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Abstract:
This report is the product of a mission of the Committee on European Affairs of the New York City Bar to assess the international legal issues raised by the attempted secession of the so-called Transnistrian Moldovan Republic from the Republic of Moldova. The mission consisted of Barrington D. Parker, Jr., a United States Circuit Court Judge from the Second Circuit; Robert Abrams, a partner at Stroock & Stroock & Lavan LLP and former Attorney General of the State of New York; Elizabeth Defeis, Professor of Law and former Dean of Seton Hall University Law School; and Christopher J. Borgen, an Assistant Professor at St. John's University School of Law. It was led by Mark A. Meyer, a member of Herzfeld & Rubin, P.C., and the Chair of the Committee on European Affairs. Professor Borgen is the principal author of this report.

Moldova is the poorest country in Europe and it is enmeshed in a seemingly intractable separatist conflict involving ethnic tensions, Russian troops, Soviet-era arms stockpiles, smuggling, money-laundering, and corruption. Bordering Romania and Ukraine, with a majority of ethnic Romanians, it is a country that has been largely overlooked by the West. This report examines the key legal issues of this frozen conflict and assesses the legal or quasi-legal arguments made by the Government of Moldova and the separatists.

At issue is who should control Transnistria, a strip of land roughly the size of Rhode Island nestled between the Dniestr River and the border of Ukraine. Transnistria contains Moldova's key industrial infrastructure, power plants, and, importantly, a significant stockpile of Soviet-era arms. Since 1994, it has been under the effective control of a separatist regime that calls itself the Transnistrian Moldovan Republic (TMR).

In preparing this report the mission not only met with U.S. Government specialists and members of the diplomatic community, but also traveled to Moldova (including Transnistria) and met with the key policy leaders in Moldova and in the breakaway region, including the President of Moldova and the leader of the Transnistrian separatists, as well as the senior advisers to both leaders. We believe the result is the first independent analysis of the legal issues involved in the Transnistrian crisis.

The resulting report considers three main legal issues: (a) whether the TMR has a right under international law to autonomy or possibly sovereignty; (b) what the legal concerns are regarding the sale by the TMR leadership of property located in Transnistria to foreign (usually Russian) companies; and, (c) what role third-party States have in the ongoing conflict and, in particular, the international legal implications of Russian economic pressure and military presence in the TMR.

We conclude (a) the TMR has not made a legally sufficient case that it has a right to external self-determination or secession and that its is best understood as a de facto regime; (b) in light of the rules governing de facto regimes and also the law of occupation, the TMR's so-called privatization program can leave investors with no confidence that these transactions would be enforceable if the TMR were reintegrated into Moldova; and (c) Russia's ongoing military assistance, economic support, and its effectively bargaining on behalf of the TMR using energy prices and other levers of power against Moldova leads to credible claims of state responsibility on the part of Russia for the continuing separatist crisis and its proximate results.

Though not well-known, the Transnistrian crisis provides an optic by which other frozen conflicts, such as the Abkhazian separatist crisis in the Republic of Georgia, may be addressed.

Abstract:
If treaties do not hang together, then the international legal system will fall apart. But as treaties proliferate, they increasingly overlap and frustrate each other's goals. This article assesses whether there are effective rules and tools that policymakers can use to avert or resolve treaty conflicts in general, regardless of the specific policy-areas at issue. It finds that the Vienna Convention on the Law of Treaties (VCLT) neither addresses the types of conflicts that are relevant today nor is it successful in resolving certain types of conflicts it does address. In order to be a more coherent system, international law needs rules and procedures that assist States in avoiding or resolving treaty conflicts in a principled manner, without necessarily having to resort to international tribunals. This requires more than just a revision of the VCLT but rather a more rigorous approach to envisioning how treaties affect one another, a practice of drafting treaty clauses that takes this interplay into account, a purposive method of treaty interpretation that will better spot potential conflicts, and the acceptance and application of "default rules" in cases of conflict.

