A review of Lincoln’s Code: The Laws of War in American History. By John Fabian Witt. New York, N.Y.: Free Press. 2012. Pp. viii, 248. $32.00.

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In a timely article, Jason Yackee proposes a pair of important, attractive, and politically plausible reforms to the international investment law (IIL) system. Because his proposals offer real promise as a way to bolster the regime’s credibility and efficacy, this response will engage both the particulars proposed and the theory that informs them. I hope to suggest that, even for those who may not share Yackee’s theoretical framework or his normative reservations about the IIL regime, his proposals offer an attractive response to the slow-burn crisis of legitimacy that has dogged the regime for more than a decade.

ILJ’s 2013 symposium wrapped up with a lively discussion about the role of environmental and human rights in international investment arbitration. Tyler Giannini, Clinical Professor of Law for the Human Rights Program and International Human Rights Clinic at HLS, moderated the panel in the form of a question and answer session. The panelists, hailing from across the globe and with experience as counsel, arbitrators, advisers, and academics, represented a variety of international viewpoints on the topic.

Professor Giannini began the conversation by asking panelists to address how the international investment regime relates to or differs from the human rights regime. Professor Joost Pauwelyn explained that protections for international investors and human rights do share a common root, although investment protection began first. Both regimes seek the protection of rights against abuse. However, Professor Pauwelyn drew the distinction that the investment regime’s purpose—to facilitate investment—is more utilitarian. The investment regime only protects certain classes of people, i.e. alien investors of certain nationalities, while we are all born into human rights. Unlike the rights of international investors, human rights are enforced in a court system and their enforcement internationally first requires exhaustion of domestic remedies. Professor Pauwelyn also asked: With an eye to determining who can waive investor rights, are investor rights individual rights, like human rights, or are they derivative rights from the state? Finally, Professor Pauwelyn expressed his concern that small investors cannot adequately access protection in the costly investment regime and that this may negatively impact the system’s credibility.

Panelists next addressed the role of human rights and environmental law in the current investment regime. Professor Attila Tanzi explained that respondent states have been reluctant to raise environmental law and human rights arguments out of the concern that they might enhance the position of potential claimants before domestic courts. According to Professor Tanzi, the current trend in international investment arbitrations with respect to human rights and environmental law is “compatibility in separation,” meaning it is the obligation of the state to carry out both. Professor Tanzi hopes that investment arbitrations can move toward “compatibility in integration.” Mr. Gómez-Pinzón responded that, as an arbitrator, he would apply environmental or human rights law if it was applicable to the case. On the other hand, professor Boisson de Chazournes called for political elites negotiating investment treaties to take a greater role in incorporating human rights and environmental law because arbitrators have little opportunity to maneuver to include those areas of law in the current regime. Professor Pauwelyn responded that avenues to incorporate more human rights and environmental law in the investment regime already exist, such as Article 42 of the ICSID Convention (referring “to such rules of international law as may be applicable”) but that arbitrators need greater expertise in this area of law.

Addressing the role of soft law human rights and environmental law instruments in foreign private investment, Professor Boisson de Chazournes questioned the legal standing and role of these instruments in the interpretation of customary international law, given they do not reflect state practice but private corporate practice. She suggested that they can perhaps be complementary tools to assist filling in international law gaps. Professor Pauwelyn looked to arbitrators current references to the International Bar Association guidelines as a potential model for the incorporation of human rights and environmental law soft law instruments into the investment regime.

Finally, commenting on the future of investment law’s relationship to environmental and human rights, Mr. Gómez-Pinzón predicted that the evolution would be slow and cautious, with the lead taken by states negotiating bilateral investment treaties. There has already been a greater tendency for transparency and amicus participation in arbitrations, but private companies will likely resist increasing transparency. Judge Brower, the symposium’s keynote speaker, with the last word, cautioned the panel against engaging in a theoretical discussion of a problem that no one has found to yet exist. Noting that the international investment regime has been evolving for years, he encouraged adopting a long view of the system and emphasized that if anything, loss of investor confidence, would be the ruin of the system.

The second panel of ILJ’s 2013 symposium consisted of distinguished academics and practitioners with years of experience in investment arbitration. The panelists discussed remedies and damages in investment arbitration, and in particular the availability and desirability of primary remedies.

