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Professor Mark Nevitt: Climate Change—A Threat to International Peace & Security?

Climate Change: A Threat to International Peace & Security?

By Professor Mark P. Nevitt

(Opinio Juris | Aug. 29, 2020) Is the climate-security century upon us?  If so, what are the implications for international legal governance and institutions?  In his recent Opinio Juris essay, based on his provocative and meticulously researched article, Atmospheric InterventionProfessor Martin argues that the climate change crisis may well exert pressure for change on the governing jus ad bellum regime.  

“In a forthcoming law review article, I argue that climate change will force us to look at international institutions and governance structures with fresh eyes as we struggle to prevent climate-exacerbated conflict.”

Climate Change: A Destabilizing Physical and Legal Force

I am persuaded by Prof. Martin’s argument that the climate change crisis is likely to impact the international collective security system.  While his focus was on the jus ad bellum regime, he briefly discusses the role of the UN Security Council and other institutional structures.   My own work has focused on how the crisis will implicate the international institutions and governance structures that oversee the entire collective security system, particularly the UN Security Council.

In a forthcoming law review article, I argue that climate change will force us to look at international institutions and governance structures with fresh eyes as we struggle to prevent climate-exacerbated conflict and save island nations from possible climate-driven extinction.  In turn, the UN Security Council can and should play a substantive role in addressing the multi-faceted challenges that we face in our “climate security century.” 

Climate change demands both innovative governance solutions and a legal entrepreneurship mindset—using existing tools in new ways.   After all, climate change is an aptly named “super-wicked” problem—no one technological innovation or legal agreement is likely to solve it by itself.  As climate change’s risks are felt—not to mention the risk of “green swan” climate events that transcend any one risk model—we must proactively expand the climate governance aperture.  Call it the “all hands-on deck” approach to international climate governance.  In what follows, I acknowledge both the challenges to UN Security Council action on climate, while arguing that the Council should take three concrete steps to meet the climate security challenges …

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Professor Mark Nevitt: Climate Adaptation—How Do We “Manage” Managed Retreat?

Climate change will increasingly require both homeowners and policymakers to accept the sobering reality that we must move away from our most vulnerable communities.

“But rather than seeing retreat as a failure, we must reconceptualize climate change—driven managed retreat for what it presents: a sensible, albeit difficult option that offers fresh opportunities.”

Introduction

During my 20 years in the U.S. military, any mention of the word “retreat” would initially be met with furrowed brows, heavy sighs, and consternation. After all, retreat conjures negative images of defeat and loss to the enemy. Similarly, climate change is an overpowering “enemy” force that threatens coastal communities.

Climate change will increasingly require both homeowners and policymakers to accept the sobering reality that we must move away from our most vulnerable communities. This will require difficult, heart-wrenching, climate adaptation decisions.

Retreat is an emotionally fraught choice, but often the best option. By one estimate, building sea walls for coastal communities will cost U.S. taxpayers in excess of $400 billion—we simply cannot “accommodate our way” out of climate change.

But rather than seeing retreat as a failure, we must reconceptualize climate change—driven managed retreat for what it presents: a sensible, albeit difficult option that offers fresh opportunities. It represents a mature evolution and acknowledgement of climate change’s true costs, risks, and threats (Siders 2019). But how do we “manage” managed retreat? And what are the legal barriers in doing so?

We are entering the climate–security century as climate change massively destabilizes the physical environment (Nevitt 2015). To meet this physical destabilization, existing laws, regulations, and policies—all designed for a more stable environment—are similarly ripe for destabilization. As we better understand climate change’s “super-wicked” effects, federal, state, and local governments must look with fresh eyes at the full menu of climate adaptation policies and regulatory tools at our disposal (Lazarus 2009) …

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Professor William C. Banks to Participate in “Law and Logics of Attribution” Conference

Professor Emeritus William C. Banks will be among the presenters at the University of Georgia School of Law conference on “The Law and Logics of Attribution: Constructing the Identity and Responsibility of States and Firms.” The conference will be held online via Zoom on Sept. 11 and 18, 2020, from 1 to 5 p.m. both days.

