Yearly Archives: 2010

North Korea’s Response to the Security Council Statement on the Attack of the Cheonan: A Glimpse Into Crazyville

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Last week, the UN Security Council released a bland and sanitized statement ‘condemning’ the attack on the Cheonan. The statement says in part,

“The Security Council deplores the loss of life and injuries and expresses its deep sympathy and condolences to the victims and their families and to the people and Government of the Republic of Korea, and calls for appropriate and peaceful measures to be taken against those responsible for the incident aimed at the peaceful settlement of the issue in accordance with the United Nations Charter and all other relevant provisions of international law.

“In view of the findings of the Joint Civilian-Military Investigation Group led by the Republic of Korea with the participation of five nations, which concluded that the Democratic People’s Republic of Korea was responsible for sinking the Cheonan, the Security Council expresses its deep concern.

“The Security Council takes note of the responses from other relevant parties, including from the Democratic People’s Republic of Korea, which has stated that it had nothing to do with the incident.”

The statement goes on to praise South Korea’s restraint and to encourage settlement of the dispute by pacific means.

Translation of the UN Statement: Everyone on earth knows that North Korea is guilty as hell, and that South Korea was the victim of an unprovoked missile attack. But, because China and Russia do not want any possibility of kinetic conflict breaking out, the only action the Security Council had available was to release a toothless condemnation that, although it acknowledges the truth in a circumspect way, precludes any possibility of more overt Security Council involvement.

As seen by North Korea’s recent propaganda posters, North Korea is not particularly reluctant to acknowledge, in an equally circumspect fashion, that of course it blew up the Cheonan, and it is not afraid to do it again.

But North Korea’s press release in response to the Security Council’s statement is dazzling it terms of its hyperbole and self-deception:

Pyongyang, July 13 (KCNA) — The U.S. and the south Korean puppet authorities tried to save their lost faces even a bit, uttering that they feel disappointment with the presidential statement of the UN Security Council concerning the “Cheonan” case but there was what they called “success” at least.

World media, however, consider the presidential statement as a total fiasco for them.

No wonder, media put it that the south Korean authorities’ original plan to wrest “apology and compensation” from the DPRK by prodding the UNSC into adopting a “resolution” of legal binding force went up in smoke, terming the presidential statement an absurd and toothless one.

A particular mention should be made of the fact that media are jeering at the U.S. and south Korea, saying: The fact that the presidential statement took note of the DPRK’s stand that it has nothing to do with the case of “Cheonan’s” sinking now that the “chief culprit” of the case has not yet been probed means, in the final analysis, that the UNSC does not view the case as “something done by north Korea”, and the U.S. and south Korea raised a hue and cry over the case but it ended in the publication of a very ambiguous presidential statement that seems to defend north Korea.

This is a natural outcome based on the objective reality in which the international community terms the U.S. and the south Korean authorities’ “Cheonan” diplomacy a fiasco.

A scrutiny into the presidential statement proved that the DPRK was right when it asserted that the case is an issue to be settled between the north and the south, not an issue to be referred to the UNSC in view of its nature.

By nature the UNSC has to perform the function of handling any incident posing “threat to international peace and stability” and finding out its culprit and “punishing” him.

However, the presidential statement not only took a deformed attitude of condemning the recent case itself without singling out the author of it but also called upon the parties concerned to settle the case peacefully through their direct dialogue after considering it as a regional affair.

This amounted to the UNSC’s affirmation of the DPRK’s stand that the “Cheonan” case is not a matter to be dealt with at the UN forum as asserted by the United States and the south Korean authorities, but a matter to be settled by the north and the south of Korea.

Such being the case, the U.S. and the south Korean authorities are misinterpreting the presidential statement in favor of them, adding something to it as they please in a bid to save their face even a bit. But such behavior will only reveal how poor their position is.

Every sin brings its punishment with it and one bereft of any reason would talk much.

Though the U.S. and the south Korean authorities are talking a lot like a thief afraid of his own shadow, they can neither cover up the truth behind the “Cheonan” case nor hide up their despicable true colors.

In keeping with the presidential statement saying that “the Security Council encourages the settlement of outstanding issues on the Korean Peninsula by peaceful means to resume direct dialogue and negotiation through appropriate channels,” the DPRK will do its utmost to probe the truth about the case to the last and achieve peace, stability and denuclearization of the peninsula.

The failure to capitalize “north” and “south” is deliberate, owing to the DPRK’s failure to acknowledge the existence of two countries.

