If You’re Planning to Sue China, Make Sure Your Antivirus Software is Up to Date

The big story a couple weeks back was Google’s threats about pulling out of China and the allegations of Chinese cyberattacks against Google and other U.S. corporations. Amidst all that, I missed the story about a series of cyberattacks carried out by China against a U.S. law firm that was representing the plaintiffs in a recently filed suit against the PRC.

Gipson Hoffman & Pancione, the law firm representing Santa Barbara-based software maker CYBERsitter, LLC, in a $2.2 billion software piracy action filed last week against the People’s Republic of China and seven major computer manufacturers in connection with distribution of the controversial Green Dam censorware program, has come under a cyber attack directed from within China. The attack comes on the heels of widespread reports of Chinese cyber attacks against Google. Cyber attacks were initiated from within China against CYBERsitter itself last June when the Green Dam piracy was first reported in the press.

The cyberattacks were in the form of emails disguised to look as though they originated from within the firm, but instead contained Trojans, which could have been used to allow the attackers to gain control of the firm’s machines.

Luckily for Gipson Hoffman & Pancione, apparently the Chinese hackers could not convincingly pull off American Lawyer email-speak, and the messages were written so suspiciously that no one actually opened the Trojans.

Aside from Google and the above law firm, at least thirty other American commercial entities have been subject of Chinese cyberattacks. Or, to use the polite euphemism favored by the State Department, “cyber intrusions.” Cyberattack, you see, could be a dangerous term for diplomats to bandy about — it comes to close to being an accusation that China is committing the most serious breach of international law.

Although starting a war with China is obviously in no one’s best interest, now or most likely ever, I think I would be willing to argue that, under international law, China’s actions (assuming all allegations are true) do constitute a use of force that would authorize the U.S. and other nations who were the subject of attacks to respond in kind. China, of course, is well aware that at this point no nation would as a practical matter retaliate with force, but the Chinese cyberattacks may end up forcing an international law of cyber-relations to develop faster than would otherwise be anticipated.

This is true not only for issues of international law governing the use of force, but also for international trade law. Baidu, the major Chinese internet search engine , saw its stock shares rise in price in the wake of the recent Google-China conflict. Baidu had already was the market leader, but was beginning to feel the squeeze from competition with Google — and Baidu will, undoubtedly, continue to benefit if the Google pull-out really does occur. It’s not hard to see where the potential for a national treatment violation lies in that, and it looks like Google’s lawyers have already been considering the possibility.

According to lawyers, the US could argue that Beijing’s censorship in effect discriminated against foreign services such as Google, contrary to its commitments under the General Agreement on Trade in Services (Gats).

“If China imposes harsher web filtering restrictions on Google than on local search engines, such as Baidu, Google may have a WTO discrimination claim,” said David Spooner, a former assistant secretary of commerce, now at the law firm Squire Sanders & Dempsey.

Interesting argument. But if their attorneys keep that kind of talk up, Squires Sanders & Dempsey may want to start being careful about opening any email attachments that come their way.


Sorry, Wirtland, You’re Not a Sovereign– Try Again In A Couple Centuries or So, Maybe Custom Will Have Changed Enough By Then

A few days ago, I got a comment on my post about Nauru’s recognition of Abkhazia. It linked to the blog for the Sovereign Cybernation of Wirtland:

According to official press release, Wirtland approached the government of Nauru with a formal proposal to transfer a piece of its territory to Wirtland. Nauru, one of world’s smallest island nations situated in the South Pacific, has vast barren terrain left over after several decades of phosphates mining. “Proposal for Monetization of Unused Land by cooperation between Republic of Nauru and Wirtland” is intended to utilize a piece of Nauru’s barren terrain. According to the Proposal, “Republic of Nauru officially assigns a piece of its territory, of any quality and size, to Wirtland. Nauru will have a major stake in future sales of land from this territory, agreed in contract”. In his letter addressed to the President of the Republic of Nauru, Chancellor of Wirtland underlined his hope that “such a plan, if realized, will make a positive effect on the economy of Nauru”.

How intriguing. Looks like someone is trying to implement my “buy a sandbar, become a nation!” idea. And if you’re interested in becoming a part of this burgeoning new developing country, you can of course get your citizenship application here. [PDF]

It’s almost too bad the scheme could never work. But Wirtland does get points both for creativity and for dreaming large.