Professor van Aaken, from the University of St. Gallen, presented an overview of the types of remedies offered in public international law, commenting on the apparent peculiarity of the investment regime which generally offers only secondary remedies as opposed to other international public law regimes, such as trade and human rights, which offer predominantly primary remedies such as restitution and declaratory relief. Both states and investors seem to prefer secondary remedies in investment arbitration cases. States view primary remedies as infringements on their sovereignty and investors prefer pecuniary awards as they are more easily enforceable. Professor van Aaken, however, noted that the advantages of primary remedies are lost by focusing exclusively on secondary remedies. These advantages include giving investors greater control within the domestic administrative and judicial systems as well as other branches of the government, and providing states with another option if the damages claimed are exceedingly high. Professor van Aaken recommended that investment arbitration tribunals could capture the advantages of both types of remedies by taking greater account of national legal systems and procedures. This would give greater levels of protection to the investor and also be more palatable to states.

Hamsel Pham, partner at White & Case, described various treaty provisions on permissible remedies, concluding that generally treaties are reluctant to force states to comply with non-pecuniary remedies. He discussed the few cases where ICSID had granted non-pecuniary remedies, concluding that this was a rare occurrence, partly because claimants rarely ask for primary remedies, and when they do tribunals are wary of granting them.

Janis Brennan, partner at Foley Hoag, discussed primary remedies in the context of interim and provisional measures within the international arbitration system. She discussed the differences between ICSID and UNCITRAL, whereby ICSID tribunals may only grant provisional measures but cannot grant an interim award whereas UNCITRAL has provisions to grant an interim award by order. However, according to her, this distinction may not matter for enforceability purposes.

Brennan also discussed the tension between sovereignty implications versus “arbitrator activism” that has colored the investment arbitration system, and given rise to concerns that states will increasingly exit the system if they perceive it to threaten their regulatory authority. A controversial case in this respect was Chevron v. Ecuador, where Chevron has asked a UNCITRAL tribunal to order Ecuador to suspend a domestic court’s judgment, which the company has refused to appeal. Ecuador has argued that it cannot demand that its judiciary not enforce a judgment that is otherwise valid. The implications of this and other similar cases on the investment arbitration system as a whole remain to be seen.

“The Design of the Investment Arbitration System: Consistency and Precedent” addressed current design flaws in the investment arbitration system. Panelists focused on the consistency of judgments and enforcement, and potential fixes to the system.

The first speaker, Prof. Pieter Bekker, explored the roles of various participants in the arbitration tribunal and how to ensure that the regime continues to meet its constituents’ expectations. Citing an essay by the panel’s moderator, Prof. Jeswald Salacuse, that was published in a recent book, Prof. Bekker noted that challenges to the regime may foil states’ expectations and therefore undermine the regime. But “it is the regime’s users that constitute the greatest threat,” Prof. Bekker said, and he went on to map the responsibilities of various users.

Parties must appoint knowledgeable and impartial arbitrators, and, when arbitral institutions make appointments, they should choose arbitrators who do not have a reputation for preferring common or civil law. Arbitrators themselves should pay more attention to the formal sources of international law, including Article 38 of the Statute of the International Court of Justice and Article 31 of the Vienna Convention on the Law of Treaties. These are both pillars of the public international legal structure, but rarely cited in arbitral opinions. Counsel, finally, should be mindful of transnational ethical obligations imposed by their bar. In summary, Prof. Bekker suggested that there was “room for improvement” in the way that constituents approach the “intricacies and sensitivities inherent in the hybrid and developing regime of investment treaty arbitration.”

The next speaker, Caroline Richard, noted that, while the vast majority of investment awards are fully paid and settled, investor-state arbitration presents unique enforcement risks. States have immunities not available to individuals or companies, which can make the enforcement of awards against State assets more difficult, particularly when (i) the State in question has few commercial assets outside its borders (by design or by circumstance), and (ii) the prospect of enforcing the award before the State’s own courts is unappealing or unrealistic.

She further noted that in those exceptional cases where States have failed to comply with ICSID awards – notably, the case of Argentina – investors have resorted to using the political leverage of their home states, such as lobbying for trade sanctions, to pressure States into complying with awards. But this development puts politics back into a regime that had been designed to de-politicize investor-state disputes, raising the possibility of political fallout and leaving investors at the mercy of their home states.