Parts of it read like it was lifted from a particularly obscure fortune cookie: “Every sin brings its punishment with it and one bereft of any reason would talk much”; “talking a lot like a thief afraid of his own shadow”; “This is a natural outcome based on the objective reality”. Although it gets points for colorful imagery, North Korea comes across sounding far too much like Baghdad Bob for the statement to be taken seriously by anyone.

It is clear that North Korea could stand to learn a thing or two about diplomatic spin from the United States.

-Susan

The Eastern District of Virginia and Aesop’s Fables

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Every time I go to the district court in Alexandria, I am struck by the relief carved just above the front entrance to the building. I was hoping to find a picture online, but there does not appear to be one. I would snap one with my camera, but, of course, no cameras or photography are allowed near the courthouse. So this tiny image here will have to do — the dark band just above the door in the center is where it is. At the top, it reads in large letters,

JUSTICE
DELAYED
IS
JUSTICE
DENIED

Below the lettering, there is a carving of a hare dashing across the top of the doorway, while just below the hare there is a stodgy tortoise, jutting out from the very middle. The carving is actually rather well done — I like the tortoise, he’s a cool looking little dude. But while aesthetically I appreciate the relief, the intended symbolism behind it continues to mystify me.

The United States District Court for the Eastern District of Virginia is known as the “rocket docket,” due to the speedy nature of the proceedings brought before it. As of 2008, EDVA had the shortest median time from civil filing to trial of all the 94 U.S. district courts. In that respect, the “Justice delayed is justice denied” quote is an appropriate one to have above the courthouse door.

But I can’t help but wonder who was the mastermind that thought the tortoise and the hare motif would be appropriate. I’m assuming that, in the relief, the EDVA is represented by the hare. But, as pretty much any kid could tell you, the speedy hare lost his infamous race against the tortoise. In the end, slow and steady trumped a rapid-fire rush out the gate.

So… Is the relief trying to say that the Rocket Docket’s speedy trial schedules may be flashier and appear to be more efficient, but in the race for justice, a more methodical and procedurally-focused approach reaches the finish line first? Because that’s how I interpret it.

Of course, maybe the Alexandria courthouse has the more correct interpretation of the fable after all, at least from a classical perspective. Wikipedia has this to say about the story of the Tortoise and the Hare:

As in several other fables by Aesop, there is a moral ambiguity about the lesson it is teaching. Later interpreters have asserted that it is the proverbial ‘the more haste, the worse speed’ (Samuel Croxall) or have misapplied to it the Biblical observation that ‘the race is not to the swift’ (Ecclesiastes 9.11). In Classical times it was not the Tortoise’s plucky conduct in taking on a bully that was emphasised but the Hare’s foolish over-confidence. He really is the better endowed and, knowing this, should not have allowed himself to take up the tortoise’s foolish challenge. From that point of view, those asserting that the story’s lesson is that ‘slow but steady wins the race’ (Townsend) are dangerously wrong, a point that has not been lost on the modern business community.

Perhaps, then, a more proper interpretation of the sculpture is this: continuances and extensive discovery are like naps, and the EDVA, as the hare, has learned his lesson. Accordingly, no more napping is allowed. And your request for a continuance is denied.

-Susan

The Taliban’s Monkey Freedom Fighters

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A breaking news story, brought to you by People’s Daily: Monkeys trained as battlefield killers in Afghanistan.

Afghanistan’s Taliban insurgents are training monkeys to use weapons to attack American troops, according to a recent report by a British-based media agency.

Reporters from the media agency spotted and took photos of a few “monkey soldiers” holding AK-47 rifles and Bren light machine guns in the Waziristan tribal region near the border between Pakistan and Afghanistan. The report and photos have been widely spread by media agencies and Web sites across the world.

According to the report, American military experts call them “monkey terrorists.”

So we’ve got an unnamed ‘British-based media agency,’ an equally unnamed ‘experts,’ as well as a mysterious lack of images depicting these monkey shock troops. The article also left a number of other deeply important questions unanswered — such as, for instance, what variety of monkey the Taliban is using. Inquiring minds want to know.

The only primate in Afghanistan other than humans is the rhesus macaque, but Waziristan is in Pakistan, not Afghanistan, so perhaps the source of the monkeys is a bit farther east. If we’re going to include Pakistan as a possible sources for armed monkey terrorists, we can add gray langurs to the list, but for a variety of reasons the Rhesus is a far superior species from which to recruit monkey guerrilla troops. And, as you can see from the adorable photo below, rhesus macaques are already embedded among troops stationed in Afghanistan.

