Georgia Law

Experts in Hague consultation on ICC prosecutors’ draft Policy on Children

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THE HAGUE, Netherlands – Experts gathered this week from around the world for a wide-ranging consultation on the International Criminal Court Office of the Prosecutor’s draft Policy on Children.

In her Opening Remarks to Monday’s consultation, Prosecutor Fatou Bensouda explained:

“This Policy, once finalised and adopted, will guide my Office in our ongoing efforts to address international crimes against or affecting children under the Rome Statute, as well as our interaction with children during the course of our work.

“The Policy will further provide clarity and transparency on how we intend to methodologically undertake this crucial work.

“Additionally, it is my hope that this Policy will also serve as a useful guide for national authorities and other actors in their respective endeavours to address crimes against and affecting children, and in their interactions with children in judicial processes.”

Released last month, the draft Policy:

► Reaffirms an oft-repeated commitment of the Prosecutor. To be precise, the Policy reinforces her Office’s concern for “children with weapons” – that is, persons under fifteen who have been recruited or used in armed groups, often called “child soldiers.” But it also details the Office’s concern for what the Prosecutor called “children affected by the weapons” – that is, all persons who, before their 18th birthday, endured crimes within the jurisdiction of the Court.

► Adopts a child-sensitive approach to its dealings with children. That approach recognizes children as both vulnerable and capable, as both needy and resilient – often, at the same time. The Policy pledges sensitivity to these realities according to the regulatory framework of the Rome Statute system, and also according to principles drawn from international instruments, like the 1989 Convention on the Rights of the Child, a treaty that enjoys near-universal ratification and is founding on 4 guiding principles:

  1. The child’s right to be treated without adverse discrimination;
  2. The right to life, survival, and development;
  3. The right to have the child’s best interests taken into account; and
  4. The child’s right to express views and have them considered.

The draft Policy on Children (available in full here) explicitly recognizes those principles and sets out the contours for respecting and ensuring them.

It thus enumerates crimes against and affecting children. Included are crimes of conscription and use, as well as child trafficking as enslavement and forcible transfer as genocide. Also included are crimes like persecution, if it targets children on the basis or age or birth, as well as attacks on schools.

The policy further details the approach of the Office with respect to children at all stages of the proceedings: preliminary examinations, investigations, prosecutions, sentencing, and reparations.

All these aspects received discussion at Monday’s consultation; some are reflected in tweets available at #EndCrimesAgainstChildren. The policy working group will be considered along with other public comments. The Office welcomes additional such comments, which should be sent via e-mail to OTPLegalAdvisorySection@icc-cpi.int no later than Friday, August 5, 2016. The Office anticipates final publication in October of this year.

It was an honor to take part in this consultation in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict – and also to be accompanied at the consultation by one of my Georgia Law students, Chanel Chauvet. (We’re pictured below in front of a mural at the ICC’s new permanent premises.) A  rising 2L and Dean Rusk International Law Center Student Ambassador, Chanel just completed a weeklong Hague summer school on international humanitarian law.

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(Cross-posted from Diane Marie Amann)

Henckaerts on “Locating the Geneva Conventions Commentaries in the international legal landscape”

Jean-Marie-HenckaertsIt is an honor to publish a post by our distinguished alumnus, Dr. Jean-Marie Henckaerts (LLM 1990). Based in Geneva, he is Legal Adviser in the Legal Division of the International Committee of the Red Cross and Head of the project to update the Commentaries on the 1949 Geneva Conventions and the Additional Protocols of 1977. We posted on the launch of the Commentary to the 1st Convention back in March, and are pleased to announce that on September 23, we’ll host an experts’ conference examining that volume. Proceedings to be published in our Georgia Journal of International & Comparative Law, for which Dr. Henckaerts served as Associate Editor while a Georgia Law student. We republish his post today courtesy of 3 blogs cosponsoring a series of posts on the topic, Opinio Juris, Intercross, and Humanitarian Law & Policy. Dr. Henckaerts writes:

Norms of international law develop through the adoption of treaties or through the formation of customary rules based on State practice and opinio juris. The treaty rules of international humanitarian law (IHL) are first and foremost contained in the Geneva Conventions and their Additional Protocols. In parallel, a body of customary rules govern the conduct of armed conflicts today. In 2005, the ICRC released a Study aimed at identifying customary IHL rules; it formulated 161 rules of IHL which have achieved, according to State practice compiled by the ICRC, customary status.

