Apr 9, 2012 | Article Responses
The principle of complementarity, which governs the International Criminal Court (ICC), will inevitably require some difficult determinations about whether a national proceeding warrants deference. One may discern in the literature three major theories about what the ICC should scrutinize when it assesses a national proceeding: the nature of the charges laid, the severity of the sentence imposed, or the quality of the process adopted. These three approaches are not necessarily mutually exclusive; they can be combined in different ways and with different emphases to create plausible schemas.
Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion.[1] He advances an important and convincing critique of approaches that would focus on the domestic or international nature of the charges or on the relative gravity of the charges.[2] He proposes to replace such approaches with one focused on the sentence.[3] While Professor Heller may be successful in showing that a sentence-based approach is superior to a charge-based approach, I will argue that a sentence-based approach also raises some serious difficulties that have not been addressed. I will therefore suggest a third option, a process-based approach. I believe that a process-based approach is not only the best fit with the Rome Statute (the positive law); it is also the most elegant theory.[4] Under a process-based approach, the Court can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process.
While I have reservations about the more radical proposal to adopt a new approach to complementarity that focuses exclusively or even primarily on sentence severity, I believe that A Sentence-Based Theory of Complementarity offers two important insights. The first demonstrates the very limited role that should be accorded to “charges.”[5] The second demonstrates the potentially important role that can, in some circumstances, be accorded to “sentences.”[6] I would absorb these insights into a process-based theory.
Heller also raises concerns about the “same conduct” test adopted by the ICC.[7] Similar concerns have been raised in other recent thoughtful scholarship,[8] so it is valuable to inspect the concerns here. While I agree that some flexibility is needed, I hope to show that the problem is actually much narrower than is often perceived in the literature. The Rome Statute already provides solutions to the scenario where a state wishes to prosecute a person for a different crime. These solutions include a consultation mechanism to prioritize cases as well as the “interests of justice” test. In my view, stretching the admissibility regime to cover such scenarios is not only unnecessary but would generate incoherencies. Thus, while I partly agree with the concerns raised by Heller and others, I will argue for a much narrower solution.
All references to “admissibility” in this comment concern the complementarity aspects of the Rome Statute—Article 17(1)(a)–(c))—and not the distinct issue of “gravity” (Article 17(1)(d)).
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[1] Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 85 (2012).
[4] Rome Statute of the International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
[5] See generally Heller, supra note 1.
Apr 9, 2012 | Article Responses
David Landau’s article, The Reality of Social Rights Enforcement,[1] is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable.[2] Not “whether,” but “how” is the question now on the table among serious scholars and judges.
Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms—individual actions primarily seeking individual-level affirmative relief,[3] negative injunctions, weak-form review, and structural injunctions—and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure.[4] Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.
As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles.[5] Many of the world’s poorest nations have severely limited internal economic resources.[6] Political obstacles are substantial even when resources are available or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small.[7]
One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights. Yet, as Landau persuasively argues, individual actions are likely to provide social and economic rights primarily for those in the middle classes, not for the least advantaged.[8] The reason is that those in the middle classes are more likely than the least advantaged to have the ability to mobilize the legal system in an individual action. They have the requisite knowledge and have access to legal assistance to bring these actions. In short, they have a better “support structure” for securing rights, to use political scientist Charles Epp’s term.[9] Landau acknowledges that nongovernmental organizations and similar agencies, some associated with the state itself, can provide education about legal rights and legal assistance to the least advantaged.[10]However, the resources devoted to such efforts are unlikely to overcome the structural advantages the middle classes have in individual actions.
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[1] David Landau, The Reality of Social Rights Enforcement, 53 Harv. Int’l L.J. 189 (2012).
[2] The United States is an exception for two perhaps related reasons. First, the U.S. Constitution is an old one, written before the political and ideological developments that fueled the inclusion of social and economic rights (and, now, cultural and environmental rights) in more recently written ones. Its text provides fewer resources for developing constitutional arguments for judicially enforceable social and economic rights. “Fewer,” though, does not mean “none,” and Cass Sunstein has suggested that only Richard Nixon’s narrow victory over Hubert Humphrey in 1968 prevented the Supreme Court from crafting a substantial jurisprudence of social and economic rights. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever 149–72 (2004). Second, the general weakness of the social democratic tradition in the United States, which is both political and ideological, has meant that advocacy of judicially enforceable social and economic rights has been limited.
[3] I assume that individual damage actions would have characteristics similar to those Landau associated with individual-level affirmative relief.
[4] Landau, supra note 1, at 201.
[5] See generally Landau, supra note 1.
[6] For that reason, typical formulations of social and economic rights refer to their progressive realization within available resources.