“A monkey rides on the back of a U.S. Army soldier October 23, 2008 at combat outpost Dallas in the Kunar Province of eastern Afghanistan. The monkey went along as a temporary mascot with soldiers who were switching out with comrades who had been in the remote outpost for a week. (John Moore/Getty Images)”

Judging from this photo, I conclude that People’s Daily got the story entirely wrong. Armed monkeys are indeed playing a significant role in the conflict in Afghanistan, but it is the U.S. rather than the Taliban that is responsible for recruiting monkey warriors.

Despite this, People’s Daily — a Chinese media outlet — is falsely alleging that the monkeys are terrorists, in order to weaken the morale of American troops.

In a sense, the emergence of “monkey soldiers” is the result of asymmetrical warfare. The United States launched the war in Afghanistan using the world’s most advanced weapons such as highly-intelligent robots to detect bombs on roadsides and unmanned aerial vehicles to attack major Taliban targets. In response, the Taliban forces have tried any possible means and figured out a method to train monkeys as “replacement killers” against American troops.

Analysts believe that apart from using “monkey killers” to attack the American troops, the Taliban also sought to arouse Western animal protectionists to pressure their governments to withdraw troops from Afghanistan.

Although I have conclusively shown that the monkey soldiers are in fact part of the American military, the mysterious “analysts” quoted by People’s Daily must believe that the Taliban are a fiendishly clever foe. While we have been at war in Afghanistan for nearly a decade, once PETA gets involved in the anti-war effort, America will be forced to withdraw from the conflict in a matter of weeks.

-Susan

Update (from Michael): The Dallas Blog provides some historical context for the Taliban monkey fighters: “If President Barack Obama withdraws from the war in Afghanistan, he would be the first commander-in-chief in American history to surrender to an army of monkeys.”

Update #2: A video of a Chinese newscast on the Monkey soldiers has now been released.

That is some pretty epic CGI’ing, there. Unfortunately the CGI primates appear to be chimpanzees, which it is pretty much impossible for the Taliban to have acquired. Although the pictures depict rhesus macaques, so at least they got that right,

Drunk Australian Tossed Out of Pub, Goes to Ride 16-foot Crocodile, Then Returns to Pub

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The title says it all, really. A man in Western Australia decided that, although he was too drunk to be allowed to stay in a bar, he was in fine condition to go hop a fence at a wildlife park and try to ride on a saltwater crocodile. Although injured, he survived:

He received surgery to serious wounds to his leg and is recovering in hospital, police say.

He had been chucked out of a pub in the town of Broome for being too drunk.

The man, who was not named by the police, climbed over a fence and tried to sit on the 800kg (1,800lb) saltwater crocodile.

“Fatso has taken offence to this and has spun around and bit this man on the right leg,” Sgt Roger Haynes of Broome police told journalists.

“The crocodile has let him go and he’s been able to scale the fence again and leave the wildlife park.” …

[Said the park’s owner,] “If it had been warmer and Fatso was more alert, we would have been dealing with a fatality.”

Then again, it appears from the story there are no actual witnesses to this feat — the man just disappeared from the pub, and then came back a little while later after some creature had taken a couple chunks out of his leg. I wonder how they’re so sure about which crocodile it was that the guy apparently mistook for a rodeo pony. Unless there is some further proof that it was actually Fatso, I’m wonder a bit if the bites, in reality, did not come from one of the park’s full-grown salties, but rather were inflicted by something much smaller.

After all, if you were stupid enough to drunkenly climb into a cage with a baby crocodile or an aggressive monitor, and got bitten by it, wouldn’t you later try to claim that you’d taken on the biggest, baddest croc possible? I know I would.

-Susan

The International Law Scholarship of Samuel Clemens

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Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.

-Susan

Sad Keanu is Sad Because of Splash News’s Copyright Abuses

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As internet memes go, Sad Keanu has been a relatively successful one. It surged onto the scene scarcely a month ago, on June 3rd, 2010, when the original poster put up the image with a caption that read: “I really enjoy acting… Because when I act, I’m not longer me.” Thanks to the mysterious forces that run the internet, the photo became destined for memedom, and rapidly gained in popularity, spawning websites, a charity called “Cheer Up Keanu,” and hundreds upon hundreds of photoshopped Sad Keanu images.

Unfortunately, two weeks later, the holder of the copyright on the photo, Splash News, decided that it had the right to put an end to the meme. They sent out a cease & desist letter to some of the meme’s promoters, and insisted that all Sad Keanu pictures be taken down. (Yeah, good luck with that, Splash.)