Still, I’m a bit unclear as to how Wirtland plans exactly to carry out its ambitious national goals, given its limited “citizenship” base and non-existent power of taxation:

Wirtland aims to become economically self-sustaining. Wirtland builds communities, which will offer political and economic benefits, generate employment opportunities, provide new sources of artistic creativity and independent opinion-sharing.

To take Wirtland seriously for a moment, what happens if Nauru agrees to the deal they’re offering? Don’t say it won’t, if anyone will go along with the Wirtland scheme, it’s Nauru — they’ve already made clear their recognition goes to the highest bidder, and Nauru’s state recognition powers are arguably far more valuable than are the bleached and stripped patches of land in question. I’d say it’s extremely unlikely, given Wirtland’s limited financial resources, and the fact that Nauru’s recognition normally comes with a multi-million dollar price tag, but I’ll concede the idea is at least plausible.

So Nauru agrees. Now what? Wirtland has “land”, but not permanent population, no government with control over the territory, no capacity to enter into foreign relations, and (unless they convince Nauru to toss it in to sweeten the deal) no recognition. (Although I’m sure Wirtland would counter by pointing out that that they so can too enter into international relations. See, just check out their press release on the Georgia-Russia conflict! That’s totally a capacity to engage in foreign diplomacy!)

But private entities purchase land all the time, and don’t thereby become “sovereign” under international law due to their ownership. Even if Nauru bizarrely agreed to cede all rights and ability to control the land (which is unlikely), that would not necessarily change Nauru’s status as sovereign over it. Guantanamo Bay, for instance, is rented by and occupied by the United States, but formally, the area is still a part of Cuba’s sovereign territory.

In the event of Nauru ceding land to Wirtland, the most likely result is that the rest of the world simply continues to treat the “Wirtland” territory as Nauruan sovereign soil, and completely fails to acknowledge the existence of any entity calling itself Wirtland. As a practical matter, the issue is probably moot, as it’s not as if anyone else in the world is remotely interested in that particular piece of Nauruan real estate. So there will be no invasions or occupations or other scenarios which might present a legal challenge to the national character of the land, and so no reason for the precise legal status of the phosphate mines to be determined. But under international law, it is about as close to black letter law as you can get that the territory will not be considered Wirtland sovereign soil.

This would be due in part to the fact that Wirtland does not meet any of the other indicia of statehood. But, mostly, it would be due to the fact no other State on earth would give Wirtland recognition. The idea is just too preposterous, too cognitively jarring, for enough people all over the world to simply begin believing in the communal fiction of its statehood — and furthermore, Wirtland is too small to be a potential political benefit or a potential threat to other States, so Wirtland has no hope of short circuiting the normal process of recognition by bullying its way into statehood either.

Not to mention, under the Website Theory of Statehood, the most Serious and Authoritative barometer of statehood ever invented, Wirtland does not really present a strong case for sovereignty. Wirtland’s website only rates somewhere in the middle of the pack. Which sounds all right, until you consider that, as a “cybercountry,” really it should be held to a much higher standard with regards to its online presence than are the rest of the world’s currently unrecognized sovereigns.


Just How Certain Should an Expert Witness Be?

Via Barking Up The Wrong Tree, are uncertain experts more persuasive than experts who are firm in their convictions?

Experts are more persuasive when they seem tentative about their conclusions… But the opposite is true of novices, who grow more persuasive with increasing certainty.

In one experiment, college students were randomly assigned one of four variations of a restaurant review, praising a local Italian spot. In some versions, the reviewer was described as a famous food critic; in others, he was a technology worker at a local college with a penchant for fast food. Each of the critics expressed positive certainty about the restaurant’s virtues in one variation, and tentative praise in another. Asked to evaluate the restaurant, the students who read the expert’s review liked it much better when he seemed tentative; the opposite was true of the novice.