Also sponsored by The American Society of International Law International Legal Theory Interest Group and the Dean Rusk International Law Center, the conference will ask, “When private companies perform governmental functions and governments own companies, which acts should be attributed to the state? Which should be attributed to the corporation? And whose religious beliefs, speech rights, and moral standing can those entities claim?”

In international law, scholars and practitioners struggle to attribute rights and responsibilities between state and private entities in areas as diverse as military contracting, environmental accountability, human rights, international investment, cyberespionage, and warfare. In the corporate governance realm, attributing responsibility to entities is increasingly challenging in the context of globally dispersed corporate families with intricate parent-subsidiary structures.

This conference will draw together corporate and international legal scholars, as well as thinkers outside the law, in order to consider theoretical and doctrinal approaches to attribution, potential consequences of these approaches, and whether they may reconcile the ambiguities and deficiencies that drive current debates.

 

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Professor Corri Zoli: US Intelligence Warns of Foreign Election Interference

With less than 100 days to go before the US election, US intelligence officials are warning of attempted election interference by Russia, China and Iran, according to an update from the Office of the Director of National Intelligence. Professor Corri Zoli’s research focuses on contemporary problems of warfare from an interdisciplinary social science, public policy, and law perspective, and one track of her research investigates the changing nature of the US military force structure and the challenges of asymmetric warfare for military personnel.

“Director Evanina’s message is also designed to educate Americans and all private and government entities to adopt an aware and ‘hardened’ posture.”

“Election interference from foreign actors is a common and persistent concern in the United States (as well as in other democracies),” says Zoli. “Open systems with free markets, free speech, and robust public spheres are always subject to influence operations by actors, state and non-state, with their own agendas. These influence agendas may be motivated by political and economic interests, an opportunity for peer competitors to gain an advantage or edge over the US, or they may be efforts to simply test the strength and resilience of US public democratic institutions and processes, to see how far they can exercise power and influence on an unsuspecting American public.

“The recent statement by William Evanina, at the US Office of the Director of National Intelligence Director of National Counterintelligence and Security Center, should be read as a positive, proactive posture on the part of the federal government. It indicates that US Intelligence professionals are ready and aware of these multifaceted election threats. Part of the purpose of Evanina’s message is to publicize the issue—to make ordinary Americans aware that bad actors will try to influence them through information campaigns, including on social media platforms.  

“The reach of those influence campaigns also includes cyber acts targeting election systems and infrastructure. The US is somewhat distinctive in the diversity of our election systems among municipalities and states, with multiple redundancies and post-election auditing procedures, all of which makes voter fraud less likely. There are recent cases of US based election interference by vote tampering, evident in recent prosecutions of individuals, including over 900 criminal convictions across the US of individuals attempting to change or remove votes (false registration, buying votes, misuse of absentee ballots, etc.)—but still the scope of that problem is relatively small.

“Director Evanina’s message is also designed to educate Americans and all private and government entities to adopt an aware and ‘hardened’ posture about foreign influence campaigns in social and traditional media designed to shape US voters’ perspectives and preferences by manipulating fears—about COVID-19 and the pandemic response, recent protests and riots across the nation, political division, etc.”

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Professor Corri Zoli Helps Empower Veterans at Virtual Academic Boot Camp

Professor Corri Zoli was among University faculty who, for the sixth year in a row, helped teach in the esteemed Warrior-Scholar Project (WSP), a no-cost academic boot camp for first-year student veterans. Normally held on campus to allow for a comprehensive campus experience, the program was moved online this year in light of the COVID-19 pandemic.

Hosted at 18 select institutions nationwide, WSP empowers enlisted military veterans by providing them with a skill bridge to enable a successful transition from the battlefield to the classroom, maximizes their education opportunities by making them informed consumers of education, and increases the confidence they will need to successfully complete a rigorous four-year undergraduate program.