Hey Everyone,

Splash News has decided to keep their DMCA in place, as well as Tumblr, which means we may not publish any more of your awesome submissions and we must start to take down all of our previous 270+ posts. In addition, this blog will most likely be deleted in the next 48 hours by Tumblr because of the DMCA.

Although we do believe that it can fall under “fair use”, both myself and my partner don’t have any time or resources to fight it.

Thanks to everyone that helped out making this meme the most awesome one on the internet.

Cheers,
Dan

Because of the baseless takedown notice, sadkeanu.com was forced to take down all its Sad Keanu images, except for Sad Keanu images that have been so altered from the original image that the original photo is no longer present in a photorealistic state. (Legally, this is somewhat pointless; just because you use a Matrix-filter on the photo does not automatically make the photo un-infringing. But it seems to have satisfied Splash News, at any rate.)

The attempt to end the Sad Keanu meme through the use of a Digital Millennium Copyright Act takedown notice is wrong both from a legal perspective and from a normative one. Legally, the Sad Keanu meme is almost certainly not an unlawful infringement, as the meme is itself a parody of an unintentionally hilarious image, and, for that and various other reasons, is within the fair use exception. However, as the sadkeanu.com owners recognize, trying to fight off a baseless cease and desist letter is often far more daunting of a task than a party can feasibly attempt, and even if (when) the receive of the notice wins the case, their actual costs are still far greater than they would have been had they simply complied. So the owners of sadkeanu.com decided, as most people in this situations do, to comply with the extortion.

So even though the copyright holder has no valid legal right to order the take down of Sad Keanu, given Splash’s greater sophistication and resources, in actual practice, it is able to exercise a power over the copyrighted image that is massively broader in scope than is the actual legal right that they possess under copyright law.

Ignoring the strict merits of their case, however, Splash’s attempts to control the behavior of millions of people around the world, by preventing them from making or seeing Sad Keanus, is a perversion of copyright law. Sadly, copyright in the internet era is far too often used to stifle creativity, and to prevent the growth of user-created content. Allowing Splash Media to exercise their copyright power to end Sad Keanu does not serve a single policy interest of the United States, or the Copyright Act. None of the benefits provided by IP rights is served by this. Clearly, the total national production of paparazzi images will not be adversely affected if they are denied the ability to eliminate memes based on their photographs.

Moreover, absent the creation and perpetuation of the Sad Keanu meme, Splash News would have either no means or else very limited means of profiting from this image, once its initial run in the gossip magazines is complete. The Sad Keanu meme is not attempting to wrongfully exploit a value created by the copyright owner — rather, the Sad Keanu photo’s only source of value is the meme’s existence. In other words, if the “infringement” of the photo didn’t exist, the photo would be worthless. And if the “infringers” of the photo had been forced to pay for their use of the photo from the beginning, the meme would simply have never come to exist in the first place; people probably would’ve just gone and made some more lolcats instead.

But because the photo is now arguably famous — 99% of the credit for which can be given to the meme promoters and participants, and, at most, 1% to the copyright holder — the photo does conceivably hold some “value”, or at least it suggests there is a market for it out there, somewhere. How exactly to convert that value into a monetary return is a task to be addressed by the creative business savvy of the copyright owner — but one way that is guaranteed to not result in any profits for the owner is in sending draconian cease-and-desists to the very people who gave your product value in the first place.

This actually goes back the “fair use” factors under the Copyright Act, the last of which is the “effect of the use upon the potential market for or value of the copyrighted work.” In this case, the use of the Sad Keanu image to promote the meme actually created the potential market for the image and is responsible for the picture having a non-zero value. The takedown notice was little more than blackmail, and I hope that those who wish to parody the Sad Keanu image continue to do so, regardless of any litigation threats made my Splash Media.

-Susan

p.s. Note to Splash News: if you want to sue me for use of the Sad Keanu image above, please go ahead. I think it’d be fun

There Is No Such Thing As a Legal Progressive

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At the Kagan confirmation hearings today, Senator Sessions (R-AL) had some tetchy back and forth with the Supreme Court nominee. One of the questions that has been getting a lot of coverage in the media and blogosphere, however, was when Sessions asked Kagan if she was a “legal progressive.”

A what? Legal progressive? What the heck is that?

Is it… a progressive who does law? In which case, of course Kagan is one. But that can’t have been what the term was meant to imply — a phrase like “legal progressive” suggests some sort of theory of jurisprudence, not merely a description of a progressive who happens to have a JD.

