The Outer Space Treaty

On this day in 1967, the Outer Space Treaty entered into force, becoming the first effort to establish universal principles and guidelines for activities in outer space. It was created under the auspices of the United Nations based on proposals by the world’s two principal space powers, the United States and Soviet Union.

Naturally, I took the opportunity to improve the Wikipedia article about it, which deserves greater justice (See the before and after photos below.)

It may not be a household name — then again, few treaties are —but the Outer Space Treaty remains one of the most relevant texts in international law today. It is the foundational framework for what we now know as space law, a legal field that is more relevant than ever now that dozens of countries and companies are actively involved in space activities.

The Outer Space Treaty forms the basis of ambitious projects such as the International Space Station (the biggest scientific endeavor in history) and the Artemis Program, a U.S.-led international coalition to return humans to the Moon and to ultimately launch crewed missions to Mars and beyond.

May be a black-and-white image of 2 people, people sitting and indoor
The treaty was signed in Washington, Moscow, and London, representing the first three countries to have artificial satellites in space at the time.

The main crux of the Outer Space Treaty is preventing the placement of weapons of mass destruction in space; broader principles include allowing all nations to freely explore space; limiting space activities to peaceful purposes; preventing any one nation from claiming territory in space; and fostering goodwill and cooperation in space exploration (such as rescuing one another’s astronauts or preventing our space probes from damaging others).

I know, I know, it is all quite idealistic. But all things considered, the treaty has held up fairly well: Most of the world’s countries, including all the major space powers, have ratified it and abided by its terms (after all, it is in everyone’s self-interest to keep everyone else from putting nukes in space). Naturally, some provisions were written vaguely enough to allow some workarounds — for example, space forces are still allowed so long as they are not armed with WMDs and belligerent.

The Outer Space Treaty is influential enough to still be referenced by the major space programs, and has enough legitimacy that every government feels the need to at least pay lip service to its terms. Whether this holds up in an ever-intensifying rivalry among both countries and companies is a different story — but it is certainly better than nothing.

Srebrenica and the ICTY

Last week was the 25th anniversary of one of the worst atrocities in the world, and the first in Europe, since the Second World War. From July 11th through the 22nd, over 8,000 men and boys were rounded up and massacred in and around the town of Srebrenica, in present day Bosnia-Herzegovina. The victims were targeted Serbian paramilitary forces for being Bosniaks, a predominantly Muslim ethnic group that were among the peoples vying for an independent state following the collapse of Yugoslavia.

The crimes in Srebrenica were part of the broader Yugoslav Wars that broke out almost as soon as Yugoslavia began to unravel in the early 1990s. Over the span of a decade, several different conflicts broke out, most characterised by indiscriminate slaughter, the targeting of civilians, war rape, and other crimes against humanity. Many concepts and principles in international law, particularly with respect to criminal and human rights law, were refined or developed in relation to wars; the term “ethnic cleansing” originated as a euphemism among the perpetrators of crimes like Srebrenica.

Having studied genocide and political violence in undergrad, and international criminal and human rights law in law school, Srebrenica is deeply seared into my mind. As my time and willpower are both short in short supply, I’ll focus on the sole bit of justice and redemption for humanity that emerged from this decade-long horror show: the International Criminal Tribunal for the former Yugoslavia (ICTY), established by the United Nations specifically to address crimes like Srebrenica perpetrated during the conflict.

ICTY logo.svg
Official logo of the ICTY
The Tribunal’s headquarters in The Hague, Netherlands

The Yugoslav War had just started when the Tribunal was created, and the massacre at Srebrenica would not occur for another two years. The idea of prosecuting crimes committed, or yet to be committed, in the former Yugoslavia had been proposed by Germany—the last country to be subjected to a war crimes tribunal, at Nuremberg after WWII, up until that point. Remarkably, all fifteen members of the UN Security Council agreed to set up a special court that would try perpetrators of war crimes and crimes against humanity. It is hard to imagine such unanimity today.