This year’s cohort of nine included four active duty incoming students, four veterans and a reservist, all members of the US Army, US Navy or the US Marine Corps. Participants attended virtually from Hawaii, New York, North Carolina, Texas, Washington, Washington DC, Nevada, Ohio and Iowa.

The project at Syracuse University is a collaborative effort of the Office of Veteran and Military Affairs and the College of Arts and Sciences. Syracuse faculty who taught during this year’s program include, among others:

  • Corri Zoli, Associate Teaching Professor, College of Law and Maxwell School
  • Tessa Murphy, Assistant Professor, Maxwell School
  • David Bennett, Professor Emeritus, Maxwell School
  • Eileen Schell, Professor, College of Arts and Sciences
  • Genevieve García de Müeller, Assistant Professor, College of Arts and Sciences

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Chinese Hacking Indictments: Professor Corri Zoli Speaks to SCMP

US indicts Chinese hackers on charges of targeting coronavirus vaccine data and defence secrets

(South China Morning Post | July 22, 2020) The US government has indicted two Chinese nationals in connection with long-running cyber espionage operations that aimed to net information on Covid-19 vaccines, military weapons and human rights activists, in what is the second Justice Department indictment against individuals from China in recent days.

“You’re seeing more inter-agency cooperation to manage this threat.”

Li Xiaoyu, 34, and Dong Jiazhi, 33, were charged with 11 counts of conspiracy, identity theft and fraud related to operations carried out from China since 2009, some in conjunction with China’s Ministry of State Security (MSS), according to an indictment filed on July 7 with the US District Court for the Eastern District of Washington and unsealed on Tuesday …

…“This is information warfare so there’s a lot of evasion and distraction going on here,” said Corrinne Zoli, director of research at the Institute for Security Policy & Law at Syracuse University in New York. “I think the issue is not that the Chinese need more clinical data to sort out their own vaccine programmes.”

China is more likely to be “trying to probe the US response to what really is an economic and security threat that is the pandemic”, she added. “They’re trying to figure out if the response is leading to the US to be more stable or unstable, if their response is indicative of a government that resilient or a government that’s in crisis” …

… “What you’re seeing now is just an administration that’s got a more of a forward posture … you’re seeing more inter-governmental operability, you’re seeing more inter-agency cooperation to manage this threat,” said Zoli. “Any nation state that has capacity, and usually that’s any nation state with a developed military, is going to have some information warfare capacity,” including the US.

The difference, she added, is that while the US government limits cyber espionage to the countering of national security threats, China is more inclined to hack for economic and commercial secrets as well.
“That’s where I think they are in a league of their own,” she said …

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Professor Mark Nevitt: Secretary Pompeo’s Surprising Defense of International Law

Secretary Pompeo’s Surprising Defense of International Law, Allies, and the Law of the Sea Convention

By Mark P. Nevitt

(Just Security | July 15, 2020) On Monday, Secretary of State Pompeo issued a strongly worded, highly legalistic statement lambasting excessive Chinese maritime claims in the South China Sea.

I welcome Pompeo’s statement as a substantive legal matter. It is long overdue. Nevertheless, it showcased the United States’ current schizophrenic approach to the UN Convention on the Law of the Sea (UNCLOS), its international allies in the Indo-Pacific region and elsewhere, and international law more generally. The United States should seek to reaffirm and reinforce its commitment to international law through UNCLOS Senate ratification. While doing so is by no means a magic bullet, it would serve as an important signal of the U.S. commitment to a rules-based order in the South China Sea and beyond.