When I heard Sessions use the phrase, I blinked a couple times. Which I’m sure Kagan was probably doing, too. And then I tried to figure out what on earth he was talking about.

Legal positivist, legal realist, legal pragmatist, legal formalist, natural law theorist, critical legal studies theorist, legal hermeneutics — I’m pretty familiar with all those, and I could probably rattle off a few more “legal X-isms” if I spent some more time thinking about it. But “legal progressive” I’ve never before come across. So I was sort of relieved when Kagan acknowledged that she hadn’t a clue what it meant, either.

Google seems to agree with me and Kagan. A search for the term does not reveal any web page using the phrase that is not actually in reference to Kagan’s nomination, or else refers to something entirely unrelated. I’ve now clicked through 12 pages of Google results for “legal progressive,” and I cannot find even one that suggests such a pre-Kagan judicial philosophy has ever existed.

In response to Kagan’s semi-confused queries about what he meant, Sessions responded, “Well, it means something, and I would have to classify you as someone in the theme of a legal progressive.” One would think that if the term really meant ‘something,’ and if Sessions knew what this ‘something’ was, he would’ve elaborated. But regardless of what Sessions’ personal understanding of the term is, I am relatively certain that if “legal progressive” had a pre-Kagan meaning, it would have turned up within the top 10 pages of Google results.

Even those using this exchange as proof that Kagan is being deliberately obtuse at best, and a blatant liar at worst, can offer no proof that the term has any academic significance. The original source of the term appears to be Joe Biden’s Chief of Staff, who stated, “Elena is clearly a legal progressive… She’s got a pragmatic perspective.” As best I can tell, the VP Chief of Staff coined the term on the spot, or else was confusing it with Posner-style legal pragmaticism. (In which case, if Kagan truly is one, by all means, hurry up and confirm her!)

But no one has been able to step forward and offer a definition for the jurisprudence of legal progressivism.

Mostly because, well, it doesn’t exist. There is no more a judicial philosophy known as “legal progressivism” than there is one called “legal regressivism.” Kagan was right not to answer the question, because any answer she could’ve given would’ve been factually wrong — someone cannot be a follower or non-follower of a judicial philosophy that has yet to be created.

Hollow and vapid, indeed.

-Susan

North Koreans Watch World Cup Live, Results Were Less Promising Than Expected

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Ouch. Kim Jong-il must be regretting his decision to allow the first live showing of a North Korean soccer match for the national team’s game today against Portugal.

After the Chollima’s rather impressive 2-1 loss to #1 ranked Brazil, and after receiving a lot of praise from startled soccer fans worldwide, the North Korean government must have decided it was safe to allow the game to air in North Korea, un-filtered by the state. Most games, including the match against Brazil last week, are only shown a day or two later, after being safely sanitized for the public’s consumption.

I was only able to watch the first half of the game, after which score stood at a 1-0 lead for Portugal. That was still an impressive result for the Koreans, who were massively outmatched. I was shocked to see the final score sometime later, however: 7-0, for Portugal. Apparently, after I looked away, the game turned into a massive slaughter.

If I had to guess, sometime after the third or fourth goal, the live feed being broadcast to the DPRK got cut. Or I sort of hope it was, anyway. By all accounts, it was an exceedingly painful second half to watch, at least for anyone not from Portugal — and I can only imagine how much worse the reaction was in Pyongyang.

-Susan

The Japanese Prostitutes-for-Whaleburgers Programme

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Tomorrow, the International Whaling Commission meets for the beginning of its 5-day conference in Agadir, Morocco. The annual conference will be of particular importance this year, due to Australia’s decision to move ahead with its claims before the ICJ against Japan, based upon the latter’s whaling activities.

Although there has been a moratorium on whaling since 1986, Japan (as well as Iceland and Norway) have continued whaling under the “research exception” of the Convention for the Regulation of Whaling.

Article VIII, section 1 of the Convention provides as follows:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.

So it’s not clear cut who has got the better side of the argument, here. “Scientific research” is not defined elsewhere in the Convention, and, if this case does make it up to the ICJ, the Court will have a fairly complex question of treaty interpretation to grapple with.

Japan is, currently, hunting whales for what can fairly be characterized as commercial purposes. However, Japan is also using the whales it kills to conduct research, through its Institute of Cetacean Research. Although debate continues about the necessity of using lethal methods for whale research, it would not be accurate to characterize Japan’s whale research programs as merely a front for the commercial operations — the research on the whale populations is genuine.