Of course, there is something deeply grim about the UN—and even its most powerful members—failing to prevent or stop these horrific crimes, yet setting up a court to address them in the meantime. But as any student of international relations knows, such as the power of state sovereignty, the principle that no country should interfere in the affairs of others accept in the most extreme circumstances (i.e., a world war). Among other reasons, the horrors in the former Yugoslavia were probably just too contained in these small, newly-minted countries for any country to be willing to risk the money and troops (a problem we’re all too familiar with years later, given the continuing bloodletting in Syria).

But, as The Economist and others have pointed out, the ICTY, though too little and too late in its prosecutions, did bring justice to virtually all those who planned, led, aided, or were involved in the atrocities at Srebrenica and elsewhere. It’s difficult to overstate how remarkable it was the such an institution was every established, let alone allowed to do its work, even by the most powerful global interests.

As the Bosnian war ground on and Serb forces besieged Sarajevo, the Bosnian capital, foreign powers could not agree how to respond. No one wanted to send troops to separate the parties. But they all approved the prosecution of war criminals, so backed the establishment of the tribunal. At first the court, based in The Hague, had little money. It also had no police of its own to arrest anyone indicted. But over the years its influence increased. It demanded that the Balkan states and others carry out arrests, and also got help from NATO-led peacekeepers in Bosnia. It succeeded in making the handing over of those indicted a political issue, with sanctions slapped on Serbia and Croatia when they dragged their feet.

Some of its achievements were legal and some political. Several of the most evil of the wartime actors were imprisoned. The tribunal gave victims and civilians a voice, and often justice, in a way that would not otherwise have been possible. It created new legal precedents. Sexual violence is now considered a war crime. It established the groundwork for other courts, including those that looked into horrors committed in Rwanda and Sierra Leone, and the International Criminal Court (ICC). Its 2.5m pages of transcripts provide an extraordinary archive. It established that genocide had taken place when some 8,000 Bosniaks (Muslims) were murdered as Srebrenica fell. To weigh against all this there must be the acknowledgment that many believe that justice was not always done. The hopes that many had for the tribunal have at times been disappointed. It did not accelerate the process of reconciliation. Many believe there was interference, from America and elsewhere, in its work. In cases related to Kosovar Albanians, in particular, prosecutors alleged witness-tampering.

According to Eric Gordy, a sociologist at University College London’s School of Slavonic and East European Studies, the court tried to end impunity for war crimes and in this “it was partially successful”. It was founded at a time when there was still some consensus about the need for this. Now, sadly, that is no longer the case. There is no international tribunal indicting anyone for war crimes in Syria. Russia and America are among those countries that have either withdrawn from the jurisdiction of the ICC or never ratified its statute. It remains to be seen whether the Yugoslav tribunal will become a relic from a more hopeful time or a trailblazer in a cause that was always bound to suffer setbacks.

For my part—and I say this as a privileged Westerner who is not even remotely impacted by these events—I believe the ICTY was a success. It indicted 161 individuals, from common soldiers all the way to prime ministers. Ninety defendants were convicted and sentenced, including the main perpetrators of the Srebrenica massacre.

On a broader level, the Tribunal developed international law and justice more substantively than any body since Nuremberg. , until very recently, it was the only court judging crimes committed as part of the Yugoslav conflict. Its lengthy and highly detailed proceedings helped gather and establish extensive facts about the horrors committed. Thousands of victims gained justice and a voice, including a myriad of eye witnesses, survivors, and the loved ones of victims. Several concepts in international criminal and human rights law were fleshed out or adjudicated for the first time. Many of the Tribunal’s decisions and findings would go on to influence national and international courts worldwide, including the tribunal established in the aftermath of the Rwandan Genocide.

Justice delayed is still justice served, for whatever that is worth. The Tribunal has not been without its criticism and shortcomings. It does not make up for the overall indifference and cynicism of the international community, which has hardly improved. And it certainly does not restore the hundreds of thousands of lives destroyed or traumatized in the former Yugoslavia, with survivors still shattered and wounded. But for much of human history, the very concept of a war crime—let alone prosecuting one—was alien. Indiscriminate looting, rape, and slaughter were acceptable against enemies or conquered peoples, broadly construed. The arc of progress, of human morality and fairness, is long, slow, and rarely linear. So many people have suffered and died along the way, and I shudder to think how many more will until crimes like Srebrenica are no more.