I wonder how this might play out with the use of expert witnesses in trials. In an expert witness showdown, both sides often seem to be lobbing absolutely-certain experts at one another, each with contradictory but adamantly endorsed opinions. For any case that is technically or scientifically complicated, it’s an open question about how much of the substance of the presentation that the jury really comprehends. Since by definition the witnesses are experts on the subject they’re testifying to, jurors probably will not have the expertise to judge the merits of their testimony, so it comes down more to the witnesses’ demeanor and authoritativeness.

Obviously, trial strategy should be based on something a lot more thoroughly researched than a stray psych study. But I think it is at least plausible that in a battle of the experts situation, having a (well qualified) witness who gives a more reserved endorsement would be more persuasive than an opposing expert who is willing to follow his testimony to the grave.


Jim McCormick, Maker of the ADE651™, Has Finally Been Arrested — But Why Did It Take So Long, Why Are ADE-651s Still Being Exported, and Why Didn’t They Arrest Gary Bolton Too

Well, here’s at least a little bit of good news. Jim McCormick, the managing director of the company that makes the ADE-651 “bomb detectors,” has been arrested in the United Kingdom on suspicion of fraud. Perhaps more importantly, the devices have been banned from export to Iraq or Afghanistan.

A few months back, I posted about the worthless dowsing rods produced by UK companies and marketed as bomb detectors to developing countries looking for ways to prevent terrorist attacks. The ADE-651, produced by ATSC, Ltd., and the GT-200, produced by Global Technical, are the most frequently sold of these magic bomb wands, and they are responsible for bombings in Iraq and Thailand that have killed hundreds of people.

After complaints by the British Embassy in Baghdad, and a recent slew of negative press attention, McCormick was finally arrested. And I very sincerely hope McCormick’s arrest will be shortly be followed by the arrest of Gary Bolton, the director of Global Technical.

And although the UK is to be commended for finally taking action against the ADE-651, in many ways, it comes as too little, too late. To hear the British authorities tell it, the arrest of McCormick was the result of swift and decisive action on the part of the the Department for Business, Innovation and Skills:

It added: “As soon as it was brought to the attention of the Export Control Organisation and (business secretary) Lord (Peter) Mandelson we acted urgently to put in place export restrictions which will come into force next week.”

This is, quite frankly, a load of rubbish.

Bomb sniffing devices are not a new scam. ATSC, Ltd. has been operating over in the UK for a decade, and Global Technical had been falsely claiming since 1999 that the bomb detectors were given the approval of the British Military. Early last year, the UK government told Global Technical to stop claiming the GT200 had been given the Ministry of Defense’s approval– but other than requesting that their name not be used to endorse the product, they took no action.

Unfortunately, not only is the UK’s “prohibition” on exports of the ADE-651 device not particularly timely, it is not particularly comprehensive either:

“We will be making an order, under the Export Control Act 2002, banning the export of this type of device to Iraq and Afghanistan.

“The reason the ban is limited to these two countries is that our legal power to control these goods is based on the risk that they could cause harm to UK and other friendly forces.”

So essentially they are only banning the ADE-651 in places where it might kill NATO forces. But as for the citizens of Thailand, civilian and police alike, that have been killed as a result of reliance on the GT200? Well, they can just go on continuing to be killed by the fake bomb detectors, that’s just too bad for them.

According to the UK bureaucracy, “[a]s non-military technology, [the ADE-651] does not need an export licence,” and therefore the UK cannot place a blanket ban on exports. I’m not extremely familiar with UK export law, but this explanation seems pretty blatantly inadequate. No matter how the statute happens to be phrased, I have to imagine that any device that is marketed as a way to detect car bombs and IEDs could be classified as a ‘military technology’ under it.


How many World of Warcraft Dollars to the Won? South Korea Prohibits MMORPGs from Banning All Forms of Virtual Currency Exchange

A recent decision from the Korean Supreme Court has ruled that MMORPGs may not prohibit exchanges between in-game and real-world currencies, at least in certain circumstances.

To describe the Korean case in brief: a player got caught engaging in online arbitrage with the in-game currency, and lost his account. He then sued the makers of the game and prevailed, with the Korean Supreme Court striking down the terms of Lineage’s user contract that prohibited such in game activity.

