How International Law Really Works – And Why It Matters

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When I first joined the Foreign Office, a venerable legal adviser gave me sound advice on international law. He told me never to ask what I could do under international law, because the answer would be nothing. Rather I should tell him what I wanted to do, and he would compose me a legal justification. However, if I wanted to commit genocide, I needed to give him an extra week’s notice as that would be more complicated. This was not just diplomatic black humour. It was legal advisers in the British foreign office who subsequently constructed the legal justification for the NATO bombing of Serbia and Kosovo. There is, however, a more important point about how international law functions, and what that means for diplomacy.

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Neither the realists, who think that international law does not exist, nor the liberals, who think it an amplified version of domestic law, really understand how international law functions. Hedley Bull’s concept of the international community, to which countries want to belong, captured it much better, as those who have done diplomacy understand. I have yet to encounter a government that asks its officials what international law says that it should do. Rather the government establishes the actions that national interest dictate, and then seeks advice from its officials and diplomats how those actions can be made to appear to accord with international law. Governments are not concerned with obeying international as much as with appearing to do so. Although this may appear unduly cynical, and betraying an amorality almost equivalent to that of the realists, in fact this way in which international law functions does provide a significant limitation on what governments can do.

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The Russian invasion of the Crimea and the destabilisation of eastern Ukraine provide an example. Although much western media tends to portray Putin as an authoritarian dictator who ruthlessly pursues Russian interests without thought for international law or human rights, this is not altogether true. Putin has his own image of himself as a moral actor, however much we may disagree, and of Russia as a major international player. Although he may not be shy of the ruthless pursuit of what he perceives as Russia’s interests, he wants to do so with at least the appearance of obeying international law. The Crimea was secured by Russian forces without insignia at the “request of local people”. The Crimea was annexed only after a referendum voted in favour of it becoming part of Russia. Putin repeatedly denied the presence of Russian regular forces in eastern Crimea. We may know this is all a charade, but it was important for Putin to appear to be behaving with at least some kind of international legality, in this case calling on the principle of self-determination (which we ourselves had used not long before to justify the independence of Kosovo). This need for the appearance of legality constrained what Putin was able or willing to do in the Ukraine. Although most military experts believe that the Russian army would have easily and quickly over run the whole of the Ukraine, Putin was unwilling to do so. To have done so would have put Russia outside the international community, and destroyed any pretence of international legality in Russian foreign policy.

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There are some important points here for how we do diplomacy in the 21st-century. Firstly, we must think very hard before expelling any state from the community of nations. Once a government feels itself outside that the community, it no longer needs to maintain the pretence of obeying international law. At that point the self constraint which international law encourages disappears, and the country becomes a more dangerous and unpredictable international actor. Conversely, there is much to be said for bringing countries within the international community wherever possible. I have argued in a previous blog that we should do this with North Korea. Once North Korea feels itself a full member of the international community, and its diplomats are socialised into the international community of diplomats, the incentives will increase for appearing to behave legally. While this might not get rid of North Korea’s nuclear weapons program (which is in any case in part a response to the incoherence of western policy) it could discourage their use. Secondly we should accept that the functioning of international law is messy, far from consistent and subtle. We should not obsess about its rigid application lest we exclude more countries from its embrace.

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This may have particular application in cyberspace. This is the subject for another blog. However, at present we confront the risk of cyberspace developing as a Hobbesian world of all at information warfare with all (not to mention other forms of cyber warfare and cyber espionage). One of the objections to negotiating protocols or norms of behaviour in cyberspace is that you cannot know if a country is obeying them, and that there are many international actors you cannot trust. However, if we see international norms and protocols as social constructs, rather than rigid legal systems, which countries want to be seen to be following, we might make better progress. If Russia’s or China’s (or the US’) behaviour in cyberspace is seen as just as an important element in their pretence to international legality as their behaviour in the real world, it could serve to constrain that behaviour. As ever in diplomacy, the outcome is not perfect, but it might just be good enough.