Bosnian Serb leader denies genocide in Srebrenica massacre
How much longer until this becomes a thing of the past?

Germany Commences the First Yazidi Genocide Trial

It is fitting that Germany should lead the way in prosecuting and trying alleged perpetrators of the horrific genocide against the Yazidis in Iraq. According to Just Security:

On April 24, 2020, six years after the Islamic State (IS) began persecuting and exterminating the Yazidi, the first ever trial addressing genocide against the religious minority will commence in Frankfurt am Main. In this case, as in the first case addressing state torture in Syria against two former Syrian intelligence officers whose trial started in Koblenz today, the complications of prosecuting mass crimes in third states collide with the long-awaited hope for accountability.

Iraqi national Taha Al J. is accused of having trafficked human beings for the purpose of labor exploitation and having cruelly killed a person as a member of IS. The suspect is charged under the Code of Crimes Against International Law (CCAIL) – the 2002 implementation of the Rome Statute into German criminal law – for acts of genocide, crimes against humanity, and war crimes.

The article gets into the grim details of the charges, but suffice it to say that they are deeply disturbing. The brutal campaign against the Yazidis has claimed thousands of lives, forced tens of thousands more from their ancient homeland, and has left an estimate 3,200 women and girls in sexual slavery. Even with Islamic State on the retreat, justice for the Yazidis and other victims remains elusive—hopefully not for long.

It is a testament to Germany’s commitment to international justice that it has implemented the principle of universal jurisdiction, in which a country or international organization (such as an international court), claims criminal jurisdiction over someone regardless of where the crime occured and whether the individual has any relationship. The idea is that some crimes are so serious, such as genocide or crimes against humanity, that they are inherently international in nature—they harm humanity as a whole and should not be tolerated.

As Just Security notes, the trial is remarkable for several reasons. Aside from being the first to address the crimes against the Yazidis, it is also the first trial to take place under universal jurisdiction, and to charge the crime of genocide under the CCAIL, which was enacted 18 years ago. Here’s hoping it isn’t the last.

A Multipolar Post-COVID-19 World?

Russia now has the third highest number of COVID-19 infections after the U.S. and Spain, with Putin reportedly seeing a drop in his usually high approval ratings. (Though the country seems to be faring relatively well otherwise.)

It is interesting how virtually all the major world powers have been brought low by this pandemic. Meanwhile, countries like Germany, South Korea, Taiwan, New Zealand, Vietnam, Costa Rica, and Greece (among others) have seen their geopolitical stars rise, to varying degrees, from their effective responses.

The first three have become especially more influential, with leaders across the world turning to them for guidance and assistance. Taiwan, which is officially shunned by all but fifteen countries, now has more friends in the world fighting for its inclusion in the international system. Germany’s economic and political policies are seen as the gold standard by rich and poor countries alike.

Obviously, different countries were hit in different ways, and larger nations like the U.S., China, and Russia would ostensibly have a harder time containing an outbreak. But that doesn’t matter: These nations—especially the U.S.—claim to have the superior political model with which to lead the world; they also generally have more resources than smaller countries. Thus, they have raised the standard by which they are judged.

Since the turn of the 21st century, there has been much talk about whether we are entering a “multipolar” world, one in which no country really dominates. It’s hard to imagine the U.S. and China not being the most influential nations, but it’s likely their influence will continue to fall in -relative- terms: Not a decline so much as the rise of everyone else.

But I’m just thinking out loud.

Expecting Too Much from the W.H.O.

The World Health Organization’s annual budget is roughly the size of a large hospital and one-fourth the budget for the C.D.C.

With these comparatively small funds, the W.H.O. must carry out its official mission of ensuring “the highest possible level of health” for “all peoples.” That includes eradicating diseases (such as smallpox and soon polio), facilitating research and cooperation (which recently gave us the first Ebola vaccine), promoting nutrition, setting universal healthcare and medical standards, and responding to emergencies like pandemics.

With this small budget, backed by its pleading for further funds, the W.H.O. has shipped more than two million items of personal protective equipment to 133 countries, and is preparing to ship another two million items in the coming weeks. Just a couple days ago, it delivered one million face masks, along with gloves, goggles, ventilators and other essential goods to Africa. More than a million diagnostic tests have been dispatched to 126 countries worldwide and more are being sourced as we speak.

