we would expect a national judge to understand the different factual and ‘valorial’ contexts and be willing in principle to uphold the European measure even if an identical situation wholly within the state would be struck down.

Read the rest of this entry…

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  1. Even had the American legal system heeded the international imperative and given the convicts a review, this, in all likelihood, would have merely delayed their grisly end. Their guilt in this case was not at issue. []
  2. Here, too, we may be dealing with judicial gesture – the effects of the decision were stayed for three months to enable the Council (of the EU) to “put its house in order and come up with a more solid basis which would actually allow the measure to be kept in place. []
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Top International Lawyers of 2008?

Published on December 31, 2008        Author: 

At this time of the year, it is usual for the media to pubish lists of top this and top that of the year. I wonder whether it is possible to have list of the top international lawyers of 2008. If one were to try to construct such a list one would have come up with criteria for identiying these people. Presumably, one would be looking for those international lawyers who apppear to have been most influential. But how does one measure influence? Is influence not something which may only become apparent many years later? Perhaps one would need to distinguish between those lawyers operating in governments and IOs from international law academics.

The Times (of London) published a list ealier this year (see here) of the UK’s 100 most powerful lawyers. This is said to be “a list of the lawyers who have the most clout in shaping the rules we live by”. According to the Times, this list of 100 top UK lawyers:

is not a list of excellence, popularity or media mentions — although these can be factors. So it’s not just big names or brilliant stars (take comfort, those excluded). Instead, we tried to select the most powerful and influential within the law today — in the judiciary, private practice, in-house, public sector or politics.

How to measure power and influence — who really has clout?  . . .

We had in mind such factors as whether contenders can influence public or political opinion, or the strategy or policy of a big firm, company or government; whether they can shape or apply the law in a way that affects many people; whether they are respected, feared or emulated or contributed to the strength and quality of UK legal services.

Readers may be interested to see how many international lawyers are included in the list. There are some in the list who have made significant contributions to international law cases in the UK but who are perhaps better known for a more general contribution to UK Law. For example, some are judges [eg Lord Bingham, former Senior Law Lord and one of the judges in the Al-Skeini  case (extraterritorial application of the ECHR in Iraq); the Al-Jedda case (interaction between ECHR and UN Security Council resolutions with regard to detentions in Iraq by British forces); the A case (use in British proceedings of evidence obtained by torture). Others are human rights litigators who have also made important contributoions to that area of law (eg Phil Shiner).

There are three names on the list which are more likely to be recognised by non-UK international lawyers: Daniel Bethlehem, the Legal Adviser to the Foreign and Commonwealth Office (and former LSE & Cambridge academic)

Christopher Greenwood, currently Professor of International Law at the LSE, who has just been elected to the International Court of Justice

Dame Rosalyn Higgins, current President of the International Court of Justice (and also a former LSE Professor of International Law).

In my view, the fact that some of the lawyers on the list are international lawyers says something about the perception of international law in the UK (or at least about the perception of the place of international law by the persons who put the list together). One can only speculate whether any international lawyers would have made a similar list put together a couple of decades ago. Does anyone know of any similar lists in other countries? Do they include international lawyers? Perhaps readers would like to put together a list of the most influential public international lawyers of 2008.

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Filed under: EJIL, EJIL: Debate!
 

EJIL:Talk! welcomes Guest Blogger Marko Milanovic!

Published on December 15, 2008        Author: 

We are pleased to welcome on EJIL:Talk! Marko Milanovic who will be a guest blogger over the coming weeks. Marko obtained his first degree in law from the University of Belgrade, Faculty of Law and his LLM from the University of Michigan. Marko is a prolific young international law scholar and has published two articles in the European Journal of International Law on State Responsibility for Genocide (see here and here). He has also published in the Leiden Journal of International Law, the Human Rights Law Review, the International and Comparative Law Quarterly and the International Review of the Red Cross. He is currently working on a PhD thesis at  the University of Cambridge which will be on the extraterritorial application of human rights treaties. Previously, he served as a Law Clerk to Judge Thomas Buerganthal at the International Court of Justice. He is an Associate at the Belgrade Centre for Human Rights where he has been involved in litigation before the European Court of Human Rights and the Constitutional Court of Serbia.