Another panelist, Jeremy Sharpe, discussed trends in recent BITs.  Many modern BITs clarify that investor protection cannot come at the expense of other important values, such as protecting public health and the environment.  These BITs often define the substantive protections much more precisely, and some tie certain important protections, such as fair and equitable treatment, to customary international law.  Many new BITs also define more precisely how claims may be brought and presented, offering detailed provisions on consent to arbitration, consolidation of claims, the conduct of proceedings, and so forth.  The arbitration process, for its part, has tended toward more transparency, with more participation by non-disputing treaty parties and acceptance of amicus briefs, for example.

Harvard Law School’s own Professor Mark Wu—filling in on short notice for a couple of speakers who were absent because of the day’s snowstorm—expressed skepticism that the design flaws in the international arbitral system will be resolved. He identified two broad categories of inconsistency problems affecting the investment arbitration process. First, the arbitration process does not include a process to ensure consistent rulings on specific points of law. Second, arbitration does not seem to treat all legal actors equally, at least to constituents of the system—states, in particular, perceive their treatment as disparate. Noting that solutions to both problems have been proposed and debated for decades, but that the realpolitik of powerful states with vested interests preclude any significant design fix, Professor Wu predicted that these inconsistencies are here to stay, and are unlikely to lead to the replacement of the current investment arbitration system.

Finally, Professor Salacuse, the panel’s moderator, asked the panelists whether investment arbitration processes should make greater use of alternative dispute resolution (ADR), given its success and prominence in the United States. Ms. Richard noted that while investors often prefer alternative dispute resolution methods such as mediation, states do not. They find that settlement is politically costly and they prefer to obtain the political cover that comes from being bound by arbitrators’ decisions.

Judge Brower has, among other positions, served as a judge of the Iran–United States Claims Tribunal in the Hague, the Netherlands; a Judge Ad Hoc of the Inter-American Court of Human Rights; and as a leading arbitrator.

Judge Brower began his talk by discussing recent “assassination attempts on the system” of international arbitration. He cited Profiting from Injustice, a recent report by the Transnational Institute that is highly critical of international arbitration. Bolivia, Venezuela, and Ecuador have all withdrawn from ICSID; Venezuela has taken the further step of denouncing all bilateral investment treaties (BITs). Australia’s current Labor government, too, has announced that it will no longer enter into treaties providing for international arbitration.

These critics claim that investor–state arbitration is “antithetical to sustainable development” and imperialistic, Judge Brower said. Yet “the critics are operating totally based on emotion and not on data, not on fact.”

Southern states have signed many BITs between themselves, Judge Brower pointed out, and the terms of those treaties are not much different from those signed with countries in the global north. Moreover, studies suggest that BITs produce investment and are positively correlated with foreign direct investment.

Another criticism of arbitration panels is that arbitrators—“yours truly and others,” as Judge Bower put it—are prejudiced against states. The late President Hugo Chávez of Venezuela claimed in a speech made in early 2012 that ICSID tribunals sided with investors 232 times out of 242 in 2010. But this is not true, Judge Brower argued. ICSID’s own statistics [pdf] show that, of all cases decided up until June 30, 2012, investors only won in 48% of cases. In 22% of cases, tribunals declined jurisdiction; they dismissed all claims in 29% of cases; and dismissed claims as manifestly without merit in 1% of cases. Judge Brower mentioned a study from 2009 by Susan Franck that came to a similar conclusion.

Judge Brower also responded to critiques of particular cases, noting that “the fact that someone disagrees with the result does not necessarily mean that it is wrong, let along that it is the result of prejudice.”

Finally, Judge Brower took aim at critics of international investment arbitration who claim that investment treaties limit democracy and the freedom of action in the host state. Treaties, he noted, are an exercise of a state’s sovereignty—“that is a principle so well established that it is beyond serious doubt”—nor, he said, has he “seen evidence to the effect that governments fail to act because they are afraid of what will happen to them under the treaty.”

What is worse than leaving the system? Tinkering, said Judge Brower. He was particularly critical of proposals to create a sitting appelate tribunal, noting that this may lead to greater politicization as arbitrators jockey for appointment by their states. By contrast, the current system of serving as an international arbitrator “is the highest merit system you can imagine.” He added, “You’re never better than your last case.”