As early as February, the organization brought together 400 of the world’s leading researchers (including from rivals the U.S. and China) to identify research priorities. It launched an international “Solidarity Trial” involving 90 countries, to help find effective treatment, and is currently running a “mega-trial” of the four most promising COVID-19 treatments and vaccines from around the world.

The W.H.O. has developed research protocols and guidelines that are being used in more than 40 countries. It got 130 scientists, donors, and manufacturers to commit to speeding up the development and delivery of a vaccine.

Through its innovative online “OpenWHO” platform, the W.H.O. pools together the world’s knowledge and best practices and delivers it to frontline personnel rapidly through an app. Users take part in social learning network, based on interactive, online courses and materials covering a variety of subjects. OpenWHO also provides a forum for the rapid sharing of expertise, in-depth discussion and feedback on key issues. So far, more than 1.2 million people have enrolled in 43 languages.

Again, all this for the cost of running a big hospital. While the U.S. does contribute one-fifth of the agency’s budget, this amounts to $893 million—a drop in the budget of our annual budget, which includes over $700 billion for the military alone. Talk about bang for our buck.

Moreover, we had pledged $656 million for specific programs, including polio eradication, health and nutrition services, vaccine-preventable diseases, tuberculosis, HIV—and preventing and controlling outbreak. And we’re still trying to do more damage to them.

Even as it launches another international mega-trial of the most promising treatments and vaccines, the U.S. is stubbornly refusing to take part.

Lawfare does a great job of breaking down how absurd our expectations of the W.H.O. are. While it concedes that the W.H.O. dropped the ball with China (something I also admit), it also reminds us of the far bigger and more complex picture regarding its relations with member countries (and the inherently political nature of health problems to begin with).

The work of the WHO is inherently technical; it does not need to make the sort of charged political decisions demanded of the U.N. Security Council, where the vital interests of different countries repeatedly conflict. Nor is it required to take a stance on the sensitive ideological values of different countries, as human rights organizations must. And because the WHO’s mission is narrowly defined in relatively objective terms, its performance can be evaluated with relative ease—for example, by using straightforward public health metrics. This ought to give WHO officials incentives to act appropriately and reduce the risk that countries are unable to discipline it if it fails to. The WHO’s leadership in the eradication of smallpox and in advances against polio seemed to validate this theory.

[…]

It is tempting to blame the WHO itself for its problems—its notoriously complex bureaucracy, its decentralized structure, its “culture” or the persons who run it. But all of those things are a result of the political constraints it operates under, as many reform-minded critics have observed. Big bureaucracies are established to guard against errors. In this context, this means staying away from actions that will offend member states whose support (financial or otherwise) is necessary for WHO’s operations. The sorts of bureaucratic reform that WHO insiders and sympathetic critics have called for over many decades would not protect the WHO from leaders like Trump.

It turns out that even the expert-led technical interventions of the WHO are politically charged. And this is not just because some countries want to hide disease outbreaks from the world. Countries also disagree about the problems that the WHO should focus on in the first place. The setting of priorities and allocation of resources among different public-health challenges are policy choices, not technical choices. The WHO is not an anti-pandemic organization or an infectious-disease organization: It is a health organization, and health policy is intensely contested around the world.

Many of the familiar cleavages in international politics had begun to pull apart the WHO long before the coronavirus pandemic. People disagreed about which health threats should be given priority, and the WHO found itself torn between governments, interest groups, activists and donors who wanted the organization to give priority to different things—HIV/AIDS and other infectious diseases, tobacco use, obesity, even climate change. And then there is intense disagreement about whether the WHO should give priority to developing countries and, if so, how much. The WHO has set itself the goal of correcting global health care inequality, which begins to seem like a redistributive program from north to south—the sort of thing applauded by academics and commentators but politically explosive, to say the least.

As I have previously argued, the W.H.O. doesn’t have the resources or power to stand up to any country, especially since virtually every country plays a role in its funding, governance, and the election of its director-general. If even most of the world is deferential to China—only fourteen nations officially recognize Taiwan instead—how can we expect an organization responsible for so much, with a small budget, few personnel, and no sovereign power, to somehow be any different.