The article has five main parts. Part I sets out a typology of treaty conflicts. Part II describes classic methods of conflict avoidance and resolution and how these norms have not been applied consistently and are of little use in the types of conflicts that are now common. Part III assesses the VCLT and shows, through recent examples from a variety of substantive areas, that the VCLT is not equipped for the types of problems States face today. Part IV reconsiders what one may learn from analogies to contractual and legislative conflicts. Part V draws from the previous sections to suggest options in addressing treaty conflicts and considers the implications of the preceding discussion on the status of international law as a coherent legal system.

Abstract:
Transnational tribunals - mechanisms that allow sub-national actors such as individuals and companies to sue states for infringements of their rights - are not only proliferating in number, they also have larger caseloads covering more substantive areas than ever before. My article assesses whether and how such tribunals cause normative change in the domestic legal and political systems of member states.

At issue is not only whether a state chooses to comply with an adverse ruling, but whether the actual norms - the beliefs and habits - of the society change. Drawing on legal theory as well as sociology, game theory, and international relations theory, I compare and contrast the effects of tribunals focused on human rights with those concerned primarily with contractual and property rights.

I conclude that instead of normative transmission being simply a form of legal imperialism by Western democracies, as some have argued, there are actually many different constituencies building alliances across state and class lines in attempts to forward their claims both domestically and internationally. All of these constituencies - corporate interests, human rights activists, environmentalists, and indigenous peoples - access and use the tools of globalization via the means of transnational legal process, such as adjudication before transnational tribunals. This is neither the North versus the South, nor the global versus the local, but rather the struggle of communities that transcend state borders, have competing conceptions of the good, and use the tools of globalization. Their common use of similar legal mechanisms leads to a "hegemony of process" in which certain outcomes are favored by certain procedural structures.

Abstract:
This article, part of an ongoing project by the author on law and hegemony in Eurasia, considers the strengths and weaknesses of the New Haven School's policy-oriented jurisprudence in light of the competition among multiple conceptions of world public order that exist today. Taking as its starting point the concept of the world being divided into diverse systems of public order, as defined by Harold Lasswell and Myres McDougal, this article assesses how this idea of diversity applies to post-Cold War geopolitics. As a test case, it focuses on Eurasia as a geographic space where multiple conceptions of public order, including those of the United States, the European Union, Russia, and Islamic fundamentalism, overlap, interact, and at times compete, especially in the unstable arc of states bordering Russia.

Part I introduces the idea of diverse systems of public order described in policy-oriented jurisprudence. It also situates the New Haven School as part of the liberal modernist tradition that attempts to find universal norms and/or techniques to address questions of political or normative conflict. Part II examines the different public orders in today's multipolar, multinormative world. Part III proposes the concepts of systemic borderlands (states that are the geopolitical crossroads between two or more normative realms) and of normative friction (the process by which competing conceptions of public order interact in these borderland states) as means of describing normative interactions in a multipolar world. Part IV considers examples of systemic borderlands and normative friction in Eurasia and, in particular, the recent disputes over the accession of East European states to the E.U. and to NATO and the ongoing conflicts over the states of the Black Sea and Caspian Sea regions. Finally, Part V considers ways in which the New Haven School can build on some of its own original insights on the existence of diverse systems of public order in light of changes in international politics and sets out questions for further investigation.

