Climate Change and the Jurisprudence of Statehood: Is a State Without a Territory Still a State?

I went to the program ASIL had yesterday on “Rights-Based Responses to Climate Change Induced Displacement,” which discussed the role of international law in handling ‘environmental migrants’ and internally displaced persons who are forced out of their homes as a result of conditions brought on by climate change. One of the speakers brought up an interesting scenario I had not considered before.

Rising sea levels may pose a serious risk to the national security of many island nations. For states such as the Bahamas and Tonga, a higher sea level is a grave threat, as the low lying parts of their territories that are at the greatest risk of going under tend also tend to be the areas of greatest habitation. But for other island nations, such as Kiribati, the Marshall Islands, the Maldives, and Tuvalu, climate change may pose a more severe and existential threat: these states may actually be at risk of becoming entirely submerged by rising sea levels. If these island states were to become completely swamped so that no part of their islands were above sea level, effectively leaving them with no physical territory to call their own, would they continue to exist as an entity recognized by international law?

Prof. Kälin mentioned the possibility of citizens of these at-risk countries becoming “stateless” if their islands go under. But statelessness, as he put it, could mean being without a nationality, not being without a state.  Even if an island nation were swamped, it does not necessarily imply that its government would not continue to exist.

Under international law, the traditional criteria for statehood does include “territory.” However, would such a formalist interpretation prevail after a climate related disaster sunk a whole nation? Or, in practical terms, would any state really have the callousness to stand up and announce, “It is unfortunate that the Maldives was submerged by rising sea levels, but we now object to its continued claims of statehood and UN Membership”? Maybe I am being too generous, but I doubt it.

There is also the possibility that any sunken nation could build up a tiny sandbar over the remains of their country, if the technical requirement of territory is found to be mandatory. There is no requirement that a state’s government be located within its own territory, after all — merely that a state have some territory to speak of, even if the seat of government is not located there. For instance, the internationally recognized governmental body of Somalia has at times operated out of the neighboring territory of Kenya, due to the unstable situation inside of Somalia itself.

Additionally, although the concept of statehood as a corporate-esque abstraction — a social construct characterized by its citizens voluntary allegiance, with little or no regard for the geograpgical location — has been a somewhat common trope in science fiction, there is in fact some modest precedent for the idea under international law. The Order of Malta, for example, has no territory of its own, but it claims to be a non-state sovereign entity, and has permanent observer status with the UN. It has diplomatic relations with 103 states, and even issues its own currency and stamps. Although most international scholars reject the notion that the Order of Malta is an “actual” sovereign entity, it clearly does exhibit some sovereign-like traits in practice.

Perhaps a nation submerged by rising sea levels would face a future similar in some respects to the current status enjoyed by the Order of Malta, although it seems likely a formerly-territoried state would face far less objection to its continued claims of sovereignty. The theoretical underpinnings of statehood have always been forced to evolve and adapt to changing political structures, however; it is not too difficult to imagine a hypothetical future world in which the idea that statehood is dependent upon attachment to a patch of dirt is considered to be archaic.

-Susan

© 200 B.C.: Starbucks’ Encounter With Intellectual Property Rights in Historic Artifacts

After being notified by the Mexican government that its new line of mugs featuring images of pre-Hispanic archeological sites and artifacts was an unauthorized use of Mexican cultural intellectual property, Starbucks has agreed to pay up.

Starbucks said Thursday it regrets any misunderstanding, and “we are willing to pay the appropriate amount for the use of these images.”

Mexico’s government archaeological agency says the images of the Aztec calendar stone and the Pyramid of the Moon from the pre-Aztec ruins of Teotihuacan are the intellectual property of the nation. The agency will decide how much Starbucks should pay.

The existence of intellectual property rights on pre-Aztec artifacts makes the current terms for copyright in the U.S. seem quite reasonable in comparison.

It appears that it is the Mexican division of Starbucks at issue, so the company is of course required to comply with any Mexican laws regarding cultural heritage and intellectual property. Outside of Mexico, those laws would have no direct effect, and you’re free to place the Pyramid of the Moon wherever you want.

-Susan

“By accepting these Terms, you agree to relinquish custody of your first born child to us.”

Perhaps I should make more of an effort to read Terms of Service agreements after all?

The image was hosted on PC Pitstop’s homepage, so they are clearly not concerned with it being publicized. But why would a company add such a term? There are two issues behind the inclusion of ‘Special Consideration’ clause that strike me as odd.