Although it is the “RMT trading has been legalized!!” headline that is getting all the attention, it is the Court’s willingness to engage in reformation of the MMORPG’s contract terms that is the truly significant aspect of the case. The Court is not simply permitting virtual currency prohibition — it is actually prohibiting a virtual world from setting its own fiscal policy. In effect, the Court is requiring that virtual money be treated the same as sovereign-backed currencies, at least in this one respect.

Many games won’t be happy about this — but for others, it will be an unexpected and extremely welcome boost. Whether a MMORPG embraces the creation of its own thriving e-economy or not depends upon the character of the game world. As Pixels and Policy explains,

It’s been standard practice to either discourage or ban real money transactions (RMT’s) since the rise of subscription service MMORPGS like World of Warcraft. In an RMT, the consumer exchanges real world currency for in-game cash, loot, or leveling. This is the kind of behavior encouraged by freeform worlds like Blue Mars and Second Life, but in a closed-world MMORPG, it can ruin the experience for others by devaluing the virtual economy.

One aspect of the Korean case that was relevant to the ultimate decision was whether or not virtual currency speculation is a game of skill or a game of chance. The court ultimately decided it was a game of skill, because it was the players themselves engaged in the arbitrage. Had there been proof in the case that the players were using bots or macros to carry out their economic activities, the Court seems to be saying it would have reached a different result.

However, even having a real player at the controls doesn’t stop some aspects of economic activity on MMORPGs from being extremely similar to a casino-style game of chance. From the Journal of Virtual Worlds Research [PDF] (yes, it actually exists),

From the provider’s perspective, the only costs that matter are base-value costs. Taxation and markup can be ignored, as these are merely transactions between players. Our estimated payout percentage of 95% implies that the provider (MindArk) retains, on average, 5% of the money spent on mining activities, thus returning to the player 95 cents (minimum 91 cents) for $1 played. From this perspective, the activity of mining is comparable to slot machines, where a spin costs a certain base-value and there is a long-term average payout (of 95%, in this case).


Addendum: Also thought I’d point out yet another example of a reporter for the New York Times doing research for an article by reading blogs or web boards, this time for a NYT Magazine article on Chinese gold farmers. For all the griping traditional media does about how inferior blogs are, and how blogs are merely parasites on bigger media, they sure do scrounge up a lot of their own material from the internet masses.

“Anybody from Minnesota is admitted.”

Earlier this morning, I was a reading a transcript from a hearing before the the District Court for the District of Colorado, and it included the following exchange:

MR. KELLEY: We also have motions pro hac vice for two other members of my firm from our Minneapolis office who are not admitted in Colorado.

THE COURT: Okay. Well, I am going to grant the motion for admission pro hac vice, but I do need to tell you it says that Mr. Liebman graduated from Yale Law School, and it’s my understanding it’s so hard to get there, that there isn’t one.

MR. LIEBMAN: I apologize for going there.

THE COURT: Don’t they just give you a degree once you get the admission standard?

MR. KELLEY: In redemption for or mitigation he is steeped in Midwestern values and only spent a brief period of time out there.

THE COURT: Anybody from Minnesota is admitted.


Two Very Scary Excerpts on the Condition of Haiti

On the Haitian economy:

All but one of Haiti’s textile plants – which account for 90 per cent of its exports – were in Port-au-Prince. Consequently, the earthquake has essentially knocked out the country’s entire export sector. The Port-au-Prince region also accounted for 85 per cent of government revenues.

And on Haiti’s dependence on UN food supplies:

The UN says that yesterday it managed to feed 40,000 people and that it hopes to increase that to 1 million people a day within two weeks, and 2 million in a month.

“By the end of Monday, we will have distributed more than 200,000 food rations in and around Port-au-Prince,” the UN World Food Programme announced in a statement. It said that it was establishing food kitchens to feed the hungry.

If the Food Program needs to be supplying rations to that many people a month out from the disaster, that is very foreboding news for Haiti’s long-term future. The population of the entire affected region is around 3 million — and some estimates have as many as 300,000 people there dying in the earthquake and its immediate aftermath. If so, that would mean the UN is gearing up to be responsible for the food supply of nearly three fourths of the people in the greater Port-au-Prince area. That is, to say the least, an unsustainable situation.