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The EU is Wasting Money on Strategic Communication

 

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The EU has announced that it will provide an extra €1 million funding per annum to the East Stratcom Unit. The Unit was established in 2015 to counter fake news and hybrid information warfare emerging from Russia. The additional funding is a waste of EU money, and shows only the extent to which the EU does not understand the fake news issue or how to counter it. The East Stracom Unit has achieved little, and will achieve little more with the extra money. What the EU needs to do is to develop effective public diplomacy strategies. But that looks a long way off, even if the EU can bring itself to understand the concept of public diplomacy.

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First let us dispose of this nonsense about strategic communications. It is another one of these buzz terms, like nation branding, which enable its a proponent to make good money as consultants, but is no more than snake oil. There seems to be a general view at the moment that by putting the term strategic in front of a noun you somehow create something deep and profound. But strategy implies agreed objective or preferred outcomes which the strategy is designed to implement. This is not true of any aspect of EU external policy, and especially not true of EU policy toward Russia and the east. For example, the EU has no agreed outcome for it sanctions against Russia, other than the unrealistic withdrawal of Russia from the Crimea. Given that this is not going to happen, it is hard to see what the sanctions are designed to do, other than punish Russia and possibly lead to political or economic collapse. It is hard to see how this outcome would benefit the EU. It is also difficult to discern any deeper EU objective in Russia, other than the surreal hope that it will one-day convert itself into a European post modern and democratic state. Given that the EU has no agreed objectives or preferred outcomes for its policy towards Russia, there can be no strategy to achieve them, and talk of strategic communication is therefore nonsense.

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Of course, in reality, strategic communication is no more than propaganda, or in this case counterpropaganda against fake news, by another name. Calling counterpropaganda strategic communication makes it sound better, but no more credible to its intended audience. The EU appears not to have heard of the phenomenon of echo chambers, whereby people listen only to the news and views with which they agree. It is the echo chambers, reinforced by social media and the algorithms that drive them, which make fake news so powerful. There is an illusion in Europe that we are credible because we are European, and presumedly because we are nice guys. This European discourse that we are reasonable and correct, and that this will be recognised by others, no longer cuts the mustard in the 21st-century. European values and ideas are being contested by alternative cultures and histories across the globe. They are no longer considered universal by much of the world’s population. The challenge is to the universality of European values combined with echo chamber effect poses major, possibly insurmountable, problems for the EU’s East Stratcom unit. Promoting European values and ideas in a multipolar world of echo chambers requires long-term engagement, dialogue and debate, not the unidirectional monologue of strategic communication.

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In short, the EU is no longer trusted because it is the EU. The counterpropaganda of the East Stratcom unit will be credible only to those already inclined to doubt the fake news it is trying to contest. Those inclined to believe Russia’s fake news will see the outpourings of the Stratcom unit as merely the Europeans’ own version of fake news. As I have argued in a previous blog, this becomes one of the major problems of 21st-century diplomacy, and in particular public diplomacy: how to break down the echo chambers which are increasingly being reinforced by the algorithms driving social media. The challenge for diplomats is how do you get to those who disagree with you. If you cannot reach them, you have no chance of convincing them to change their mind. On the other hand, there is little point in expending large sums of money simply to reach those who are already inclined to agree with you. The EU’s decision to reinforce the Stratcom unit rather than invest in effective public diplomacy suggests that it has little idea about the problem, let alone the solution. Strategic Communication needs effective prior Public Diplomacy to be credible. But the propagandist nature of Strategic Communication undermines Public Diplomacy.

We Need to Talk About Algorithms

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Algorithms are becoming increasingly important to diplomacy in the 21st-century. Yet few diplomats understand them, and even fewer understand their implications for the theory and practice of diplomacy. In this blog I will look at them in two particular contexts: geopolitical analysis and public diplomacy.