Some of you might have read some of Marko’s posts over on Opinio Juris where he and I have in the past engaged in vigorous discussion on many issues, before meeting in person at an EJIL Symposium held in Florence in 2007.

We look forward to his contribution to the blog.

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Welcome to EJIL:Talk!

Published on December 12, 2008        Author: 

Some readers might wonder why the European Journal of International Law has decided to launch a blog. An explanation of this would help in identifying the goals of the blog and in setting out what we seek to achieve. This explanation can be viewed by clicking on More about EJIL:Talk! (to the right) but I thought it best to put it in a prominent place on the main page.

EJIL already has a homepage www.ejil.org, the autonomous website of the European Journal of International Law. Our website was a pioneer long before publishers such as our current publisher, OUP, moved into digital journal publishing, and it is distinct from all other mainline journals of which we are aware. Not only is a sizeable portion of current content made free to the reader, but all content becomes free one year after publication – the scholarly world’s Napster! I say all this to indicate that we are not parvenus to the notion of digital internet publishing

The decision to experiment with a blog – and an experiment it is – was decidedly not a bandwagon effect – they all have it, so should we. It is the result of serious reflection of the Editorial Board, with our Scientific Advisory Board, on the evolving relationship between traditional and digital forms of scholarship and publishing. In its first twenty years, EJIL from time to time made huge efforts to provide ‘services’ e.g.  the now defunct service on decisions of the ECJ on matters of International Law or our running commentary on decisions of the WTO Appellate Body of importance to public international lawyers. That, for the most part, has become a redundant and futile exercise rendered such by the power of ‘search engines’ and the ubiquity of primary sources on the internet. EJIL also tried to be ‘topical’ by, e.g., trying to hold symposia on recent decisions of the ICJ, or an ILC Report, or certain ‘incidents’ as soon as possible after the event. In the old days a time lag of six to nine months was considered very topical. That has become laughable – our production process, even at its best, is a tortoise to the internet hare.

And yet, there is, we think, an EJIL sensibility – with, say, its panache for the theoretical article, for aggressively bringing in younger scholars, for its intellectually diverse modes of analysis, realism mixed with doctrine, a strong appeal to, and interest in, history, to mention but a few. (To some Europeans, too Americanized; to some Americans, too European – we take comfort in that debate…). If our new blog EJIL:Talk! is successful, it will continue to reflect those EJIL sensibilities on the internet but enable us to effect a certain mutation in the identity of EJIL itself: We will give increasing preference to articles which deal with the fundamentals, with First Things, which look at an ‘Incident’ or ‘decision of a Tribunal’ with a view to exploring wide systemic meaning; in short, to articles which we predict will have lasting value – that will be interesting four or five or more years after publication. EJIL:Talk! and EJIL may thus complement each other. Note – we hope it does not provoke just short off the cuff academic gossipmentary, but short, incisive, even well-researched pieces which should simply be thought of as a different genre of writing, not unlike the difference between an article and a book.

Our plan is to allow the members of our Scientific Advisory Board to host the blog on a rotating basis, with Dapo Akande  serving as our inaugural guest editor.

Please help make EJIL:Talk! a successful blog and, indirectly, EJIL an even more successful Journal.

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Letters to the Editor: Respond to EJIL Editorials (Vol. 19:4)

Published on December 9, 2008        Author: 

Editorial: Marking the Anniversary of the Universal Declaration; The Irish No and the Lisbon Treaty

Marking the Anniversary of the Universal Declaration

The interest of EJIL in, and its commitment to, the study, research and reflection on the place of fundamental human rights in the international legal system is an ontological facet of EJIL‘s identity. This is not surprising given the biography and/or bibliography of its founding editors as well as, of course, that of my long-serving predecessor as Editor-in-Chief, Philip Alston. It is, thus, equally unsurprising that there has hardly been a year in which at least one or two pieces on human rights have not appeared in our pages. This engagement is carried through by the new members of our Editorial Board and Scientific Advisory Board.

Read the rest of this entry…

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