Archive for Intl Law

China’s Assertion of Sovereign Authority in the Global Commons and the Escalation of Legal Warfare in the Arctic

“China’s Assertion of Sovereign Authority in the Global Commons and the Escalation of Legal Warfare in the Arctic” by Jeff Dwiggins

© Kapok Tree Diplomacy. June 2013. All rights reserved. Jeff Dwiggins.   PREVIEW

“After the Northwest Passage is opened up …  the sea route between Europe, Asia, and North America will be shortened by 5,200 to 7,000 nautical miles. Whoever controls the Arctic sea route will control the world economy and a new internationally strategic corridor.”[1]  Li Zhenfu


Competition among Arctic states is heating up over access to the Arctic’s undiscovered but potentially vast deposits of oil, natural gas and rare earth minerals.[2]  Moreover, the diminishing thickness and range of sea ice that could eventually make the Northern Sea Route significantly more accessible for cheaper and faster transoceanic shipping has also attracted the geopolitical interest of several non-Arctic states, most notably China.[3] The undeveloped resources are located almost exclusively in the legal territorial waters of Arctic states like Russia, Denmark, the United States and Canada.[4] These states have already made credible territorial claims to the United Nations and are prepared to protect their interests militarily if necessary.[5] So how will China assert its rights and interests in the Arctic without getting into a military conflict?

This essay will examine how China will redefine the Clausewitzian battlefield and utilize legal warfare (sometimes called lawfare) as an “offensive weapon” to “seize the political initiative” and shape international public opinion about the Arctic and sovereign territorial claims through non-military means, negotiations, diplomacy and international law to project power and accomplish its core national strategic objectives.[6]   It will examine China’s use of legal warfare as a preferred strategy for addressing critical challenges to China’s assertion of rights and interests in the Arctic, including the competing sovereignty and territorial claims by Arctic states and the risks, costs and uncertainty of harvesting the resources themselves.[7] Read more

The Domestic Proliferation of Drones and their Challenges to American Democratic Values, Civil Liberties, Local Law Enforcement and National Security

“The Domestic Proliferation of Drones and their Challenges to American Democratic Values, Civil Liberties, Local Law Enforcement and National Security” by Kapok Tree Diplomacy


In today’s continuous national security state that blurs the lines between war and peace and civilian and military operations, the question becomes whether America must deliberately violate its values to protect its citizens?  John O. Brennan, Assistant to President Obama for Homeland Security and Counterterrorism, declared that America’s values and national security “reinforce one another” and rejected the “false choice” between the nation’s security and its traditional values.[1] Jay Stanley and Catherine Crump from the ACLU counter that drones threaten U.S. citizens’ fourth amendment protections against unreasonable search and seizure without a warrant and probable cause.[2]  This paper will assess whether the end justifies the means.

This essay will attempt to navigate the ethical tradeoffs between using domestic drones that can look inside private homes with thermal heat sensors and tap into cell phone and text conversations with all the good that drones can do in helping local law enforcement.[3] With the Federal Aviation Administration (FAA) issuing over 300 Certificates of Authorizations (COAs) since 2006 to entities like local law enforcement agencies and the DOD for permission to fly UAVs, the debate over their potential misuse has only just begun.[4]

{Complete essay contains 4,138 words; 14 double-spaced pages; 30 references}

The posts, views and opinions expressed in this paper are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Table of Contents

I.    Background

II.   Unmanned Aerial Vehicles (UAVs) and Drone Capabilities

A.  Military Capabilities and Usage

B.  Domestic Capabilities and Usage

III.  Analysis – Domestic Drones

A.  Pros and Cons of Using Domestic Drones for Law Enforcement

B.  Pros and Cons of Using Domestic Drones for Border Surveillance

C.  American Values: Privacy and Civil Liberties Concerns

D.  International Law Concerns

IV.  Analysis – The Coming Drone Armageddon

V.   Conclusions and Recommendations

Works Cited in Introduction

[1] Brennan, John O. “Remarks of John O. Brennan, “Strengthening our Security by Adhering to our Values and   Laws.” Program on Law and Security, Harvard Law School. (accessed April 29, 2012).

[2] Stanley, Jay and Catherine Crump. Protecting Privacy from Aerial Surveillance: Recommendations for Government use of Drone Aircraft. American Civil Liberties Union, December 2011, 14. (accessed April 29, 2012).

[3] Finn, Peter, “Domestic use of Aerial Drones by Law Enforcement Likely to Prompt Privacy Debate,” The Washington Post, January 23, 2011 (accessed April 29, 2012).

[4] Lynch, Jennifer. “FAA Releases Lists of Drone Certificates—Many Questions Left Unanswered.” Electronic Frontier Foundation. (accessed April 29, 2012).

Is International Law Genuine ‘Law’?

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins. FREE CONTENT

In answering this question, I must first appeal to the American Law Institute’s “Restatement of the Law, Third, Foreign Relations Law of the United States.” In Section 101 it defines international law as follows: “international law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Section 102 of this document refers to the sources as “customary law,” “international agreement,” and “derivation from general principles common to the major legal systems of the world.” Section 103 refers to the evidence of international law being “judgments and opinions of international judicial and arbitral tribunals;” “judgments and opinions of national judicial tribunals;” “the writings of scholars;” and “pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.”