Abstract:
This Article, written for a special issue of the Chicago Journal of International Law concerning great power politics, seeks to elucidate whether and how international law shapes modern diplomatic discourse and, in particular, how “great powers” use international legal arguments as part of their diplomatic strategies. I use one topic area — arguments over self-determination — and two cases — Kosovo and South Ossetia — to explore this relationship between the language of law and the practice of politics. I argue that international law serves as both a vocabulary and a grammar for diplomacy. International law is a vocabulary in that it defines the words that can or cannot be used in diplomatic discourse, the terminology that is or is not acceptable. Similarly, international law provides a grammar for international relations by setting the rules by which words fit together — essentially, how ideas can be expressed. For example, “we will use our right to attack you” does not fit into the grammar of international law or international politics (barring some questionable readings by the Bush Administration). By cabining what can be said in international relations, international law defines norms, shapes expectations, sets the boundaries of what can be legitimized and, ultimately, can make it more or less likely that certain state actions will be successful. Section II of this Article briefly sets out the background of the Kosovar and South Ossetian conflicts. Section III is a quick primer on the evolution of the concept of self-determination and its at-times difficult coexistence with the concepts of sovereignty and territorial integrity. Section IV turns to the analysis of how legal argumentation was used by Russia, the US, and the EU in the cases of Kosovo and South Ossetia. Although I note the relative strengths and weaknesses of the arguments, I am less interested in who was right or wrong as opposed to what strategy was used (if any) in deploying the language of international law. I am especially interested in how Russia, in particular, has used the language of international law as a tool of public diplomacy in an attempt to spin the perceptions or “control the narratives” related to both Kosovo and South Ossetia. Finally, Section V considers how the rhetorical use of international legal argumentation goes beyond managing perceptions and can actually affect the evolution of the substance of international law.

self-determination, secession, sovereignty, international law, Russia, European Union, Kosovo, Ossetia, Georgia, great powers

Abstract:
It has become a standard conceit in counterterrorism policy to describe al Qaeda and similar such transnational organizations as networks. At the same time, among a scholars focused on topics such as cross-border regulatory regimes, transnational litigation, and the structures of public international law, there has been an increasing consideration of law and legal institutions as being a part of one or more networks. This essay, prepared for the Oklahoma City University School of Law symposium, "Military Commissions and Congress's Role in the War on Terror," is thus the tale of two networks: what happens when the network of terror and the network of law collide.

After and introductory section, Part II will briefly introduce the network theory and use it to describe the mechanisms of al Qaeda's terror network. Part III will turn to how network theory has affected counterterrorism strategy, particularly emphasizing intelligence analysis and the use of legal regimes to leverage strengths. Part IV will return to network theory more broadly and ask how the network of law can be adjusted to be more effective in disrupting the terrorists' network. This essay concludes that, despite the hostility of the Bush Administration to international law and that Administrations' efforts to circumvent existing domestic legal regimes, the network of domestic and international laws, including the protection of civil liberties, is a crucial component to a successful counterterrorism strategy.

From "smart mobs" to "netwars;" from narcotrafficking to the Internet, network theory has provided insights into decentralized social organization and coordinated action. Both sides in the "War on Terror" are networked and are themselves networks. This article attempts to grapple how social organization is evolving in the 21st century and how this evolution affects counterterrorism.

Abstract:
The interrelated concepts of sovereignty, self-determination, and the territorial integrity of states form a Gordian knot at the core of public international law. This Article, written as part of a symposium on law and geography, considers how geographic concepts can be used to try to untangle - or slice through - this knot of issues.

The frozen conflicts of Eurasia are a series of ongoing secessionist crises in the post-Soviet states of Moldova, Georgia, and Azerbaijan. I will use the example of the so-called "frozen conflict" in Moldova as a central illustration. Part I is a discussion of how we "imagine sovereignty" - using techniques of political geography and cartography to designate sovereignty and how this affects our perception of claims. Related to this, I consider how "territory" is both a physical thing - a plot of land - and also an ideological concept - an idea of a homeland. Part II briefly sets out the evolution of the concept of self-determination and how it is used to regulate legal claims for secession. Part III further examines the theory of self-determination through the optic of the conflict in Moldova. This part will also consider the "legal geography" of secessionist enclaves. Part IV situates these legal arguments in the broader discourse of realpolitik, including whether and how these issues relate to the debate over the final status of Kosovo. Finally, Part V considers implications of these findings and addresses arguments that perhaps it is time to reorder the international system around something other than states.

