Featured, In the Journal — February 1, 2016 at 3:21 pm

Volume 7, Issue 1

Intelligence Communities, Peer Constraints and the Law
by Ashley Deeks

Widespread disclosures about Western intelligence activities have drawn public attention to intelligence oversight, and caused some critics to doubt whether legislatures and courts can effectively oversee intelligence collection and covert action. This article identifies and analyzes another important source of constraint on intelligence services: their peers. The article posits that the actions of one intelligence service can affect how other services conduct their work and even view their own legal obligations. Specifically, it posits that constraints from peer agencies can complement traditional public oversight, and, in some circumstances, create benefits such as increased rights protections. The paper argues that peer constraints produce real effects that are likely to increase in the coming years, and therefore this underexplored area of agency interactions should be given greater consideration in the ongoing debate on effective oversight.

Article 234 of the United Nations Convention on the Law of the Sea: the Overlooked Linchpin for Achieving Safety and Security in the U.S. Arctic?
by Stanley P. Fields

Russia and Canada have successfully leveraged international legal regimes to strengthen their ability to assert a sovereign presence in their respective Arctic regions. However, despite increasing American activity in the Arctic, the United States government has failed to develop any substantive strategy for sustaining its sovereignty in the region. Specifically, other nations have historically relied on Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS), which allows costal states to adopt non-discriminatory laws/regulations for prevention of pollution in ice-covered areas, as the basis for their unilateral implementation of environmental safety regulations. However, the United States has historically been opposed to Article 234 reliance due to fears on its possible impacts on freedom of navigation. This article argues that changing the U.S. approach to Article 234 interpretation would allow implementation of a regulatory framework, similar to that of Russia and Canada, to enhance environmental protection, safety of life at sea, security, and maritime domain awareness in the U.S. Arctic.

Clearing the Air Above the East China Sea: the Primary Elements of Aircraft Defense Identification Zones
by Roncevert Almond

In 2013, China unilaterally established an Air Defense Identification Zone (ADIZ) over the East China Sea. China has defended the measure as consistent with international norms, while other states challenge this claim. Since the establishment of ADIZ has no express legal basis, but rather is rooted in customary international law, ADIZ are subject to variances and countervailing state action. To provide greater legal clarity on ADIZ and mitigate the risk of miscommunication or conflict in East Asia, this article defines the primary elements of ADIZ, as derived from state practice and principles of international law, and applies them to the present situation in the East China Sea. The article identifies six primary elements of ADIZ and examines China’s actions under each, finding some consistent and some inconsistent with international norms. The article stresses that such a combination increases the risk of conflict in the region, and concludes by recommending the standardization of ADIZ in international airspace through a clear articulation of their primary elements in an appropriate international legal forum.

Terrorism 2.0: the Rise of the Civilitary Battlefield
by Gil Avriel

The rise of territorial terrorist groups – from Boko Haram to Hezbollah to ISIL – has spurred the need for new frameworks for investigating and analyzing the nature of terrorist threats. Terrorist groups around the world have changed the modern battlefield, and have drastically altered the goals of warfighting. Yet, such groups are often described by policymakers, scholars, and international media using traditional, militarily focused terminology that does not adequately capture the civilian-facing nature of modern terrorist threats. This inadequacy leads to a gap between old words and new realities, which leads in turn to erroneous perceptions and inefficient decision-making. Since the fight against terrorism inherently involves both civilian and military spaces, this article proposes a new paradigm for evaluating terrorist groups under “Civilitary Theory.” The article lays out three different civilitary models that can be used for describing the activities and evolution of different terrorist groups.

Coming to Terms with Secret Law
by Dakota S. Rudesill

The allegation that the U.S. government is producing secret law has become increasingly common. This article evaluates this claim, examining the available evidence in all three federal branches. In particular, Congress’s governance of national security programs via classified addenda to legislative reports is here given the first focused scholarly treatment, including empirical analysis that shows references in Public Law to these classified documents spiking in recent years. Having determined that the secret law allegation is well founded in all three branches, the article argues that secret law is importantly different from secrecy generally: the constitutional norm against secret law is stronger than the constitutional norm against secret fact. Three normative options are constructed and compared: live with secret law as it exists, abolish it, or reform it. The article concludes by proposing principles for governing secret law, starting with the cardinal rule of public law’s supremacy over secret law.

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