In a post last week, I brought up the issue of whether a state without a territory is still a state. But having a government is also one of the formal requirements of statehood, a condition which Haiti now only nominally qualifies for. I don’t think it’s too much of a stretch to say that it is only inertia and the continued communal belief that Haiti-is-a-State by the rest of the world that makes Haiti a State at all.


How Exactly Did The U.S. Come to Be In Charge of the Port-au-Prince Airport, Anyway?

Hundreds of media articles covering the ongoing events in Haiti report that the U.S. has “taken over”or is “running” the airport in Port-au-Prince. This has, predictably, already caused conflict with other States regarding the coordination of relief efforts, with France in particular criticizing U.S. administration of the airport.

What I cannot find, however, is any explanation of what the nature of the U.S. authority over the airport is and how it came to be. Did the Haitian government — which has taken no official action that I am aware of since the earthquake happened (and weren’t making that many before the earthquake either, for that matter) — come together long enough to authorize a U.S. administration of the airport? Is the U.S. simply in charge of the flight schedules, or is it literally in charge of the entire airport area?

I am beginning to suspect that the United States simply showed up first and announced it was in charge of the airport, and then because no one objected to this claim too loudly, it became a self-fulfilling declaration.

This article from the American Forces Press Service seems to suggest that is exactly what happened:

In his update, Elton underscored the speed with which Air Force personnel began operations after landing at the badly damaged airport around 7 p.m. on Jan. 13.

“Within 28 minutes of landing our first aircraft, we had special tactics combat control teams controlling the airspace around the airfield, and sequencing in the arriving aircraft that night,” he said.

That the United States simply seized control over the airport is not necessarily a bad thing, at all — someone needed to take point on the situation, and because the U.S. is the closest major power, it is the obvious choice — but it also raises a lot of thorny jurisdictional questions.

A quote from this article seems to suggest a possible legal source of authority, however:

Tucked between Port-au-Prince airport and the giant UN compound is a one-storey building with no security or reliable communications and only two small suites of grubby offices.

Before the earthquake hit, this was the headquarters of Haiti’s judicial police. It is now the seat of the Haitian Government and the office of President Préval, but it is seldom occupied, has no reception staff and people peer through the windows.

Hillary Clinton, the US Secretary of State, insisted yesterday that [President] Préval remained in full charge of both Haiti and the aid effort that is still failing to reach those who need it most. Mr Préval himself declares that he is in charge of events and the UN says that it directs rescue teams and distributes aid according to information received from his administration.

The idea that President Préval is currently exercising any significant government control right now is not credible. However, from a legal standpoint, it is in the best interest of the U.S. and the UN insist that yes, Préval is in charge, and yes, he has authorized various foreign and international entities to exercise jurisdiction over parts of Haiti. It clears up a lot of very messy legal problems that would otherwise exist, even if, in reality, the authority for the intervention comes ex post from a man sitting in a shack who has absolutely zero real power to exercise any control over Haiti.


Update: As soon as I put up this post, I stumbled across a better explanation how the U.S. presence is being justified under international law. Note that the following was issued just this weekend — a full four days after the U.S. took control over the airport.

A joint statement Saturday from the Haitian president and U.S. Secretary of State Hillary Clinton referred to an expanded U.S. security role.

“President Préval, on behalf of the Government and people of Haiti, welcomes as essential the efforts in Haiti by the government and people of the United States to support the immediate recovery, stability and long-term rebuilding of Haiti and requests the United States to assist as needed in augmenting security in support of the government and people of Haiti and the United Nations, international partners and organizations on the ground,” the document reads.

How much do you want to bet that the statement in question was a legal formality, drafted by some State Department lawyers and handed over for Préval to rubber stamp? Shoot, I’d probably even take a bet that Préval never actually read the document.

The Automation and Outsourcing of the American Lawyer

Most industries in the U.S. have, at some point or another, faced some form of outsourcing or automation, resulting in a reduced need for human workers. Because of the nature of legal work, however, in the past attorneys have largely been immune to these forces, and their jobs have been secure from computers and foreigners alike.

This is all changing. The use of computerized discovery and the outsourcing of legal tasks to foreign lawyers are both rapidly becoming a viable option for a broad range of services which were, formerly, only conducted by U.S.-barred attorneys. It remains an open question at this point which will have the bigger impact on the U.S. legal market: outsourcing or automation?