The ICRC Commentaries, like other commentaries, purport to clarify the meaning of treaty rules in order to facilitate their implementation: they are concerned with norm interpretation as opposed to norm identification. All laws, no matter how detailed they are, have to be interpreted when being applied. International treaties, such as the Geneva Conventions, are no different. A commentary’s purpose is to offer such interpretations and indicate where a question is not entirely settled. By their nature, they cannot amend the law.

Because the 1949 Geneva Conventions were drafted in such a way as to make them easily comprehensible by belligerents, their rules already offer a degree of specificity and practicality – see the detailed rules governing the protection of prisoners of war in the Third Convention. Yet, the scope or meaning of some of their provisions may also require further clarification – see the lack of detail governing the Conventions’ scope of application. Time had come to provide an up-to-date interpretive guide to the Conventions, to better address today’s humanitarian challenges.

Applying the rules on treaty interpretation to the Geneva Conventions

According to the 1969 Vienna Convention on the Law of Treaties, a treaty must be interpreted

“in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”

(Art. 31(1)). The ‘object and purpose’ of the Conventions to respect and protect those affected by armed conflict while taking into consideration military necessity, has been a constant and leading compass throughout the research and drafting of the new Commentary on the First Geneva Convention (GCI). The ‘context’ to be considered for treaty interpretation comprises not only the text of the treaty, but also its preamble and annexes. As a supplementary means of interpretation (Art. 32), the preparatory work has been particularly important, when no recent practice on a topic could be found.

The Vienna Convention also reflects and foresees the need to take account the passing of time when interpreting treaties. Art. 31(3) provides that recourse may be had to

“subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

Other subsequent practice – for example conduct by one or more (but not all) Parties in the application of the treaty after its conclusion – may also be relevant as a supplementary means of interpretation. The weight of such practice may depend on its clarity and specificity, as well as its repetition. In the case of the Geneva Conventions, such practice – identified for example through military manuals, national legislation, case-law, reports of practice and official statements – has proved particularly useful in confirming or determining the meaning of a rule. ICRC experience and scholarly writings have also proved useful in informing the interpretation of the Conventions.

Pursuant to Art. 31(3) of the Vienna Convention, the Commentary also took into account other

“relevant rules of international law applicable in the relations between the parties”.

These include customary IHL and the three Additional Protocols, as well as other relevant branches of international law. In particular, human rights law, international criminal law and refugee law were still in their infancy when the Pictet commentary was being drafted but they have grown significantly in the meantime. In this regard, the development of case-law from international courts and tribunals since the 1990s also had to inform an up-to-date interpretation of IHL treaty rules.

An ICRC Commentary, resulting from a collaborative process

Where does the legitimacy of the ICRC to interpret the Conventions stem from? First, the ICRC benefits from a legal legitimacy as guardian and promoter of IHL, a role it was formally entrusted with by the international community through the Statutes of the International Red Cross and Red Crescent Movement, adopted by all States parties to the Geneva Conventions. Ensuring a coherent interpretation of the law is essential to enhance respect for it, and hence is at the core of the ICRC mandate. Second, the ICRC possesses an operational legitimacy, drawing from more than 150 years of experience in assisting and protecting those affected by armed conflicts, but also in engaging with weapon bearers to promote and disseminate IHL. Third, throughout the years, the ICRC has accumulated knowledge in material form: the ICRC archives have documented the practice of State and non-State actors, as well as its own. This wealth of experience and access to these materials sets the ICRC in a unique position to capture interpretations of IHL treaty rules.

At the same time, the updated Commentaries are far from an exclusively “ICRC” product. While they have been commissioned by the institution and edited by its staff lawyers, and include ICRC interpretations, they also incorporate an unprecedented level of external inputs, both in terms of process and substance. The Commentaries are the result of a collaborative process, involving external contributors as authors and reviewers. This allowed the new Commentary to take into account a wide range of perspectives, from different parts of the world, and to reflect main diverging views.

I am convinced that continuous efforts to interpret the law in a coherent manner is essential to ensure that the humanitarian spirit of the Geneva Conventions is carried forward into today’s conflicts. It is the ICRC’s hope that the new Commentaries will, like the Pictet Commentary, be a leading interpretative compass; but its ultimate authority will depend on its quality and relevance for practitioners and academics. The updated Commentaries should not be seen as the final word on the meaning of IHL treaty provisions, but rather as a picture of how the rules are interpreted today, and a contribution to continuing efforts to refine our understanding of the law and how it can best mitigate the effects of contemporary armed conflicts.

