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.)

At Center event in D.C., reviewing namesake Rusk’s arms control legacy

outerspaceVisitors to Tillar House, the Washington, D.C., headquarters of the American Society of International Law, were treated yesterday to a superb overview of emerging security challenges by the U.S. State Department lawyer who leads that portfolio, Mallory Stewart. I was proud both to have Georgia Law’s Dean Rusk International Law Center cosponsor, and also to serve as discussant for this important event. This post and another tomorrow will outline the proceedings. (For the event video, see here.) Today’s post consists of my opening remarks, which aimed to to reacquaint the audience with to the role that our Center’s namesake, Dean Rusk, played in building the arms control framework within which Stewart and her colleagues work.

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Everyone knows, of course, about Dean Rusk and Vietnam – of his role in championing a foreign conflict that claimed more than a million American and Vietnamese lives between 1965 and 1974. Everyone knows, too, of his pivotal role in averting nuclear catastrophe during the Cuban Missile Crisis of 1962, when Rusk famously said,

“We are eyeball to eyeball, and the other fellow just blinked.”

What may be less well known – or been forgotten – is likewise significant. That is Rusk’s role in the design and implementation of the international arms control regime that has prevailed since the United States dropped atomic bombs on Japan seven decades ago. An Army officer who served in Asia and then in the War Department in D.C., Rusk, like many of his generation, did not fault the military decision. Yet in his memoir, As I Saw It, he wrote (p.122):

“[W]e made a mistake with the Manhattan Project from its inception. We should have built in a political task force to consider the ramifications of using the bomb.”

That position is consistent with Rusk’s own work, first as a State Department diplomat who championed the United Nations, NATO, and other multilateral postwar efforts, and ultimately as the head of that Cabinet department, for the entirety of the Kennedy and Johnson administrations.

As Secretary of State, Rusk oversaw the establishment of the U.S. Arms Control and Disarmament Agency, a forerunner of the Bureau for which our principal speaker, Mallory Stewart, now works. Moreover, Rusk was instrumental in the drafting, negotiation, conclusion, or implementation of at least seven major arms control treaties.

ltbtruskOne was the 1963 Limited Test Ban Treaty, about which Rusk wrote (p. 259):

“[A]fter the Cuban missile crisis, it was important to demonstrate that the United States and Soviet Union could coexist. The test ban required careful and extensive negotiations, but we and they did sign a major agreement on the heels of the most horrendous crisis the world has seen. … Such is the legacy of what President Kennedy felt was his proudest achievement.”

The other treaties were the Antarctic Treaty, the Outer Space Treaty, the Treaty of Tlatelolco, the Nuclear Non-Proliferation Treaty, the Seabed Arms Control Treaty, and the Anti-Ballistic Missile Treaty. Many of them remain at the core of the U.S. arms control portfolio to this day. Yet with the same modesty that pervades his memoir, Rusk wrote (p. 353):

“On the whole, our record on arms control under Lyndon Johnson was respectable.”

He did allow himself a light pat on the back (p.353):

“In reviewing the accomplishments of the Kennedy-Johnson years, I claim only one for myself: that with the agreements negotiated and our constant talking with the Soviets, my colleagues and I helped add eight years to the time since a nuclear weapon has been fired in anger.”

Rusk’s commitment to extending that time continued long after he left government, in 1969, and joined the faculty at the University of Georgia School of Law. Professor Rusk spoke often about arms control, with students, with the larger community, and with the stream of colleagues who consulted with him at his new home. Indeed, as late as 1985 – less than a decade before his death – Rusk welcomed to Athens, Georgia, former British Prime Minister Edward Heath, former Secretary of Defense McGeorge Bundy, former Secretary of State Alexander Haig, and others for a televised discussion entitled “Forty Years Since Hiroshima: What Next for Mankind?”

Rusk’s 1990 memoir returned to that question. In the final chapter, entitled “Dean Rusk’s Message to the Young,” he wrote (p. 630):

“Your generation will discover in the decades ahead whether mankind can organize a durable peace in a world in which thousands of megatons are lying around in the hands of frail human beings. A world in which collective security – what my generation used to try to curb the obscenity of war – is withering away, and we are not even discussing what shall take its place.”

We are here today to put the lie to that last line – that is, to discuss those very issues of global security. I look forward to Ms. Stewart’s remarks.

(Tomorrow: Outline of Mallory Stewart’s remarks. Credit for photo at top, of Rusk signing the Outer Space Treaty; credit for photo above of Rusk, standing just to the left of the portrait as President Kennedy signs the Limited Test Ban Treaty)

May 2 Event in DC: Common Challenges to Diverse Security Threats: A Conversation with Mallory Stewart

On Monday, May 2, at 5:30 p.m. at Tillar House in Washington D.C., the Dean Rusk International Law Center will co-sponsor “Common Challenges to Diverse Security Threats: A Conversation with Mallory Stewart.”