The Tiny African Country Taking on a Genocidal Government

Meet Abubacarr Tambadou, the Justice Minister of The Gambia—a tiny African country barely twice the size of Delaware and with fewer people than Miami-Dade County—who is taking on one of the worst genocides in the 21st century.

Under his direction, The Gambia is the only country to file a claim in the International Court of Justice (ICJ) against Myanmar for violating the Genocide Convention through its persecution of the Rohingya Muslims, which has killed tens of thousands and driven out over a million more. Tambadou also convinced the 57-member Organisation of Islamic Cooperation to back the effort, bringing a fourth of the world behind him.

Born in 1972 as one of the middle children of 18 siblings, he considered himself lucky for his middle-class upbringing. He had no intention of studying law—having excelled in sports all his life—but the first offer he got was a law program at a British university. After graduating in the 1990s, he returned home to be a public prosecutor.

At the time, Gambia was ruled by a vicious dictator who frequently killed and tortured real or perceived political opponents. In 2000, when security forces killed over a dozen student protestors, Tambadou was roused into pursuing human rights work.

To that end, he soon left Gambia to join the United Nations’ Tanzania-based International Criminal Tribunal for Rwanda (ICTR), where he successfully prosecuted some of the genocide’s most notorious perpetrators, including former army chief Augustin Bizimungu, who was sentenced to 30 years in prison.

As he told the BBC, what he was doing “was not just prosecuting the Rwandan genocidaires”, but “was a way for us Africans to send a message to our leaders… I saw it as more of an African struggle for justice and accountability than a Rwandan one.”

Sure enough, in 2017, Gambia’s dictator fell after 22 years of power. Opposition leader Adama Barrow took power promising to restore human rights and address corruption, prompting Tambadou to return to help lead this effort.

“Twenty-two years of a brutal dictatorship has taught us how to use our voice. We know too well how it feels like to be unable to tell your story to the world, to be unable to share your pain in the hope that someone out there will hear and help.”

A devout Muslim with a prominent prayer bump on his forehead, Tambadou acknowledged that Islamic solidarity was a factor behind Gambia and the OIC’s actions but emphasized that “this is about our humanity ultimately”.

Indeed, it was after visiting a refugee camp full in Bangladesh of genocide survivors that he was spurred to act. Last spring, Gambia foreign minister pulled out at the last minute from the annual conference of the OIC in Bangladesh, sending Tambadou instead. While there, he joined an OIC delegation visiting overcrowded refugee camps, hearing stories of children burnt alive and women systematically raped; he claimed to even smell the stench of dead bodies from across the border.

“I saw genocide written all over these stories”, he said in an interview, no doubt making the connection between these accounts and what he had learned after ten years prosecuting Rwandan perpetrators for similar crimes.

To that end, his case against Myanmar—which took the world by storm—has for the first time forced its leaders to answer for their alleged crimes. Though the case will no doubt take years to resolve—given the high bar set to prove genocide—the ICJ has since ordered Myanmar to cease its actions against the Rohingya, not buying the argument that it’s simply the result of a broader military conflict.

Yes, I know: It’s a toothless order given the nature of international law. But it’s powerful nonetheless, as many Rohingya themselves agree:

Yet the mere fact that it took place at all counts as a huge moral victory for the Rohingya. For the first time, this group — which has endured decades of systematic discrimination at the hands of its own government — experienced a fair hearing from an impartial tribunal. The power of that realization prompted tearful reactions from Rohingya activists in The Hague.

“It was very emotional to see the military facing charges in a court for the first time,” U.K.-based Rohingya activist Tun Khin told me. “The military have been getting away with human rights violations against us for decades. We have worked so hard for this day.”

And to think it began with a public prosecutor of a small country most have never heard of.

To that end, Mr Tambadou thinks this is the time for The Gambia to reclaim its position on the world stage. “We want to lead by example” in human rights. “The case at ICJ is Gambia showing the world you don’t have to have military power or economic power to denounce oppressions. Legal obligation and moral responsibility exist for all states, big or small.”