On the other hand, the principle of good faith in treaty interpretation would seem to prevent construing the Convention to allow the “research” exception to encompass any sort of whale harvesting that also incidentally includes a research component. The ICJ will have a difficult task before them, in determining whether or not the Japanese research whaling fleet is authorized as a matter of law.

But if the judicial process does not go Japan’s way, there’s always the political method. And, if things go the way the pro-whaling nations hope, the upcoming IWC conference in Morocco could ultimately lift the whaling moratorium, rendering Australia’s claims moot.

I’ve talked before on this blog about Nauru’s practice of selling its recognition power. China and Abkhazia both essentially purchased Nauru’s recognition of their statehood, through the use of foreign aid. A similar situation has now developed with regards to the IWC, and Japan is engaging in very direct forms of diplomacy in order to secure more votes for the pro-whaling coalition.

Currently, 88 states are parties to the Convention, and any state that wishes to join may do so. Most of these countries, however, are not themselves whaling states, nor do any whales live in their jurisdictions. Eight of member states are actually landlocked territories. For countries that have no strong interest in whales or whaling, the decision of whether to prohibit or allow whaling on international waters is a decision controlled less by State preference, and more upon which option will garner them the most diplomatic favor. As a result, the vote-buying has been pretty blatant.

The Caribbean states all largely vote along with Japan on whaling issues, and receive large amounts of aid from Japan in return. The Pacific is more divided, as some of the countries there have been wooed by Japan, while others have been bought out by Australia and New Zealand. The Marshall Islands and Kiribati are among those Pacific Island states who receive aid from Japan and vote with the pro-whaling bloc in return.

What is interesting about Japan’s purchasing of pro-whaling votes, however, is the form of compensation offered. Although some of the compensation consists of fairly standard foreign aid packages, or the paying of smaller states’ IWC fees, or covering the travel costs for their diplomats to attend the IWC conference, some of Japan’s tactics are more questionable.

Other forms of compensation include providing prostitutes to foreign diplomats, giving government officials generous “discretionary expenses funds” for their visits to Japan or IWC conferences, and providing diplomats with lavish vacations. Although generally I disagree with those who characterize this sort of compensation-based diplomacy as a form of “bribery,” in this case, the label does seem to fit.

Japan’s justification for this particular brand of diplomacy is that the IWC is abusing its mission by failing to have adequate membership requirements. Some Japanese politicians go as far as to argue that only pro-whaling nations should be permitted to join the IWC, because the goal of the IWC is to regulate the harvesting of whales — and countries that do not harvest any do not have any legitimate interest in setting that number.

They do have something of a point. The object and purpose of the Whaling Convention clearly indicates an intention to protect whale stocks in order to create a sustainable global whaling industry. The purpose of the IWC was not to work towards the complete elimination of whaling, but rather to ensure the preservation of the earth’s whale resources so that commercial harvesting could continue — and by allowing in any country that wants to join, the IWC is letting states with no economic or territorial interest in whales to exert control over states like Japan.

But the prevalence of schemes through which smaller states sell out there international-law-making-power in exchange for cash poses something of a long term dilemma for customary international law. CIL is developed through a combination of state action and opinio juris, but for international legal issues in which “state action” is only conducted by a bare handful of states — such as with whaling — or where there state action consists of a nebulous act of “recognition”, having opinio juris be determined by who’s writing the biggest checks undermines the credibility of the whole process.

-Susan

Armor for the Medieval Kitten

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This weekend, I spent far too much time sacked out in the living room watching the World Cup. While the games were going on, though, I decided that my kitten almost-cat deserved to have a shiny suit of armor.

Every cat should own a set of sturdy armor, of course. It provides valuable protection for the spine and flanks when an inevitable battle breaks out with the dreaded Forces of Dog. And so I made a chainmail suit for Ragnarok, my faithful feline companion.

The armor didn’t take as long as expected — I finished up even before Germany vs. Australia came on. (I cheated and used a really really large ring size. That helped.)

Not too surprisingly, Ragnarok was slightly less-than-thrilled about having his own armor to wear. But he is a very brave kitten, and although he looks at me with very sad eyes when I put the chainmail on him, he wears it with a stoic grace. And by “stoic grace,” I mean, “occasionally and unexpectedly falls off chairs because the weight throws off his center of gravity.”

Sir Kitten boldly surveys his domain.

And because my co-blogger might just murder me if I dare post more than one gratuitous kitten picture outside of a cut, click below to see more of the Adventures of Brave Sir Kitten: Continue reading →