Mallory_Stewart_8x10_200_1The event will feature remarks by Mallory Stewart, Deputy Assistant Secretary for Emerging Security Challenges and Defense Policy at the U.S. Department of State. She is responsible for the management of the Office of Emerging Security Challenges and the Office of Chemical and Biological Weapons Affairs. Prior to this position, she served as an attorney in the Legal Adviser’s Office. In that role, she represented the United States before the Iran-U.S. Claims Tribunal, served on the U.S. delegation that negotiated the Ballistic Missile Agreements with Poland and Romania, and acted as the lead lawyer on the 2013 U.S.-Russian Framework for the Elimination of Syrian Chemical Weapons.

Stewart will explore the challenges common to the areas of space, cyber security, and chemical and biological weapons affairs, and the relevance of legal and/or political frameworks.tsinghua

Acting as moderator and discussant will be Diane Marie Amann, the University of Georgia School of Law’s Associate Dean for International Programs & Strategic Initiatives, Emily & Ernest Woodruff Chair in International Law.

The event, also sponsored by the Nonproliferation, Arms Control & Disarmament Interest Group of the American Society of International Law, that I chair, will have a reception following the substantive discussion. We welcome those in the DC area to join us. The event is free and registration is not required, but appreciated.

D.C. bound, for ASIL Annual Meeting

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Students, faculty, and staff at Georgia Law are heading this week to Washington, D.C. – members and Academic Partner of the American Society of International Law, bound for ASIL’s 110th Annual Meeting.

It’s always a special time of year for us at the Dean Rusk International Law Center, given our long tradition with the Society – not least because Louis B. Sohn, our inaugural Emily & Ernest Woodruff Chair in International Law, served as an ASIL President. In his honor, the Center has awarded Louis B. Sohn Professional Development Fellows to our 1 LLM, 1 MSL, and 3 JD students who will volunteer at the meeting. They’re pictured above, standing tall with the portrait of Professor Sohn which overlooks our Center’s Louis B. Sohn Library on International Relations.  The Sohn Fellows are, from left, Hannah Mojdeh Williams, Victoria Aynne Barker, Katherine Nicole Richardson, Deborah Nogueira Yates, and Bradley C. Bowlin.

Also ASIL bound are:

copydianeDiane Marie Amann, Georgia Law’s Associate Dean for International Programs & Strategic Initiatives, current holder of the Emily & Ernest Woodruff Chair in International Law, and a former Vice President of the Society. Amann, who leads our Center, will take part in a panel discussion of the new International Committee of the Red Cross Commentary on the First Geneva Convention at 2 p.m. Wednesday, March 30. Her talk is a forerunner to a planned Georgia Journal of International & Comparative Law conference on the Commentary, to be held on Friday, September 23, 2016.

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► Georgia Law Professor Harlan Cohen, who serves on ASIL’s Executive Council and as Managing Editor of its AJIL Unbound.

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Kathleen A. Doty, our Center’s Associate Director for Global Practice Preparation, and a past Attorney-Editor at ASIL. Formerly an attorney in the Office of the General Counsel, U.S. Department of the Navy, Doty also serves as Chair of ASIL’s Nonproliferation, Arms Control, and Disarmament Interest Group, also known as NACDIG. In that capacity, she’ll be moderating a panel entitled The Emergence of Cyber Deterrence: Implications for International Law, from 11 a.m. to 12:30 p.m. on Thursday, March 31. Speakers will be Gary Brown, Professor of Cyber Security at the Marine Corps University; Jonathan E. Davis, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State; and Tara McGraw Swaminatha, Of Counsel at the Washington office of DLA Piper LLP. Here’s the panel description, as set out at page 37 of the Annual Meeting Program:

“Military and civilian policymakers increasingly stress the importance of deterring other nations from engaging in computer network exploitation and attacks against the United States. Resulting from the behavior of China, Iran, and North Korea respecting offensive cyber capabilities, deterrence features prominently in the new Department of Defense cyber strategy, the response of the Obama administration to high profile attacks, and the Congressional debate around cyber issues. This panel will explore the emergence of cyber deterrence, and new trends in cyber security generally, as they relate to international law. Some important areas of concern include: how the emphasis on deterrence might affect the law on State responsibility, non-intervention, counter-measures, and the use of force; whether moving to strengthen cyber deterrence requires changing the permissive nature of international law on espionage; what new norms might be needed to support and stabilize cyber deterrence, such as confidence-building measures, arms control rules, and norms on escalation control; and how the emergence of cyber deterrence might affect other cyber issues important in international law, including Internet governance, digital commerce, and human rights. The session will also analyze what international legal lessons might be learned from nuclear and non-nuclear contexts where States have adopted deterrence strategies.”

See you there!