Sources: BBC, Reuters, CFR

The Antarctic Treaty

On this day in 1959, twelve countries signed the Antarctic Treaty, the first arms control agreement established during the Cold War, which set the continent aside as a scientific preserve, allowed for freedom of nonmilitary research, and banned all military activity (including nuclear tests).

Official flag of the Antarctic Treaty

Impressively, the first countries to sign on were the Soviet Union and the United States, as well as all the countries that had official territorial claims over the continent. After entering into force in 1961, the Treaty helped keep Antarctica neutral, and has been honored to this day, making it one of the most successful treaties in the world.

Competing, but unrealized, claims over Antarctica.

There are now 54 members states, most of which maintain research stations throughout the continent. The Antarctic Treaty has since expanded through a series of agreements governing everything from environmental protection to mineral rights. A monitoring body based in Buenos Aires, Argentina ensures compliance while facilitating further consultations and developments.

It is yet another understated example of international law effectively at work!

Switzerland’s Fascinating Constitution

On this day in 1848, Switzerland drafted its first constitution, which created a federal system of government inspired partly by the United States and partly by France — two countries with very different approaches to republican governance.

While most of Europe was experiencing revolutionary uprisings, the Swiss set up system that officially abolished the nobility, established a bicameral legislature called the Federal Assembly (like our House and Senate), and combined centralized authority with significant autonomy for states and cities (the Swiss equivalent to a U.S. state is called a canton).

Thus, Switzerland—which even in the 13th century had set up a quasi-federal form of government—became one of history’s oldest constitutional republics. Federalism became, and remains, a key unifying ideal for a people divided across different languages, religions, and regional identities (since mountainous countries are notoriously fragmented).

But the Swiss model differed from America’s in two keys ways.

First, their constitution required every amendment to be approved by referendum, i.e. the popular vote. The Swiss balanced representative institutions with what they called “popular rights”: The parliament would do its job, as in any other republican system, but the people could keep them in check.

Second, the constitution had a clause stating that it could be completely rewritten if it was deemed necessary, thus enabling it to evolve as a whole instead of through piecemeal amendments. Thus, when the Industrial Revolution brought about various social and economic challenges (as it did in the U.S. and elsewhere), the Swiss responded in 1891 with a modified constitution that, among other things, allowed the people to initiate and approve constitutional changes themselves, while giving the federal government more responsibility for national security, trade, and the economy.

Direct democracy and federalism remain hallmarks of Swiss political and cultural identify. Swiss citizens may challenge any law passed by parliament if they gather 50,000 signatures against the law within 100 days. Then a national vote is scheduled where voters decide by a simple majority whether to accept or reject the law. Alternatively, any eight cantons can band together and also call for a constitutional referendum on a federal law.

Similarly, the federal “constitutional initiative” allows citizens to put a constitutional amendment to a nationwide vote if 100,000 voters sign the proposed amendment within 18 months. Then, the Federal Council (the Swiss equivalent to the presidency) and the Federal Assembly can supplement the proposed amendment with a counter-proposal, and voters must indicate which proposal they prefer.

Essentially, the people and their representatives directly engage with one another to sort out political questions. Every constitutional amendment must be accepted by a “double majority”: Most Swiss people must approve it, but so do most of the country’s 26 cantons.

The Offenses Clause and America’s Commitment to International Law

Article I, Section 8 of the U.S. Constitution contains the obscure but significant “Offenses Clause“, which empowers Congress to “define and punish … Offenses against the Law of Nations.” The law of nations was the 18th century term for what we now call international law.

As the time, these “offenses” would have included “attacks on foreign nations, their citizens, or shipping;” failing to honor “the flag of truce, peace treaties, and boundary treaties” (including unauthorized entry across national borders); and mistreating prisoners of war. The law of nations also obliged states to prosecute pirates, protect wrecked ships and their crew (regardless of their nationality); and protect foreign dignitaries and merchants in their territory.

Thus, the Framers clearly sought to convey to the world that the U.S. would be a responsible actor among the global community, enshrining in its highest legal instrument a commitment to safeguarding foreign nationals, property, and interests, even if it means ostensibly prosecuting American perpetrators.

Some jurists have argued that this provision, in theory, permits Congress to criminalize private conduct in the U.S. that violates international law.