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The value of big data in the analysis and of likely future developments is evermore touted by artificial intelligent experts. The private sector is already making extensive use of big data in market and product analysis. Different approaches to predictive and prescriptive analysis are being developed. It is inevitable that governments too will increasingly rely on big data analysis to understand geopolitical trends and the reactions to their policy initiatives. The latter could be a particularly tempting solution to the challenges of evaluating the impact of public diplomacy. However, there are two problems: more information does not always make for better analysis; and big data analysis depends on algorithms which the users of the analytical product may not understand.

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When I worked in Beijing I recall being invited to the Political Section of the US Embassy to exchange views on where China was going after Tianmen Square. It was a depressing place. Concerned that the Chinese would be spying on them, there were no windows and no natural light. However, what it lacked in natural light it made up in the enormous quantities of data about economic and agricultural development from across different Chinese provinces. The quantity of data was exponentially greater than what we collected in the British Embassy. However, I was not, and am not, convinced that it led to better analysis. Drowning in detail, many of the American political officers could not see the big picture or broader trends, which is what both of our political masters needed. Over the years I have been in many discussions about what makes a good political analyst. I have concluded that it is the knowledge of the subject that comes from years of experience, that gives the analyst an instinctive grasp of what she is looking at, combined with a capacity for self criticism which enables her constantly to question her own conclusions. Excessive data is not good for either.

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It is clear that the vast quantities of data available on the Internet are vastly too great for any human analyst, or group of analyst, to manage. This is where algorithms come in. Algorithms allow the data to be scanned for key trends or indicators relating to current and future development. Ironically, the first effort at this kind of big data analysis work carried out by the KGB in the early 1980s. Concerned that President Reagan was preparing a first strike attack against the Soviet union, KGB Rezidenturas around the world were instructed to collect information with certain key factors being identified as predicting an attack. The failure of this exercise, which nearly led to nuclear war, should serve as a warning for big data advocates today. KGB had in effect created their own algorithm, although without the technology that accompanies it tod. The problem was that the algorithm was biased towards the prejudices and presuppositions of those who designed it. It remains a key problem.

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Someone has to design the algorithm. The way in which the algorithm is designed and structured will affect analytical output from scanning the data. Algorithm design and construction is highly technical. How many diplomats understand how algorithms function or how they are designed? If you do not know the basis on which the algorithm is designed, and what epistemological biases are operating in that design, you do not know how reliable the output is. Most policy officers, and government ministers, relying on the big data analysis for their policy decisions will see the algorithm only as a magical black box. Because it is not human, they will regard it as more objective, over-looking the subjective element in its design. They will have excessive confidence in its conclusions.

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It is not only a question of accuracy. One of the major problems in policy-making is the phenomenon of groupthink. Once a particular analytical or policy framework has been established within a group, no one is inclined to question it and it will continue even when evidence from the world contradicts it (I have written previously about this in the context of the former Yugoslavia). The danger is that big data analysis, dependent on its algorithms, will reinforce the epistemological framework created when the algorithm was designed. In other words the use of algorithms in big data analysis could reinforce the phenomenon of groupthink.

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Challenging existing analytical frameworks is a major problem in foreign policy making. Foreign ministries, in my experience, are really not very good at sitting down and questioning their analytical assumptions about the world. They are no better at questioning the policy that is constructed on the base of that analytical framework. This is why the US in particular has developed the technique of red teaming to question assumptions and prejudices. The term comes from war gaming during the Cold War when the red team was the Soviet Union (and the blue team was NATO). The task of a red team is to challenge all the assumptions behind the analysis and decisions in a particular policy area. It tests the analysis or policy recommendation to the point of destruction. It gives policymakers a better idea of how good the analysis is or how resilient is the policy. The issue becomes how can we red team algorithms. Do we need analysts capable of understanding the inside of the algorithms, or do we need to develop algorithms that themselves can red team other algorithms? If we cannot find effective ways by which analysts and policy makers can challenge the algorithms behind big data analysis, we are handing our destiny to those who designed the algorithms.

