The Malaysia Airlines Tragedy and International Law – Postscript

I promise to return to “regularly scheduled programming” soon, but for reasons which I alluded to in my first post in this series, my free attention has been fixed on the downing of Malaysia Airlines Flight 17 (MH17) and the international response to it. My intention with this series was to clarify, in as simple of terms as possible, the primary international legal issues brought up by this tragedy, including what, if anything, will be done to bring the perpetrators to justice. While we are a long ways away from knowing the full story, new details are increasingly suggesting that the Russian state, directly or indirectly, had some involvement in the destruction of a commercial airliner and the deaths of 298 human beings. In this final post I want to touch on a few hypotheticals and address some questions I have been asked in other forums about the legal fallout to this tragedy. At this point I am still inclined to write a great deal in pencil, but I do think there is enough hard “stuff” out there that we can begin thinking seriously about what type of legal response can be expected.

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Appeal of the Chaldean Patriarch

Note: Earlier today the Sons of the Most Holy Redeemer (F.S.S.R.) (Transalpine Redemptorists) posted on their blog an urgent appeal of Patriarch Louis Raphael I Sako, Chaldean Catholic Patriarch of Baghdad, concerning the plight of Christians living in and around the Iraqi city of Mosul. On their Facebook page, the F.S.S.R. expressed regret that this letter has not been widely disseminated online. In an effort to bring more attention to it, I am copying the full text below. Please share.

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The Malaysia Airlines Tragedy and International Law – Part Three

In this my third and final post (for now) on Malaysia Airlines Flight 17 (MH17) and international law, I will look at assigning civil liability for the crash and which party will ultimately be left footing the bill. This is not an easy matter to unravel and it could take the better part of a decade or more to sort everything out, especially if any of the blame can be assigned to Ukraine or Russia (more on that in a moment). As it stands right now, I am writing under the already well-supported assumption that pro-Russian separatist militants operating in eastern Ukraine were the ones who launched the missile strike that brought down MH17. The unknown which may, or may not, alter the nature of my analysis is if Russian military forces were involved and to what extent.

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The Malaysia Airlines Tragedy and International Law – Part Two

In this second, and shorter, entry on the Malaysia Airlines Flight 17 (MH17) tragedy and international law I want to focus on a common misconception which I tried to dispel to some news outlets yesterday, namely that the International Civil Aviation Organization (ICAO)—or any other global body—has the authority to shut down a country’s airspace. In a forthcoming post I will look to the complicated matter of assigning civil liability for the downing of MH17.

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The Malaysia Airlines Tragedy and International Law – Part One

This entry will be a little offbeat from I normally post here. As some of you know, I am a trained lawyer with a background in international aviation law and policy. In fact, I recently co-authored a treatise on the topic for Cambridge University Press. It should probably come as no surprise then that the recent tragedy in eastern Ukraine involving Malaysia Airlines Flight 17 (MH17) has set my mind to pondering some of the international legal issues involved. Unfortunately, when I tried to explain some of those issues to several media outlets yesterday, they weren’t interested. Terrorism, weaponry, and gore were the primary topics of our conversations, and I couldn’t really speak to any of them. Thankfully my appearances on the local NBC affiliate allowed me to discuss briefly some substantive details surrounding the crash, specifically why MH17 opted to fly over a conflict zone and what the commercial fallout might be. For those interested, the following are some of the more compelling legal issues raised by the MH17 tragedy. Very few of them have been reported and some of the reporting has been inaccurate.

I imagine there will be two or three posts coming that will cover these issues. In this one I will focus solely on the commercial airspace issues involved, along with the primary national security interests that may be in play here. I will try to keep this jargon free and nontechnical.

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Remember The Josias

Last week I mentioned a new venture, The Josias, which I will be contributing to in the near future. After getting some technical matters out of the way, including a new web address, The Josias is starting to host fresh content. For those interested in the purpose behind the site, here you go:

Here we have endeavored to collect some writings which may be useful in improving the understanding of justice and the common good. We know that what is said here may seem strange and unwelcome, disconnected from the questions disputed among the Great and the Wise of our time: but we are not writing a mirror for princes, and hope that we may observe those things the more clearly in whose outcome we are the less invested.

Here are some links to the latest posts.

The Crony Capitalism Claim

The latest issue of First Things, which isn’t even highlighted on their website yet, features an article by Acton Institute Director of Research and “Tea Party Catholic” extraordinaire Samuel Gregg entitled “Catholic Blindness.” Without getting into the details of the piece here (that’s for another time), let me note that for those who have followed the general trajectory of Acton’s apologetics for free markets and small government, the article doesn’t break any new ground. In fact, it’s more-or-less an advertisement for Actonism and perhaps part of a campaign to ramp-up interest in Acton University for 2015. Anyway, lurking behind Gregg’s pro-market apologia and, indeed, most of the ideological rhetoric that emanates from the Acton Institute is the specter of crony capitalism, an intentionally slippery concept that is mean to instill fear in the hearts of anyone who believes there is a legitimate—indeed necessary—role for government in the operation of the economy. I call the concept “slippery” because it can be, and often is, quietly expanded and retracted over the course of a single exposition in order to meet an array of critical challenges. Moreover, as I will discuss more below, it is far from clear that crony capitalism describes a new phenomenon—one which is distinct from capitalism per se or, at least, any form of capitalism which has actually existed in the real world. There’s apologetic utility in that. For if every critique of capitalism is not a critique of “real capitalism” but only “crony capitalism,” then the espousers of “real capitalism” are free to continue promoting their ideology without fear of falsification. The irony, of course, is that Actonites and other free-market apologists—including Gregg in his First Things article—perpetually point to real world examples of what they claim is “real capitalism” (not “crony capitalism”!) at work to empirically defend themselves. And this is where the expansion and contraction of the crony capitalism descriptor really comes into play.

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