The frozen conflicts have been considered intractable in part because it is very difficult to find negotiated solutions on purely political bases. Realpolitik has its limits. Perhaps seeing these conflicts through the optic of international law, and that the contested territory has a legal geography as well as a political geography, may provide a framework in which, based on the norms of the international community, some claims will be favored and others viewed as comparatively weak. The challenge is to use the norms of self-determination not merely to protect the prerogatives of states but also to envision a means towards principled and just resolutions of these, and similar, conflicts.

Abstract:
This essay is part of a written symposium in honor of Father Robert Drinan, S.J., book "Can God and Caesar Coexist?" The symposium also includes essays by professors Elizabeth Defeis and Mark Janis, as well as a responsive essay by Father Drinan, one of his last published pieces.

This essay focuses on Father Drinan's proposal to establish a transnational tribunal for the protection of religious freedom. Part I of this essay considers Father Drinan's proposal as part of the modernist tradition of international legal jurisprudence. Aspects of Father Drinan's argument are especially similar to conceptions of international law elucidated by Hersch Lauterpacht, perhaps the greatest twentieth-century exponent of legal modernism. Both Lauterpacht and Drinan draw from a worldview defined by the European Enlightenment and the start of what is commonly called the Age of Reason.

After situating the proposals of "Can God and Caesar Coexist?" within international law's tradition, Part II turns to a pair of relatively recent methods of criticizing the traditional view of international law: rational choice theory and so-called critical or new stream perspectives on international law. Although these perspectives have at times been linked with politically conservative (rational choice theory) and liberal (new stream) viewpoints, Part II argues that they are better understood as atavistic conceptions of law that have earlier manifestations in the theories of the Enlightenment philosophies and of their Romantic critics. As such, legal modernism, new stream theory, and rational choice perspectives are methodological siblings, borne of the Age of Reason and now squabbling over the intellectual inheritance of their parents. They may be better off sharing the wealth and helping each other.

With this discussion as a base, Part III returns to Father Drinan's proposal and considers how it may profit from the perspectives of rational choice and the new stream, as well as insights from transnational legal process and legitimacy theory. I use these theories to highlight an underlying tension in Father Drinan's proposal - the attempt to use rationalist/universalist tools to defend particular conceptions of the good. Referring to recent debates on the effectiveness of transnational tribunals, I ask whether legalization and the use of a tribunal would actually be counter-productive in this instance. Conversely, while Father Drinan's proposal has its difficulties, new stream and rational choice theorists can learn from his mainstream/modernist methodology in considering how to address the sectarian struggles of today. Father Drinan's proposal may not be perfect, but it does present a clear path towards attempting to resolve actual problems. Bridging theory with practice remains one of the enduring parts of Father Drinan's scholarship and the ongoing process of trying to find a solution may be all the solution that exists.

Abstract:
This Essay, written for the South Texas Law Review’s Ethics Symposium, considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. It focuses on the relationship of credible legal arguments to legitimacy and reputation.

Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one’s treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Moreover, in “fourth generation conflicts” such as this, a sense of “moral cohesion” is especially important. This is aided by a sense of the legality of one’s actions.

Part II focuses on how the Bush Administration oscillated between a hostility to international law and attempts to rewrite the rules of international law concerning the use of force. While the United States was able to foster a new understanding of international law that legitimized the invasion of Afghanistan, the invasion of Iraq was another matter. Regarding Iraq, the Bush Administration made arguments that undercut the very foundations of the law of the use of force. It acted in a way that maximized short-term flexibility but damaged the reputation and efficacy of the United States (at least into the medium-term) and may have weakened some of the foundational principles of international law.

Finally, Part III considers some of the effects of these legal policies on U.S. foreign policy beyond Iraq by considering the interplay or power, responsibility, and reputation.

Reputation, Iraq, War, Terrorism, Torture, Diplomacy