I was about to self-mockingly title this post “The Scylla and Charybdis of the Contract Attorney,” because I am convinced that “Scylla and Charybdis” may possibly be the most aggravating and overused cliche out there, except I found the phrase was too annoying to even use ironically. Still, the phrase may have been apt here — it is hard to think of any niche left for U.S. contract attorneys to inhabit that could not eventually either be computerized or done cheaper abroad.

A recent study looked at the efficacy of computerized document review as compared with the traditional method of examining voluminous stacks of paper for responsiveness: lots and lots of attorney man-hours spent on doc review. The article, Document Categorization in Legal Electronic Discovery:
Computer Classification vs. Manual Review
[PDF], involved comparing two teams of human re-reviewers and two e-discovery services. (With a summary on the findings about computer assisted doc review here.)

The study’s conclusion?

On every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of a human re-review.

It’s obvious why development of reliable e-discovery is such an intriguing possibility — in major cases, the costs of doc review alone can be astronomical, so any computer program that can cut down on the number of attorneys required would result in major savings.

The documents used in the study were collected in response to a “Second Request” concerning Verizon’s acquisition of MCI. The documents were collected from 83 employees in 10 US states. Together they consisted of 1.3 terabytes of electronic files in the form of 2,319,346 documents. The collection consisted of about 1.5 million email messages, 300,000 loose files, and 600,000 scanned documents. After eliminating duplicates, 1,600,047 items were submitted for review. The attorneys spent about four months, seven days a week, and 16 hours per day on the review at a total cost of $13,598,872.61 or about $8.50 per document. After review, a total of 176,440 items were produced to the Justice Department.

I was mostly struck, however, by just how inconsistent human reviewers are when it comes to doc review:

The level of agreement among human reviewers is not strikingly high.The two re-review teams agreed with the original review on about 76% and 72% of the documents. They agreed with one another on about 70% of the documents with corresponding kappa values in the low to fair range. Although low, these levels are realistic.

The computer methods had comparable results, finding agreement with the original review’s assessment 83.2% of the time for one system and 83.6% for the other.

FRCP Rule 26(g) requires only that discovery processes be reasonable and not unduly burdensome. Obviously what exactly qualifies as “reasonable” for discovery responses is a less-than-precise standard, but presumably the way we have been doing it for the past few decades qualifies. By that standard, then, e-discovery would seem to qualify as well.

Although we are still a long ways from automating legal services more complex than discovery tasks, legal services of moderate sophistication can and have been outsourced to attorneys in foreign nations. Although for a while now the legal industry has outsourced work similar in character to the tasks that computer systems are now being designed to do. Pangaea3, a legal outsourcing company based in India, is leading the charge for outsourced legal research and contract drafting:

[Attorney for Pangaea3] Ms Langstieh’s tasks include policing the misuse of clients’ trademarks on the internet and researching liabilities in different jurisdictions. She has been at Pangea3 for less than two years but has already travelled to Europe to meet clients and regularly speaks to customers in the West as part of her work.

This post by Timothy Corcoran concisely summarizes why outsourcing to India, a concept would seem utterly mundane to most businesses in America today, feels like a revolution in the legal industry:

Why such a furor? Simply because the work being outsourced isn’t the widely proclaimed mundane work of staff accountants, secretaries, mail room clerks and marketers, this is real legal work, the work of highly trained lawyers, that is being taken from top global law firms and moved to a heretofore unknown company with salaried lawyers! “What is the world coming to?!” is undoubtedly the cry in BigLaw law firm boardrooms everywhere. What, indeed.


Haiti, Humanitarian Assistance, and Extrinsic vs. Intrinsic Motivation: Why an International Law of Humaniatarian Assistance Would Reduce Foreign Aid

Right now, thousands of individuals from at least a score of nations are in Haiti, having been rapidly deployed there to offer assistance to the millions of Haitians now homeless, injured, or worse, as a result of the recent earthquake. Hundreds of millions of dollars have been pledged in aid, with more donations pouring in every day.