First, the clause itself is not enforceable — it is a classic illusory contract. Although it would pass as a unilateral offer and thus acceptable by anyone who actually read it, the last sentence negates any contract like quality it may have. “This offer can be withdrawn at any time” means that PC Pitstop has not actually committed itself to anything at all, and thus has given nothing up, and thus there is a failure of consideration.

Second, depending on how this clickwrap license is set up, the inclusion of the ‘Special Consideration’ clause could actually undermine PC Pitstop’s legal position. Although clickwrap licenses are far from black letter law, the basic theme behind them is that they are held enforceable where they are designed so as to provide reasonable notice and, generally, are assented to by the user’s affirmative conduct. However, by offering a gift in its Terms of Service (ToS), the company is effectively making a demonstration of how few people ever bother to read the ToS. It would by no means be dispositive proof, but if the ToS ever wound up in court, a user might be able to show how he in particular and users in general were not given an effective opportunity to review the terms, because 99.99% of them never tried to cash in on the offer.

As for clickwrap licenses more generally, I believe they provide a good example of how ill-suited old legal forms are when they are attempted to be grafted on to new technology. It is not a secret that no one reads the ToS forms — heck, I remember from 1L year, our contracts professor admitted that she herself never bothered to read them — and yet courts insist on using centuries old contracts principles to analyze them. As seen by Bragg v. Linden Lab, courts can find a term from a ToS ‘unconscionable’ when they do not want to enforce it. This threatens to result in an extremely inefficient system in which contracts are announced unilaterally by one party, never read by the second, and then treated as a “cafeteria contract” by the judge who picks which clauses she wants to keep and which clauses she wishes to discard. The judiciary of course has a little other option, but it would be nice to see the legislatures jump in and establish contract laws that are better suited for the unique online environment.

Unfortunately, given the nature of the internet, allowing state legislatures to direct the process is not an ideal solution either. Much as I reflexively dislike the idea of the federal government involving itself with contract formation, it may be necessary in order to create a more orderly, contractually agreed upon cyberspace.

-Susan

Legal Unemployment, Worldwide

In thirty years, China has gone from having six law schools to having 634. Predictably, this is not entirely good news for the graduates of those schools, as law is now the hardest profession to find employment in:

Law has topped the list of the 10 most difficult professions to land a job in the country for two consecutive years, taking the No 1 slot in 2008 and No 2 in 2007, according to a joint study released in June 2009 by China’s Academy of Social Science and Beijing-based consulting company Mycos Institute.

However, I found this even more curious:

The other majors [that are difficult professions to find employment in] include computer science, English, international economics and trade, business administration, clinical medicine, Chinese literature, art design, electronic engineering and accounting.

To be fair, ‘Chinese literature’ and ‘art design’ might be the Chinese equivalent of an American liberal arts degree, the kind everyone derides as being not good for much in the real world. But clinical medicine? Engineering? Accounting? Business administration? These are the sort of majors that sensible, job-oriented students take that are, in the U.S., supposed to leave graduates happily having their pick of employment, while their lowly English lit classmates are waiting tables.

It suggests to me, anyway, that there is nothing particularly unique about the plight of law grads in China, but that the market for highly educated labor in general is somewhat stunted.

Still, this could very much be a hindrance to China’s long-term development.

“Law graduates have the most difficulty in job hunting, which means the supply has exceeded the demand,” Wang said.

“If there is no adjustment in place soon, it is not good for the development of law in the long run.”

Unlike the U.S. — which, I might reluctantly concede, may simply have an overabundance of lawyers in general — China has come no where near to meeting the potential demand for lawyers, but rather the legal infrastructure that would support all those theoretical legal jobs has yet to materialize. The creation of a political climate that respects the rule of law necessarily requires the presence of lawyers, however. China’s fledgling legal system is characterized more by the rule of men, but there is, at least in theory, a legal system in place. A healthy bar that continuously engage in litigation to resolve disputes may or may not eventually result in a robust Chinese legal system, but nothing else has a chance of doing so.

In other law school related news from China, U.S. law grads may eventually get some competition from China, if the Peking University’s School of Transnational Law succeeds in its plan of becoming the first non-American school to be accredited by the ABA.

-Susan

How California, Bermuda, and Hogonas Are Undermining the International Legal Order

Via Legal Theory, a cool if short article on the implications of sub-state activity in the international realm, Sovereignty, Territory and Fluidity: Lessons from Hoganas.