Major international legal instruments commit international law to protect language rights absolutely, irrespective of counter-pressures toward linguistic uniformity. This unconditional commitment to language rights is echoed in the writings of prominent human rights scholars, who argue that language is a constitutive element of cultural identity. This article contrasts the ideals of language rights with the actual record of their enforcement. It presents a detailed analysis of the 133 cases that have come before the European Court of Human Rights, the U.N. Human Rights Committee, and the Inter-American Court of Human Rights dealing with language issues as they arise in
(i) education, (ii) court proceedings, and (iii) communications with the government. The analysis demonstrates that the decisions of international judicial or quasi-judicial bodies in language protection cases have consistently favored linguistic assimilation, rather than the robust protection of linguistic diversity that is formally espoused. Instead of strong language guarantees, only transitional accommodations are offered in the public realm for those as yet unable to speak the majority language. This jurisprudence treats minority language not as a valuable cultural asset worthy of perpetual legal protection, but as a temporary obstacle that individuals must overcome in order to participate in society. The legal decisions take a narrowly utilitarian approach to language, forcing the state to accept the use of minority languages only insofar as they facilitate communication with the majority and with the official bodies of the state. The paper concludes with a commentary suggesting that treating language interests under the rubric of human rights, however valid and worthy they may be, cannot be normatively defended.

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Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy’s consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law.

This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed “supremacy.” Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state’s consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state.

To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a “duty to inquire” to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law’s traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.

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This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through domestic constitutions.

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This Article examines the widely practiced—and widely ignored—phenomenon of “international vote buying” among states, that is, conduct whereby states offer material benefits to other states in exchange for their votes or decisions in international institutions. Domestically, such behavior would be patently illegal as bribery or election fraud. Yet under international law, it is both legal and relatively routine. Should this be so? Is vote buying corruption, or an acceptable feature of international relations? Scant attention has been devoted to these questions; this Article therefore represents a modest attempt to fill that void. Building on insights from the domestic sphere, this Article presents a new normative framework for assessing international vote buying. In so doing, it aims to foster debate about this important and underappreciated phenomenon, as well as to reassess our intuitions about the nature of international decisionmaking.

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Immanuel Kant’s 1795 essay, “To Perpetual Peace: A Philosophical Sketch” (Zum ewigen Frieden), established a concept of cosmopolitan law as the nemesis of war, instilling in generations of thinkers and practitioners a vision of a world without conflict. Kant’s paradigm posited that “republican constitutions, a commercial spirit of international trade, and a federation of interdependent republics” would provide the basis for a “perpetual peace” amongst states bound together under international law. Yet cultural relativists since the time of Kant have argued that only certain nations—namely those with a “Europeanized” culture—are capable of coming together to secure this lasting peace.

This Article seeks to challenge such claims and assess the contemporary relevance of Kant’s “perpetual peace” under international law in light of one of the most important geopolitical developments of our time: the rise of China. It is clear today that efforts to secure an enduring world peace without China have limited prospects for success. Amidst this reality, the Article argues that historical and contemporary claims regarding the irreconcilability of the Kantian paradigm with Chinese thought are inaccurate and incomplete. It presents evidence to rebut these cultural relativist arguments by identifying sources of resonance with Kant in classical Chinese political philosophy; highlighting Chinese scholars’ ongoing engagement with Kant’s writings over the past century; and revealing trends in recent Chinese scholarship and foreign policy discourse that support Kantian liberal internationalism.

Finally, the Article demonstrates that modern China is increasingly committed to two pillars of the Kantian project, international institutions and commercial interdependence, but concludes that the rising power must develop a missing third pillar—liberal democracy—if it is to strengthen its normative commitment to international law and participate in a lasting peace amongst states. China’s fate and the future of international law thus appear inextricably tied.