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View of destruction in downtown Homs, Syria; photo courtesy of International Committee of the Red Cross. ©Jerome Session/Magnum Photos for ICRC

“London had fallen”: Brexit reflections from a Georgia Law Global Extern

It’s our pleasure today to publish this post by Shirley Kathryn Griffis (below right), a member of the Georgia Law Class of 2017. Katie, as she’s known, spent Spring 2016 as  in our study abroad at Oxford University, and then began her second summer as a Global Externship Overseas in the London law firm Maples Teesdale. Reflecting on last week’s “Brexit” vote, Katie writes:

KatieThe first thing I thought on Friday morning was, “this can’t have happened.” It was a sentiment shared by almost all of my colleagues at Maples Teesdale’s London office, where I am spending my summer Global Externship Overseas. Together, we spent Friday morning pulling up articles, dusting off our United Kingdom constitutional law practice guides, and sharing legal theories on how the Brexit vote might be undone. It seemed that through the 51.9% to 48.1% vote to leave the European Union, London had fallen.

And we were in denial:

“The referendum is not legally binding.”

“Parliament can override.”

“Scotland won’t accept this. They can block it.”

“Cameron didn’t invoke Article 50, there’s still a chance.”

“Did you see the petition for the second referendum? Three million signatures! This won’t stand.”

The mood in London quickly turned from denial to anger when Prime Minister David Cameron announced that the results of the referendum must be respected, and the members of Parliament largely agreed. I chimed in with other voices from London on social media, asking how this could have happened. The feeling in London is that there is so much to be angry about that it is hard to know where to start, and whom to blame. Londoners started circulating a secessionist petition, there was a rally in Trafalgar Square to show solidarity with Europe, and everyone is talking about immigrating to Ireland.

London has a long way to go before accepting the reality of Brexit. The financial markets are reeling. The pound has plummeted, hitting a 31-year low in just four hours, and four major companies—Prudential Insurance, HSBC, BT and Royal Bank of Scotland—announced they were considering major staffing changes to include relocation or mass downsizing. As the financial capital of the United Kingdom, most major businesses in London have structured themselves to operate in accordance with European Union law and procedure. It is for this reason that London’s “stay” vote was 70% in favor—the European Union is vital to the survival of London’s economy.

FlagsThis is my second summer working for Maples Teesdale in London. I have always envisioned myself returning to London to practice after I graduate from the University of Georgia School of Law, but I worry now about whether that will be a possibility. It’s still uncertain what jobs, even industries, are safe, and how long the current financial crash will continue. I stand by my colleagues here in London, hoping that no matter how far London falls, it won’t take long at all to get back up and carry on.

ICC Office of Prosecutor invites public comment on draft Policy on Children

draftpolicyIt is my great honor to note today’s release for public comment of the draft Policy on Children of the International Criminal Court Office of the Prosecutor.

Since my December 2012 appointment as Prosecutor Fatou Bensouda’s Special Adviser on Children in and affected by Armed Conflict, I’ve had the privilege of helping to convene consultations and taking part in the construction of this draft Policy. As part of that process, as noted on page 11 of the draft, we at the Dean Rusk International Law Center, University of Georgia School of Law, were honored in October 2014 to host the Prosecutor, members of her staff, and nearly 2 dozen other experts from academic, nongovernmental groups, and intergovernmental organizations. Our “Children & International Criminal Justice” conference featured a morning public plenary and Prosecutor’s keynote (pictured below), followed by an afternoon of closed-door breakout sessions. (Proceedings from that event, to appear in our Georgia Journal of International & Comparative Law, are nearing publication.)

Addressed in the draft Policy, which spans 37 pages, are:

► Overarching concerns, such as the nature of a child and childhood, the experiences of children in armed conflict and other contexts within the jurisdiction of the ICC, and how the Rome Statute of the ICC and other documents treat crimes against and affecting children; and

► Practical concerns, such as how the Office of the Prosecutor engages with children, in all aspects of its work, including preliminary examination, investigation, charging, prosecution, sentencing, reparations, and external relations.

As stated in the press release accompanying today’s publication:

In highlighting the importance of the Policy, Prosecutor Bensouda stated: “when I assumed 8_events2the role of Prosecutor in June 2012, one of the principal goals I set for the Office was to ensure that we pay particular attention not only to ‘children with arms’, but also ‘children affected by arms.’ This Policy demonstrates our firm commitment to closing the impunity gap for crimes against or affecting children, and adopting a child-sensitive approach in all aspects of our work bearing in mind their rights and best interests. It is also our hope that the Policy, once adopted, will serve as a useful guide to national authorities in their efforts to address crimes against children.”