The modern conception of statehood, with its neat division of sovereign territories along recognized and inviolable boundaries, seems sometimes to be the inevitable geopolitical structure of the world, but it is of course a relatively modern invention — sovereignty, as we recognize it today, only emerged in the past two or three centuries. There is no reason to assume it will be the perpetual condition. Probably the most frequently discussed threat to sovereignty is the emergence of supra-state entities such as a “world government,” or at least a “continental government” in the style of the European Union. A second, lesser, challenge to the state model is the uncertain status of non-governmental non-state entities, such as the Red Cross.

But often overlooked is the role of sub-state entities in undermining sovereignty. Not only are top-down systems changing the nature of international law, but so are new bottom-up patterns of behavior emerging from domestically-recognized internal sub-sovereign entities.

A high profile example of this occurred recently, with Bermuda’s resettlement of ex-Guantanamo detainees.

At the time of the Uighur transfer, the government of the United Kingdom launched public protests because neither the government of Bermuda nor the government of the United States discussed the potential transfer with it at any point prior to the actual transfer of the Uighurs. The diplomatic intricacies of the relationship between these states are beyond the scope of this paper. However, this example is important to the paper’s overall discussion of states and sub-states in that it involves an outside state – and a powerful ally of the United Kingdom at that – recognizing that a sub-state could enter into an agreement which was in direct violation of the explicit laws of the sub-state and the state of which it is a part. Further, it illustrates an instance in which a sub-state derogated from accepted law and practice in order to insert itself into an issue for which the larger state has an accepted stance and acted in contravention of the larger state’s policy in the realm of security and international relations

Under “pure” international law, the only recognizable entities are states. Sub-states — let alone individual people — are simply non-existent on the international plane. But in the U.S., individual states, not the federal government, form the bulk of the vanguard for international environmental law developments.

[M]any individual states – including powerful states such as California and New York – have thwarted these [U.S.] policies and grouped together to engage in carbon capping and trading on a regional level. Additionally, the State of California has entered into climate change related agreements with Canadian provinces and outside states, such as Brazil and China, although the United States government has not done so.

Finally, in Sweden, the town of Hogonas in bringing into sharp relief some of the complications to the sovereignty model caused by the European Union. Although by domestic law, Sweden’s Riskbank is the only entity that can declare what will be accepted as legal tender, the southern tourist town of Hogonas has simply announced and put into effect a plan for local merchants to accept Euros as well as krona. In fact, this is not merely a violation of domestic law — even under international instruments, it is unambiguously clear that such fiscal decisions are to be made at the national level.

[I]f the Swedish government had acted to stop Hoganas’ acceptance of the euro, this paper would have an entirely different discussion. However, Hoganas’ actions in defying the stance of the Swedish government regarding the euro, as well as the layers of statutory and constitutional laws which established the state as the ruling authority in matters of monetary policy, finance, and international and EU relations were not stopped or counteracted by the Swedish authorities. The mayor and merchants of Hoganas openly announced that they would be accepting the euro as of January 1, 2009, and no national efforts were made to stop them, although it was accepted that such actions were in contravention of Swedish governmental and popular policy regarding the use of the euro and the retention of the krona.

Taken together, these examples suggest that international law is becoming the site of fluidity in the relationship between sovereignty and territory. Certainly, the classic understanding of the fixed nature of sovereignty and territory continues to exist in international law, perhaps most obviously when a portion of a state’s sovereign territory is threatened or attacked by another state or group of actors. Yet outside of such extreme examples, fluidity does exist and international law is increasingly impacted by it.

-Susan

Federal Jobs: A Picture Is Worth a Thousand Words

Here is a screen capture from the application page for a federal job I applied to today.

I presume this is intended as a test of applicants’ ability to control a mouse. On the plus side, I am pretty sure I qualified for the job. On the downside, all of the elephants and chimpanzees at the D.C. zoo qualified too, as well as half of the pandas.

-Susan

Security Measure Mishaps In Israel, the UK, and Denmark

Ever since the failed execution of the the Great Christmas Underwear Bombing, the blogosphere and print media have been abuzz with snarky criticisms of the new haphazard security measures enacted in response. My favorite comes from here:

I had a fantasy in which the Fed and the TSA (Transportation Security Administration) switched roles.

If a bank failed at 9 a.m. one morning and shut its doors, the TSA would announce that all banks henceforth begin their business day at 10 a.m.

And, if a terrorist managed to get on board a plane between Stockholm and Washington, the Fed would increase the number of flights between the cities.