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Jason Webb Yackee’s thoughtful article, Controlling the International Investment Law Agency, is an important contribution to a growing literature on the question of the legitimacy of the international investment law (IIL) system, and, in particular, investor-state arbitration, which is largely the focus of his article.  Rather than taking a for-or-against position on the IIL system in its present form, Professor Yackee proposes that we accept the system as it exists and analogize it “to a domestic-law administrative agency in which significant policymaking authority is transferred from political organs to expert decisionmakers who are charged” to effect “the promotion and protection of foreign investment.”  In viewing the IIL system through this lens, Professor Yackee argues that the system’s major weakness—“the lack of sufficient mechanisms of state political control”—is laid bare, and that the state can, in his view, be reinserted to “sit at the top of the decisional hierarchy” through application of administrative-law principles.  The state is “re-stated” (my word, not his) at the center of the IIL system by recognizing that the system is a political one that needs political checks, and those checks are provided by states.  In Professor Yackee’s view, principles of administrative law point the way to a partial solution—“the adaptation of notice-and-comment and legislative veto concepts to the dispute resolution process.”  The idea is that viewing the IIL system through the lens of administrative-law agency provides a potential solution to the question at the heart of the system itself:  what role should the state play in IIL, especially in the investor-state context?

In this response, I do three things.  First, I examine whether there is a problem with the IIL system that needs an administrative-law solution.  Second, I explore whether the analogy to administrative law helps solve the putative problem.  Third, I offer some concluding thoughts to encourage the consideration of more than state interests in evaluating the IIL system.

“Targeted killings are not a new practice – governments have long sought to prevail over their enemies by engaging in premeditated killings of individual suspects. What is new now is the rapid development and proliferation, and increasing deployment, of technologies which permit such killings to be carried out with greater ease and with little immediate risk to one side’s citizens, together with concerted efforts by some to offer general legal justifications for current targeted killings practices, and, in some cases, to attempt to redefine existing legal frameworks to expand the circumstances in which such killings may be carried out ‘lawfully.’

“Current targeted killings practices and the attempts to legally justify those strikes present a challenge to the systematic protection of the right to life under international law. We are now witnessing a significant effort by some states to insulate their “targeted” uses of deadly force from international scrutiny and to redefine international law in order to serve narrow and short-term interests. This presents a serious risk of leaving everyone less secure, particularly if other states around the world, as they acquire the new technology, claim for themselves the same expanded rights to target their enemies without meaningful transparency or accountability.

“The challenge is to ensure that strong protections of the right to life under international law survive the practices of a few states, technological developments, and outlier attempts to redefine core legal standards.”

Concluding that the law enforcement model for preventing cyberespionage is ineffective, this article proposes a modified strategy that expands the process of responding to online economic espionage by allowing retaliation by a victim after it had analyzed the attack and determined with the necessary level of confidence that it came from a particular nation-state and, if possible, that it originated from a particular source. If the victim could, at a minimum, determine the location from which the attack originated, offensive economic espionage would allow it to launch a responsive act of economic espionage against an appropriate entity in the host state.

This brief commentary considers the potential effect of a territorial state’s international human rights obligations on the law governing targeted killings. It posits that these obligations should limit permissible attacks by an attacking state when the territorial state is not party to an armed conflict with the relevant non-state actor, particularly when a territorial state consents to the attacking state’s actions. It also argues that a territorial state’s extraterritorial human rights obligations provides support for an attacking state’s right to resort to force in the territorial state when it fails to suppress a resident threat. It concludes by briefly suggesting that recognizing the necessity of effective governance to the preservation of human rights could prompt the development of an international law of ungoverned spaces, perhaps best thought of as “international martial law.”

Law, by its nature is not static, but dynamic. This creates questions of interpretation of documents or institutional arrangements that have been shaped or taken place hundreds of years ago or under different legal and factual circumstances. In U.S. constitutional law, this discussion has been framed as the “living constitution” debate. Could there also be an equivalent “living constitution” debate in international law? The answer appears to be yes.

The U.N. Charter is largely viewed as an international constitution. Moreover, on account of the views held by various international judicial organs, international documents are subject to an evolutionary interpretation. The Charter is a “living” constitution, in essence introducing a “living international law” debate. This is reinforced by voices in international theory calling for international law’s “functional” reading. This functional element is nothing more than a re-baptized dynamic approach to the international legal framework.

Such an approach is sometimes called for by the exigencies of international developments. In a highly decentralized international community, this “living international law” debate faces the danger of losing its vigor. This debate must be included in a more general, systemic framework. Detailing how these dynamic interpretational endeavors have to take place in order not to end up being arbitrary and norm-destructive.