The Office welcomes public comment on the draft. Such comments should be e-mailed to OTPLegalAdvisorySection@icc-cpi.int, no later than Friday, August 5, 2016.

Following revisions based on the comments, the Office of the Prosecutor expects to publish the final Policy on Children in November of this year.

(Cross-posted from Diane Marie Amann)

My family history & path to the bench

It is an honor today to publish this post by our distinguished alumna, the Honorable Carla Wong McMillian, Judge on the Georgia Court of Appeals since 2013. Born in Augusta, Georgia, she earned her Georgia Law J.D. degree summa cum laude in 1998. She is the first Asian Pacific American state appellate judge ever to be appointed in the Southeast, and, since 2014,  the first Asian American to be elected to a statewide office in Georgia. Judge McMillian also serves as President-Elect of the Georgia Asian Pacific American Bar Association (GAPABA). Reflecting on these achievements in this essay, which we reprint courtesy of and with thanks to the Georgia Asian American Times, she writes:

Carla McMillianI am proud to be an American. I am equally as proud of my Asian American heritage.

I grew up in Augusta, Georgia, where the Chinese community has had a long history. The Chinese first immigrated to the city in 1872 to help build an extension of the Augusta Canal. These Chinese men — and it was all men in those days – began sending for their wives and children, and word spread that Augusta was a good place to immigrate and to make a new life.

My father’s parents were some of those who heard from others in their villages in southern China about Augusta. They originally immigrated to San Francisco, but moved to Georgia in the 1910’s and opened a small grocery store. In those days, if you were Chinese, you had two options to make a living in the South — open a laundry or a grocery store. My father was the youngest of six children and was born in the back room of that store where the family lived.

I am sure that my grandparents never dreamed that they would have a granddaughter who is a lawyer much less a judge. And although they did not know the language or the culture, they instilled in their children a love of this country and a service mindset. I am proud that my father and uncle are veterans who did their part to protect our freedom and way of life.

That’s my father’s side of the family – the Wongs from Augusta. But I also want to talk about my mother, who emigrated from Hong Kong to marry my dad. As a result, Chinese was my first language – that is what we primarily spoke at home before my siblings and I went to school.

One of my most distinct memories as a child was going into a courtroom and watching my mother be naturalized as an American citizen. I can remember my sister and me in our best dresses, standing with my father and watching my mother take her oath of allegiance to the United States. That was a proud day for my mother and for the rest of my family.

Growing up in an Asian American family in the Deep South, there just were not too many people outside of my family who looked like me, spoke like me, or ate the same kinds of foods at home. It used to be when I was a teenager that I wanted to cover up all of those differences and blend in. But as I have grown older, I have learned to embrace those differences because that is what makes our country so great.

I want to share with you that I never aspired to be a judge. I practiced for many years with a law firm in Atlanta where I expected to be for my entire career. But some judicial positions came open in my local jurisdiction. I almost did not apply. I was comfortable with my law practice and frankly I knew that even if I got the appointment, I would then have to run for election to keep my seat. I was fearful about facing the rigors of campaigning each election cycle. So after about a week of soul-searching, I had all but decided not to apply.

But I changed my mind one night as I was looking at my young children. I thought about what I wanted to tell them twenty years from now, about seizing opportunities and about doing what I could to serve the community where they will be growing up. So I applied for the judgeship and was appointed initially to the trial court and later to the Court of Appeals.

As a judge, I have taken an oath to uphold the Constitution. The Constitution ensures that we are a nation of laws, but it begins with the simple words, “We, the people.” Therefore, we must remember that key to the concept that we are a nation of laws is the notion of equality — the belief that “all men are created equal.” No one is above the law, and no one is so low that they cannot avail themselves of the law’s protection.

We must always remind our children that the rights and privileges guaranteed by the Constitution are there for us all. Without them, I would not be in the position that I am in today. The Constitution gives everyone an opportunity to fulfill their potential, even for someone like me who came from a family of immigrants because by protecting the rights that the Declaration of Independence declares to be God-given, the Constitution provides each of us the freedom and opportunity to pursue our own destiny. I am honored to serve as the first Asian American on our Court of Appeals and as the first Asian American to be elected to statewide office in Georgia.