To recap: for years, China has been making excessive claims in the region, pointing to a so-called historic “Nine-Dash Line” as the legal basis for these claims. This envelops an enormous swath of the South China Sea, encroaching on other nations’ maritime boundaries. And China is following through on its excessive claims: it has shown a willingness to employ aggressive tactics — including flexing military muscle — against other coastal states in Southeast Asia. It also has been building massive structures on contested “low tide elevations” and “rocks” in the area. These formerly uninhabited formations barely rise above sea level. They don’t qualify as “islands” under international law and, therefore, don’t create a critically important exclusive economic zone around them. But that has not stopped China from building and asserting one …

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Professor William C. Banks Analyzes Hong Kong National Security Law

How Hong Kong national security law compares to legislation in other countries

(South China Morning Post | July 7, 2020) China’s decision to write up and enact a national security law for Hong Kong was welcomed by city leaders, rejected by protesters, and met with incredulity by some legal authorities, with one remarking that it seemed to apply to “everyone on the planet”. But how does it compare to similar laws elsewhere?

“The striking feature of the new law is that it criminalises expressive behaviour that is not in any way violent.”

National security laws seek to strike a balance between public freedoms and protecting a country, while also shifting in focus as perceived threats change, legal scholars say.

Such a shift was seen after reports by US intelligence agencies that Russia used social media to try to sway the outcome of the US 2016 presidential election, including hacking the campaign of Democratic candidate Hillary Clinton …

… William Banks, a professor emeritus of law with Syracuse University in the United States, said: “[National security] definitions are a game that all governments play. Pay attention instead to how governments treat their citizens.”

Banks said the terrorism sections in Hong Kong’s new law were similar to those in many other countries and were not by themselves problematic.

“The striking feature of the new law is that it criminalises expressive behaviour that is not in any way violent. The sections on secession and subversion are the key provisions,” he said …

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Professor William C. Banks to Vox: Southern Deployment Legal, But Is the Wall?

The US military will stay on the US-Mexico border, even with migration falling

(Vox | June 25, 2020) The Pentagon will officially keep as many as 4,000 troops at the US-Mexico border in October — ensuring President Donald Trump’s military deployment continues throughout the election season despite no signs of an actual crisis.

In a Thursday statement, Army Lt. Col. Chris Mitchell, a Defense Department spokesperson, said Defense Secretary Mark Esper approved the Department of Homeland Security’s request for assistance at the border. Most military backup will come from the National Guard, he noted, which will help monitor the frontier, provide logistics, and offer transport to Border Patrol personnel. Troops can’t engage in law enforcement activities.

In a follow-up comment to Vox as to why such a decision was made months in advance, Mitchell said, “The current mission is set to expire at the end of September. This is just an extension of the mission through the next fiscal year.” The new authorized number of troops would actually be a decrease from the 5,500 military personnel currently at the border …

… William Banks, an expert on national security law at Syracuse University, told Vox that such a deployment, like the previous ones, is clearly legal. But, he added, “I continue to question whether the wall construction itself is lawful,” noting that multiple lawsuits proceed.

All this sounds well and good, but the issue is that what was supposed to be a temporary backfill at the border has now become a perpetual solution, and it’s not clear the military is even needed at the Mexico frontier anymore …

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Corri Zoli Discusses Arrest of Chinese Researcher with SCMP

US ties activities of arrested Chinese military officer to those by defendant in Boston case

(South China Morning Post | June 25, 2020) US federal prosecutors in Los Angeles have tied the activities of an arrested Chinese military officer conducting research at the University of California to that of a Chinese defendant charged in another high-profile case, in what Washington sees as a coordinated pattern of spying.

The indictments reflect the US government’s efforts to prevent advanced technologies developed in America from being transferred to China’s military, as lawmakers and government officials all the way up to President Donald Trump warn of Beijing’s attempts to undermine national security …

… Corri Zoli, director of research at the Institute for Security Policy & Law at Syracuse University in New York, went further: “I can’t imagine that the Chinese government would be sending active-duty military officers to academic tech programmes, who are on their payroll and engaging is some sort of transfer of research technology, and they’re not somehow involved” in an orchestrated tech transfer strategy, she said.

“These efforts are very much a kind of fourth-generation warfare or information-warfare-type strategy, and this is the way of our contemporary world,” Zoli added.

“It’s not just China doing this. It’s everybody. This is the way that we’re evolving into a new battlespace, but China happens to be very effective at it.”

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