Spring 2018 Issue of Harvard National Security Journal

The Harvard National Security Journal’s spring issue, published last week, has five articles that may be of interest to Lawfare readers.

Jonathan Wakely and Andrew Indorf propose foundational principles to guide CFIUS reform, which congressional committees are currently debating. Reform based on their principles would seek to ensure that the United States continues to welcome foreign investment while protecting national security. The authors evaluate specific proposed reforms, paying special attention to the Foreign Investment Risk Review Modernization Act, introduced in November 2017.

Rebecca Crootof argues that analogies often used to describe autonomous weapon systems (AWS) misrepresent their legally salient traits and limit our conception of how AWS might develop. She suggests that because analogical reasoning fails in this realm, new supplemental law is needed to appropriately and effectively regulate AWS.

Anthony J. Colangelo asserts that an order to strike with nuclear weapons to achieve a military objective would likely be manifestly illegal, if the strike were near civilians and conventional weapons could achieve a similar result. Failure to disobey such an order would be a war crime, he suggests, no matter whether the order were given and carried out by state or non-state actors.

Federico Fabbrini examines the relationship between EU budgetary constraints and NATO defense-spending obligations. He argues that EU budget rules do not legally prevent EU member states from fulfilling their NATO obligations, but make it politically difficult to do so. The article also considers whether a broader European defense union could overcome the problem of European defense underspending and revive the transatlantic alliance, which President Trump has questioned.

Sean Fahey analyzes Russia’s regulation of the Northern Sea Route, which may unlawfully limit navigational rights and freedoms at a time when diminishing Arctic sea ice is increasing international shipping activity in the region. Fahey asks whether state practice could further undermine the freedom of navigation in the Arctic: Few flag states are protesting Russia’s NSR regime, and Canada is following Russia’s expansive regulatory lead in the waters off its own Arctic coast.