But the U.S. isn’t the only one to be having some security missteps. In Israel, there are reports claiming that the military has developed a security program that involves training dogs to attack anyone who says “Allah hu akbar”, or Arabic for “God is great.”

Israeli Arab MK Ahmed Tibi on Monday told the Knesset plenum that at a canine unit ceremony held the day before, parents of the soldiers witnessed demonstrations proving these allegations.

“IDF dogs are trained to pounce and attack any Arab who shouts ‘Allah hu akbar,’ as a Pavlovian reaction,” said Tibi.

The IDF has denied any such training program is in place, and the denial is pretty believable given how ridiculously ineffective such a plan would be. The stated purpose of the training program is to have dogs who will attack suicide bombers who announce “Allah hu akbar” immediately before detonating explosives — but unless the K-9 force is staffed entirely by a bunch of Rin Tin Tins and Lassies, pretty much no dog is going to be able to reach a terrorist and neutralize them before they have the ability to press a button.

Over in the UK, government officials have hit a stumbling block in the implementation of their latest security technology, as the full-body scanners at airport check points violate child pornography laws:

The rapid introduction of full body scanners at British airports threatens to breach child protection laws which ban the creation of indecent images of children, the Guardian has learned.

Privacy campaigners claim the images created by the machines are so graphic they amount to “virtual strip-searching” and have called for safeguards to protect the privacy of passengers involved.

Ministers now face having to exempt under 18s from the scans or face the delays of introducing new legislation to ensure airport security staff do not commit offences under child pornography laws.

Finally, over in Denmark, Kurt Westergaard showed that “panic rooms” are not merely impractical Hollywood-style gizmos, but can actually be effectively employed to protect yourself during home invasions. Of course, the recommended use for panic rooms probably includes keeping your five year old granddaughter on the same side as the panic room wall as yourself, and not outside with the attacker:

He did not have time to collect the child from the living room before locking himself into a “panic room”, a specially fortified bathroom. He said the assailant had shouted “swear words, really crude words” and shrieked about “blood” and “revenge”, as he smashed the axe in vain against the bathroom door.

“I feared for my grandchild,” he told Jyllands-Posten, the newspaper that had commissioned the cartoon. “But she did great. I knew that he wouldn’t do anything to her.” He went on: “It was close, really close. But we did it.”

-Susan

Despite the Suggestions of Financial Lobbying Groups, the Jurisdictional Basis of the Derivates Bill Is Not Particularly Questionable

Initially I thought this article, Derivatives bill could have international impact, might be interesting, because I’ve sort of been following the international jurisdictional issues that have popped up in the wake of the financial crisis. And that is what it pretends to be about:

Proposed legislation to regulate the $450 trillion privately-traded derivatives markets in the U.S. may allow regulators in the country to extend influence beyond their own borders, by setting capital levels for international banks in their home countries.

But the story is all smoke and no fire. “Extending influence beyond borders” is not, without something more to it, in violation of any principle of international law. So what exactly is the potentially improper legislative act that ‘industry groups’ are complaining about?

Some of the regulatory bills being proposed in the United States, however, have raised concerns among international banks they could allow U.S. regulators to impose capital requirements on European banks that operate in the country, on top of rules planned for the continent.

“The potential extra-territorial effect of this legislation has been an industry concern,” said Paul Forrester, partner at law firm Mayer Brown in Chicago.

International banks and industry groups want terms to be included in the legislation that would exempt overseas banks that are subject to comparable capital requirements in their home jurisdictions from also needing to meet U.S. rules.

So the complaint is, essentially, that “banks that operate overseas and also operate in the U.S. should not have to comply with U.S. rules because they also operate abroad.” Not very compelling stuff. U.S. banks also operate in the U.S. and abroad, and I am not sure if there are any proposals to give U.S.-based banks a break from European derivatives regulations.

There is no international legal objection for the derivatives bill’s planned regulation of foreign corporations that operate in the United States. The existence of prescriptive jurisdiction to regulate foreigners who are located on your territory and doing business is pretty straight forward, and as far as I’m aware, there is no true conflict alleged that would cause any domestic legal problems under Hartford Fire. And as far as policy goes, a regime in which corporations are regulated only by their nationality is not more coherent or desirable than a regime in which corporations are regulated by the laws of the state where they operate. To be overly simplistic about it, the former has a much greater risk of misallocating externalities than does the latter, as if a state’s laws are too restrictive or if they cause to much interference with transnational business operations, business will simply stay elsewhere.

-Susan