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Our newest Masters of Laws

Saturday was the University of Georgia School of Law commencement, and we were very pleased to welcome to our community of nearly 500 LLM graduates the 15 talented lawyers pictured below. Congratulations to our newest Masters of Laws!

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Our LLM Class of 2016 posed on Graduation Day for a photo with Laura Tate Kagel, our Center’s Director of International Professional Education (bottom right). From left, the new alums are: top, Elisha Atulomah, Miguel David Medina Cordoba, Mahemud Tekuya, and Fazle Rabbi Chisty; middle, Huajin Tang, Kun Wang, Simon Wolffram, Xiao Zhang, and Deborah Nogueira-Yates; bottom, Ekaterina Knapik, Gladys Ashiru, Nastasja Spee, Socorro Moctezuma Flores, Tingting Tang , and Oluwakemi Kusemiju.

Summer 2016 GEOs: Georgia Law students ready to take on the world

GEO blog post photoThis summer, ten law students will benefit from international placements through the Global Externship Overseas, or GEO, administered by Georgia Law’s Dean Rusk International Law Center.

These students have been awarded funding to enable them to earn legal training in law firms, in-house legal departments, government agencies, and nongovernmental organizations around the world. Practice areas span a range, including refugee law, property law, criminal law, corporate law, and cultural heritage law.

2016 GEO participants include several rising 3Ls, who are headed to Europe and Asia:

► Bradley Dumbacher – GÖRG, Cologne, Germany
► Shirley Kathryn Griffis – Maples Teesdale, London, United Kingdom
► Brenny B. Nguyen – Boat People SOS, Bangkok, Thailand
► Jianan Zhang – Lenovo & Han Kun Law, Beijing, China

Numerous rising 2Ls also will be working ’round the world:

► Megan Alpert – GÖRG, Cologne, Germany
► Victoria Barker – DLA Piper, St. Petersburg, Russia
► Decker McMorris – Tosetto, Weigmann e Associati, Milan, Italy
► Claire Provano – Studio Legale Associato Rossini, Turin, Italy
► Carson Stepanek – Tosetto, Weigmann e Associati, Milan, Italy
► Hannah Mojdeh Williams – Department of Intangible Cultural Heritage, Ministry of Culture and Fine Arts, Phnom Penh, Cambodia

We congratulate them all on their GEO acceptance, and wish them an enriching summer. Can’t wait to hear travel notes!

UN affiliate CIFAL Atlanta: Our new International Judicial Training partner

Cifal AtlantaBeginning this year, Georgia Law’s annual International Judicial Training will be offered in partnership with CIFAL Atlanta, an affiliate of the United Nations Institute for Training and Research, or UNITAR.

UNITAR_Vertical_Logo_35mm_Blue-Pantone279C-01-pngCIFAL Atlanta joins an International Judicial Training partnership forged in the late 1990s by Georgia Law’s 2016IJT_fullDSDean Rusk International Law Center and the Institute of Continuing Judicial Education of Georgia. For nearly 20 years, the trainings have provided provided a high-level learning experience to foreign judges. Included are seminars with distinguished Georgia Law faculty and visits to a variety of courts around the state.

As one of several training centers across the globe linked to UNITAR, CIFAL Atlanta works to build capacity among local governments and civil society leaders, with particular emphases on economic and infrastructure development, fair trade, and good governance.

The 2016 International Judicial Training, to be held November 27 to December 10, will advance Goal 16 of the United Nations 2030 Agenda for Sustainable Development, which is

E_SDG_Icons-16“dedicated to the promotion of peaceful and inclusive societies for sustainable development, the provision of access to justice for all, and building effective, accountable institutions at all levels.”

Leaders of the new collaboration, which extends the trainings’ global outreach, include two Georgia Law graduates: Chris Young, CIFAL Executive Director, and Laura Tate Kagel, Director of International Professional Education at the Dean Rusk International Law Center. They work alongside Richard Reaves, Executive Director of the Institute of Continuing Judicial Education of Georgia, who brings decades of experience in organizing continuing education seminars for judges. Reaves’ extensive contacts throughout Georgia create opportunities for informative exchanges between the international judges and their U.S. counterparts. In Kagel’s words:

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In Georgia Law’s James E. Butler Courtroom, Richard Reaves talks with foreign judges during an International Judicial Training

“The International Judicial Training is more than simply an educational program. It can lead to significant reforms in terms of effective administration of justice and stimulate cross-cultural relationships that can bear fruit for years to come.”