Thus, to answer the question of whether international law is law, one must look at its rules and principles inherent in its definition, its sources, and its evidence to make a determination as to its strength, validity, coherence and legitimacy. I would submit that the whole point of law is to bring about justice as a vehicle for truth and liberty. Does international law result in justice? Do its sources and evidences comport with truth and equality? Read more

The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy

“The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy” by Kapok Tree Diplomacy

PREVIEW      Written in August 2010

Section One – History, Structure and Mandate of the ICC

Background.  The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with “a supreme offense against international morality and the sanctity of treaties,” a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed “individual culpability for crimes against peace” following World War II by indicting several senior officials in a multinational setting (Fletcher 235).  The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4). Read more

Challenges to Keeping the Peace in International Law

(C) Kapok Tree Diplomacy. August 2010. All rights reserved. By Jeff DwigginsInternational-Law flags

Introduction – FREE CONTENT

The need for a “fundamental institutional arrangement not only to address questions of war and peace and human rights but to develop legal norms in other areas, such as labor, health, and communications,” has enticed the vast majority of states to consent at some level to a growing and complex body of rules and norms designed to serve state interests by securing and furthering a peaceful, prosperous and stable society (Dunoff et. al. 16). Today these norms permeate the mission and operations of numerous international institutions like the United Nations, providing peaceful dispute resolution tools in such diverse areas as trade, military operations and human rights.

While most states desire to live in peace with one another and follow the fundamental norms of international law, a few states and some increasingly dangerous non-state actors like Al- Qaeda prefer to do whatever they want. In his Nobel Peace Prize acceptance speech, U.S. President Barack Obama added, “[the] old architecture is buckling under the weight of new threats … wars between nations have increasingly given way to wars within nations. The resurgence of ethnic or sectarian conflicts; the growth of secessionist movements, insurgencies, and failed states; have increasingly trapped civilians in unending chaos” (Obama 51).

This paper will examine what it means to “keep the peace” in an era of the globalization of world politics and unprecedented challenges and threats. The specific challenges to be addressed include nuclear proliferation, military conflict and terrorism, international trade and economic relations, diminishing natural resources, and humanitarian and human dignity issues. The paper will also examine whether existing international institutions and legal doctrines are likely to resolve the issue, and where are they likely to fall short?

The posts, views and opinions expressed in this post are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Section One – Nuclear Proliferation

Nuclear weapons are able to do far more than disable enemy combatants. They can destroy entire cities and obliterate entire human populations with one powerful blast.  The international community has developed two important treaties, The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the Comprehensive Test Ban Treaty (CTBT), to limit proliferation of Weapons of Mass Destruction (WMD), encourage disarmament, and preserve peaceful usage of nuclear energy (Dunoff et. al. 532-533).  Although these treaties have substantial ratifications, their effectiveness is severely limited by holdouts and compliance issues.   Read more

International Law’s Expansion into Individual Affairs: A Tug of War over Tradition, Jurisdiction and Universal Human Rights

Introduction – (C) Kapok Tree Diplomacy, July 2010, All rights reserved. Jeff Dwiggins, author.

FREE CONTENTFort Derussy Park, Honolulu

As international law extends beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, its pervasive encroachment directly collides with domestic law on important issues of supremacy, customary norms, jurisdiction, human rights and sovereign immunity. Courts often struggle to navigate the chasm between the two realms of international and domestic law and produce cogent, universally accepted decisions that fall within uncontested limitations and clear jurisdictions.

This paper will explore the challenges, benefits and trade-offs of a non-traditional application of international law in cases involving individuals where the dynamics of tradition, jurisdiction and human rights interact in overlapping spheres of domestic and international law, producing a compelling tug of war between competing interests.  I’ll begin by examining the issue of international and universal human rights.

The posts, views and opinions expressed on this site are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.

Section One – International Human Rights v. The Interests of States

The Preamble of the United Nations (UN) Charter calls upon member states to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small,” while Articles 55 encourages member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (“Preamble” and “Chapter IX”). A thorough reading of the Charter, however, doesn’t uncover any definition or mandate for human rights which has complicated a universal embrace of uniform standards for human rights. Read more

The Efficacy of the Modern Institution of International Law

“The Efficacy of the Modern Institution of International Law ” by Kapok Tree Diplomacy



International laDoha Roundw has evolved into a growing and complex body of rules and norms that states consent to based upon their concrete interests in a peaceful, prosperous and stable society. While international law differs and often competes substantively from municipal law, international law plays a predominantly positive role in allowing nations to benefit from the binding obligations derived from its sources. This essay will cover a brief history and definition of international law in Section One to include its sources and evidences followed by a comparison of international law with municipal law in Section Two with an emphasis on treaties.  The paper will conclude with some observations on how well the framework of international law actually works.

Section One – A Brief History and Definition of International Law

HistoryThe modern institution of international law has its historical roots in the sixteenth and seventeenth centuries with the evolution of the nation state in Europe.  Werner Levi notes, “The feudalistic entities with their relatively uncertain borders gave way to states based upon sharply defined territory” (qtd. in Dunoff, Ratner, & Wippman 5).  As states emerged, the need to communicate and coordinate according to definitive norms and principles also emerged as well as the need to delineate authoritative boundaries and interpret binding obligations.

The authority to rule over these sovereign territories was originally understood as a “divine right” proceeding from God or natural law, “a set of divinely ordained principles of state conduct, accessible to all endowed with right reason” (Reus-Smit 282).  Through influential philosophers like Hugo Grotius and Alberico Gentili, the concept of “positive law,” created by humans and practiced by states, began to take its place alongside and even supplant natural law as the primary basis for international law (Dunoff, Ratner, & Wippman 6). Read more

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