In Haiti, as has been the case in the wake of many other recent natural disasters, the state practice of rendering aid to the devastated region is widespread and pervasive. However, as far as I am aware, not a single nation has announced that it is sending aid to Haiti because it believes international law requires that it do so. There is no opinio juris, but merely states acting on the basis of their own independent motivations. And yet, it seems that every state that can offer assistance is doing so — not to mention so is every international organization, NGO, and corporation out there. Sub-state entities are offering help, too; a search and rescue team from Fairfax, Virginia, has been sent down to Haiti to help victims trapped in the rubble. Hell, even tiny little Togo has offered aid, along with a number of other developing nations. For a more complete account of who is doing what, a very detailed listing can be found at Relief Web. The list is as impressive as it is diverse.

Although human rights play a very large role in today’s international law jurisprudence, I suspect that, at least in cases involving high profile natural disasters, placing an affirmative duty on states to provide humanitarian assistance would ultimately reduce the amount of aid rendered.

Simply put, there just is not a need to give such a principle the force of law. For many reasons, among them moral duty and political posturing, states are already adequately motivated to supply aid in times of humanitarian crisis.
Aid — in the form of money, food and water supplies, search and rescue teams, infrastructure support, medical personnel, and much more — was immediate and widespread. The difficulty in getting aid to Haitian citizens has nothing to do with foreign states failing to act in support and everything to do with the horrendous conditions on the ground.

But if rendering humanitarian assistance were made to be an affirmative duty under international law, all the reasons for which states now offer foreign aid would be vastly diminished, and the total amount of aid given would almost certainly decrease.

“Crowding out” — otherwise known as the motivation crowding effect, to distinguish it from other kinds of crowding out — holds that offering external rewards or punishments to encourage someone to perform a task can, somewhat counter-intuitively, actually reduce people’s incentives to act, as the extrinsic reward undermines their intrinsic motivation. Developed both by economists and psychologists, the motivation crowding effect theory is a widespread phenomenon that appears in many different situations: [PDF]

The basic idea that rewards, and in particular monetary rewards, may crowd out intrinsic motivation emanates from two quite different branches of literature in the social sciences. Thirty years ago in his book The Gift Relationship Titmuss (1970) argued that paying for blood undermines cherished social values and would therefore reduce or totally destroy people’s willingness to donate blood. Though he was unable to come up with any serious empirical evidence his thesis attracted much attention. A second literature stems from psychology. A group of cognitive social psychologists have identified that under particular conditions monetary (external) rewards undermine intrinsic motivation. The application of rewards for undertaking an activity thus has indirect negative consequences, provided intrinsic motivation is considered to be beneficial

[T]here exists indeed compelling empirical evidence for the existence of crowding out and crowding in. This conclusion is based on circumstantial evidence, laboratory evidence by both psychologists and economists as well as field evidence by econometric studies. The evidence refers to a wide variety of areas of the economy and society: children’s learning behavior; patients’ readiness to take prescribed medication; monetary and symbolic rewards for undertaking various laboratory tasks; the tendency to reciprocate in the laboratory setting reflecting work conditions in a firm; the amount of trust exhibited in a laboratory situation of incomplete contracts; the reaction of managers to various forms of supervision by their superiors; the preparedness to offer voluntary work; the observation of time schedules in daycare centers; the on-time flight performance in the airline industry; the readiness to accept nuclear waste repositories (and other locally unwanted sites); and the amount of civic virtue exhibited, in particular with respect to fulfilling one’s tax obligations (tax morale).

If offering humanitarian assistance to foreign nationals struck by disasters became a legally mandated duty, either as a part of customary international law or enshrined in treaties, I see little reason to believe that there would be any increase in the amount of aid rendered. In the wake of disasters, the citizens of states who were now obligated to send money to foreign countries would feel resentment, not generosity, towards those in need of aid. States could no longer compete for moral brownie points with one another, or use aid as a means of obtaining soft power to support their political agendas. All of these motivating factors are far more compelling reasons for states to give aid than would be international law, which is a notoriously flimsy motivator of state action.

States would likely still give aid, of course, if they believed they were required to by law. But they would give only enough to satisfy whatever their duty was, and would use clever lawyers to reduce the amount they were required to give, or to explain why a “humanitarian disaster” was not really a humanitarian disaster and therefore no duty to render aid existed.