Providing an example of this is Fernando Cerqueira Norberto, Secretary-General of ENFAM, the governing body of Brazilian judicial colleges. According to Cerqueira, Brazilian judges’ longstanding participation in the International Judicial Training correlates to the adoption in his country of innovations such as small claims courts, mediation procedures, and drug courts.

Judges and court personnel from all countries are welcome to apply for the 2016 International Judicial Training; further details and registration are available here.

Former Nigeria prosecutor’s LLM year features US practice experience

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Among the many talented foreign-trained lawyers set to earn Georgia Law’s Master of Laws (LLM) degree this month is Gladys Ashiru, who arrived with considerable experience as a prosecutor in Nigeria. She’s enriched this experience this year: in addition to her academic studies and a professional development trip, Gladys has worked as a volunteer prosecutor here in Athens.

Having immigrated to the United States, Gladys chose to put her career back on track by pursuing an LLM at Georgia Law. She says she was impressed by the collegiality she encountered during a visit to campus, and swayed by LLM graduates who spoke glowingly of their experience here.

Gladys’ strong interest in criminal law prompted Laura Tate Kagel, our Center’s Director of International Professional Education, to connect her with the Athens-based Office of the District Attorney for the Western Judicial Circuit, whose staff includes a number of Georgia Law alums. Assistant District Attorney Paige Otwell (JD 88) became Gladys’ mentor and introduced her to District Attorney Ken Mauldin (JD 80). After Gladys enrolled in Mauldin’s Spring 2016 Trial Practice course, he offered her the opportunity to observe and help out in the D.A.’s office. With the semester now at an end, Gladys recounts:

“It was an amazing experience for me. The internship broadened my horizons and exposed me to perspectives different from mine, especially in areas relating to jury selection and trials.”

After commencement on May 21, Ashiru plans to take the Georgia and New York bar exams, and also hopes to contribute to legal reform in Nigeria. Although she says that Georgia Law was challenging, she also found it rewarding, and calls it

“the best choice I made!”

Emerging security challenges require norm development, State lawyer says

IMG_5540At first blush, today’s security challenges may seem familiar. Yet they are new – emerging, in U.S. State Department parlance – because of the novel ways in which those challenges present themselves.

So explained Mallory Stewart (near right), Deputy Assistant Secretary of State for Emerging Security Challenges & Defense Policy, during her fascinating talk Monday at Tillar House, the Washington, D.C. headquarters of the American Society of International Law. We at Georgia Law’s Dean Rusk International Law Center were honored to join ASIL’s Nonproliferation, Arms Control & Disarmament Interest Group in cosponsoring Stewart’s talk, “Common Challenges to Diverse Security Threats.” (For the event video, see here.)

Stewart’s talk followed introductions by Kathleen A. Doty, Interest Group Co-Chair and our Center’s Associate Director for Global Practice Preparation, as well as opening remarks by yours truly (above, at right) respecting Dean Rusk’s arms control legacy.

Stewart pointed to technological change, in outer space and elsewhere, as one of the emerging challenges. Within this category was what is essentially garbage; that is, the debris left in outer space by state actors and, increasingly, nonstate/commercial actors, whose celestial flotsam and jetsam continue to orbit and present hazards to active satellites, space stations, and the like.

Another challenge is dual-use technology. Items as seemingly innocent as chlorine – a chemical essential to everyday cleaning – can become a security threat when deployed as a weapon, as is alleged to have happened during the ongoing conflict in Syria.

Yet another is ubiquity, the reality that technologies, such as cyber capabilities, are, literally, everywhere, and thus not easy to contain.

Containment – regulation – thus is difficult both to design and to effectuate. With regard to dual-use technologies, for instance, Stewart posed questions of intent: How, exactly, does one define and identify the moment that an innocent item is transformed into a weapon? What about attribution – in areas like cyberwarfare, how can the perpetrator be identified? How can attacks waged with such weapons be prohibited in advance?

Stewart gave due respect to the 20th C. arms control treaties that form the core portfolio of State’s Bureau of Arms Control, Verification & Compliance, where she practices. Nevertheless, stressing global interdependence, she stressed the need for more nimble forms of international lawmaking. To be precise, she looked to mechanisms of soft law, such as codes of conduct, as ways that states and other essential actors might develop norms for responsible behavior in the short term. In the longer term, if the internalization and implementation of such norms should prove successful, eventually legally binding treaties may result.

(Part 2 of a 2-part series; Part 1 is here.)