This holds a particular importance in international law fields which have traditionally appeared to be highly positivist. It is these fields, where change is bound to meet hurdles and where the incorporation of new elements is not self-evident, that provide the best indicator of if and how the living international law continues to respire. The law of occupation is such a field. It has been traditionally more reserved and reluctant to flexibility. Two recent cases seem to portray the opposite; both of them involve prolonged occupations in the Middle East. The present note will analyze how they aspire to influence the law of occupation, with human dignity concerns being posed as the outmost limit of any dynamic interpretation endeavors

Moreover, the fact that human dignity serves as a guiding principle and ultimate limit in an international legal field not prone to change, awards a modulating role to the notion. International law is interpreted and shaped under its lens, the same way human dignity appears as a guiding principle in domestic constitutional orders. Thus, the dynamic approach of the law of occupation signals the dawn of international thematic constitutionalism.

Within international law, international investment law (IIL) has become one of the topics that is en vogue. This follows on the heels of two interrelated developments. First, the proliferation of international investment agreements (IIA), most in the form of bilateral investment treaties (BITs), others forming part of more encompassing trade and investment agreements. Second, following this increase in investment protection for investors, there has been a surge of cases that have been adjudicated before international investment tribunals.

The increasing practical importance of IIL has been accompanied by a (still) growing number of academic contributions. Adding to this literature is Jason Yackee’s Controlling the International Investment Law Agency, which makes an important contribution to this field—while steering clear of the controversy over whether the system is overly friendly towards investors. This brief comment will first outline the main arguments of Yackee’s article (I.) and then critique some of the arguments it makes, specifically around whether there is indeed a functional IIL agency and Yackee’s comparative analysis with domestic administrative agencies (II.), before offering some concluding remarks (III.).

A footnoted version of a speech delivered by Harold Hongju Koh, Legal Adviser, U.S. Department of State, on September 18, 2012, at the USCYBERCOM Inter-Agency Legal Conference on the Roles of Cyber in National Defense, at Fort Meade, Maryland.

In 2011, the White House issued the International Strategy for Cyberspace, which noted that “[t]he development of norms for state conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete.  Long-standing international norms guiding state behavior—in times of peace and conflict—also apply in cyberspace.”  However, the document cautioned that the “unique attributes of networked technology require additional work to clarify how these norms apply and what additional understandings might be necessary to supplement them.”

On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace. At a conference sponsored by United States Cyber Command (USCYBERCOM), Mr. Koh offered brief answers to what he labeled the “fundamental questions” on the issue.  He also identified several “unresolved questions” with which the United States would likely be forced to grapple in the future.  Since the speech had been fully cleared in the interagency process, it can be viewed as reflecting the U.S. Government’s views on the issues, not just those of Mr. Koh or the State Department.

The timing of the speech was propitious.  Less than three weeks earlier, NATO’s Cooperative Cyber Defence Centre of Excellence (CCD COE) had released a draft the long-awaited Tallinn Manual, due for formal publication in early 2013.  The Manual is the product of a three-year project sponsored by the Centre in which an “International Group of Experts” examined, inter alia, the very issues cited in the Koh Speech.  Participants included distinguished legal academics and practitioners, supported by a team of technical experts.  USCYBERCOM, the International Committee of the Red Cross, and NATO each provided an observer who participated actively throughout the project, albeit in a non-voting capacity.

The Tallinn Manual consists of “rules” adopted unanimously by the International Group of Experts that are meant to reflect customary international law, accompanied by “commentary” that delineates their legal basis and highlights any differences of opinion among the Experts as to their interpretation in the cyber context.  A select group of peer reviewers offered comments on the various drafts, as did a number of states that were willing to informally and unofficially do so.  The author served as Director of the Project.

The relative congruency between the U.S. Government’s views, as reflected in the Koh speech, and those of the International Group of Experts is striking.  This confluence of a state’s expression of opinio juris with a work constituting “the teachings of the most highly qualified publicists of the various nations” significantly enhances the persuasiveness of common conclusions. Of course, the limited differences that exist as to particular points of law render the respective positions on those points somewhat less compelling.

This article serves two purposes.  First, it functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual.  The comparison is particularly apropos in light of the parallels in their content.  Second, drawing on the Tallinn Manual, the article provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech.  In doing so, it usefully catalogues the various competing interpretive perspectives.  The article is crafted around Mr. Koh’s “Questions and Answers,” which are reordered topically and set forth at the beginning of each section.