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Incidentally, this has happened before. One of the causes of the global financial crisis (or at least a major contributory factor) was the dependence of investment funds and banks on complex financial models. The models were designed by PhDs in maths and physics (“quants”) who knew little about the real economy. The executives who took the key investment decisions understood little, if anything, about how the mathematical models were designed or the epistemological biases they contained (this is captured when Kevin Spacey’s market trader in Margin Call complains he can’t understand the data on a screen). We could be in danger of creating a similar disjunct in Diplomacy.

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There is one further point worth bearing in mind about the use of algorithms and big data analysis. Algorithms by their very nature must be online. They must be integrated with the Internet where the data is to be found that they are analysing. However, this makes them inherently vulnerable to cyber attack. Redesigning algorithms online, changing the assumptions on which they are operating or the kind of trends they are looking for in the data, could be an effective way of undermining a rival’s analytical and policy-making capacities. This suggests that algorithmic big data analysis will not replace human analysts, who will still be needed to ensure that the algorithmic output makes sense when compared to the real world.

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Algorithms also pose problems for public and digital diplomacy. Foreign ministries have, with more or less enthusiasm, adopted social media as a valuable way of getting messages across to foreign publics. There are various problems with this. The obsessive focus on social media can result in success being measured in terms of likes and retweets rather than an analysis of impact on foreign publics. More important may be the role of algorithms in social media. All major social media companies have developed highly sophisticated algorithms to ensure that we receive the posts or tweets (and adverts!) that will most interest us. They will recommend to us friends or followers that are most likely to fit in with our existing social network. Facebook, for example, is unlikely to ever suggested a Donald Trump supporter as a friend for me. As has been frequently noted, this increases the echo chamber effect whereby we only exchange views with or receive information from people with whom we already agree. Over time, the effective operation of social media algorithms mean that the echo chambers get ever smaller and ever better defined. The impact is worsened by the growing number of adults who get their news from social media (Pew reports that 67% of US adults get news from social media, 20% often). The problem for public diplomacy is that if you are using social media to get your message across you are only going to reach those who already agree with you. It also means that agile non-state social media users can associate themselves with more popular causes to undermine a country’s public diplomacy. We may have seen that to some extent with the Catalan crisis, where Catalan separatists have been able to identify themselves with antiestablishment, anticapitalist and pro human rights operators on the Internet. On the one hand this has meant their successful entry into self reinforcing echo Chambers among these groups. On the other hand it makes it very difficult for the Spanish government to challenge the image been put across of an authoritarian Spain. The social media make it hard for the Spanish government to break into these echo chambers.

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The fragmenting of foreign public opinion into ever more restricted echo chambers questions the entire purpose of public diplomacy. Whereas in the past diplomats could engage with media in a foreign country knowing that they could reach the majority of the population, now no such assumptions can be made. As public opinion fragments so does public diplomacy. More sophisticated digital diplomats try to get round this by using hashtags and other ways of reaching out across the echo chambers. But this is not guaranteed to work either. As Ilan Manor recently pointed out (https://digdipblog.com/2017/10/20/the-personalization-of-digital-diplomacy/) social media algorithms are increasingly personalising what we receive, so that the context in which each individual receives her posts is now very different. This shapes the context in which information put out by government is received by individuals, and how those individuals interpret it. It makes a great deal of difference if I see a government or embassy post on Facebook immediately after a heartwarming clip of dog or a heart rending clip of the wreckage of Raqaa. This suggests that future diplomats will have to be far more aware of how social media algorithms function, and ways of gaming them. This applies equally to search machines, where far right groups in the past have shown their ability to game how they work to ensure that material comes up first on Google searches.

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The upshot of these examples from geopolitical analysis and public diplomacy suggests that tomorrow’s diplomats must be much more aware of how algorithms work and better trained in making use of them. This is all the more important given the apparent Russian success with Bot factories in placing their interpretations or events in western social media.