[7] I note that fairly strict market-oriented policies might be the best ones to achieve the progressive realization of social and economic rights, at least on the level of political and economic theory. Advocates for social and economic rights usually reject that theoretical case. Notably, even that case might commend some judicial intervention in support of market-oriented policies—of the sort typically associated in the United States with Lochner v. New York, 198 U.S. 45 (1905).
[8] Landau, supra note 1, at 202–29.
[9] Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective ch. 3 (1998).
[10] See Landau, supra note 1, at 227.
Oct 31, 2011 | Article Responses
Olivier De Schutter’s The Green Rush: The Global Race for Farmland and the Rights of Land Users discusses how the conquest for arable land affects the local population in countries on the sell side of these transactions. He suggests three possible scenarios that may result from these transactions and explains why his reform proposal is superior to the others both on humanitarian and environmental grounds.
In these remarks, I will briefly summarize the main contributions of Professor De Schutter’s article. I will suggest that all three scenarios assume, at least implicitly, that the transactions can be explained in terms of simple market-based supply-and-demand models that reflect increasing food prices fueling a greater demand for land, filled by countries that have an excess of arable land and a need for foreign direct investment. Professor De Schutter suggests that there are costs involved with this model – indeed he points to classic externalities: those currently occupying or using the land – typically small peasant holders, herders, indigenous people and other marginalized groups that do not have much of a voice – will be dislocated. In addition, these transactions push towards large-scale agriculture, which is not necessarily the most environmentally sustainable form of land cultivation.
In my comments I would like to emphasize some points that may not be fully accounted for in this supply-and-demand scenario.
First, while the hunt for arable land for food may explain many of the large transnational land deals, they appear to be part of a deeper structural change – the emergence of a transnational real estate market. What explains this change?
Second, if the supply/demand story was sufficient for explaining transnational land deals, we should observe primarily countries with excess land getting into this market on the sell side. However, available data on transnational land deals suggest that many more countries are selling. Why is that? Conversely, on the buy side we should observe countries that cannot meet their current or future demands on world markets. However, this does not appear to be the case either. While many of the origin countries of major land acquirers – most of which are private – may face fuel or food shortage in the future, many other countries share that too, and yet they, or rather investors from their countries, are not buying land to meet those demands. So who is buying and why?
Finally, supposing that scarcity of arable land is indeed at the bottom of the “Green Rush,” then the relevant policy question is whether the market mechanism – even in the modified version that Professor De Schutter advocates, which makes land occupied by marginalized groups essentially nontransferable – is indeed best suited for dealing with the problem of scarcity of this particular good.
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Oct 24, 2011 | Article Responses
Drawing on the familiar and effective maritime principle of an SOS distress call, Professor Hollis argues in his paper, An e-SOS for Cyberspace, that an analogous system should be established to respond to cyber distresses. Traditionally, an SOS call required ships in the area “to ‘proceed with all speed’ to provide whatever assistance” they could. Hollis argues that “international law needs a new norm for cyber-security: a duty to assist, or DTA.” This duty to assist (DTA) would be much like an SOS in maritime law, in that it would “marshal[] sufficient resources to avoid or at least mitigate . . . harm as much as possible.” Under Hollis’ proposal, individuals, businesses, organizations, and/or states should have a similar ability (and a similar corresponding duty) to seek and provide aid to the victims of cyber attacks. If the DTA is effective, Hollis argues that it will not only help avoid or mitigate cyber harms but that it will also act as a deterrent by making attackers “think twice about whether it is worth the effort to attack at all.” Hollis is careful to make clear that he does not “expect any resulting duty to remediate all threats nor to operate in all contexts,” but he lays out a framework, inviting the international community to accept the apparent need and to craft a solution that will provide the assistance required.
Recognizing that Hollis’ project here is not to propose a complete solution but merely a framework upon which to build, I will focus my comments on four points in Hollis’ paper: proximity, frequency, technology protection, and the continuing problem of attribution. While these four points are fundamental to Hollis’ proposal, I believe that they also present some difficulties.
Apr 10, 2011 | Article Responses
I. Introduction
A central premise of international humanitarian law (IHL) is that the same rules apply to both parties in an armed conflict “regardless of the type of war they fight, the justness of their respective causes, or the disparities in power and capabilities between them.”[1] In her essay, On a Differential Law of War, Gabriella Blum questions that premise, asking whether holding powerful parties to higher standards of IHL compliance than weaker parties might better maximize humanitarian welfare in conflict situations.[2] Her answer is that the humanitarian effect of such “common-but-differentiated responsibilities” (CDRs)—a term she borrows from international environmental law (IEL) and international trade law (ITL)—is indeterminate because it depends on the nature of the CDR, the type of conflict, and whether the weaker party is a state or nonstate actor.[3]
Blum’s normative analysis of the desirability of CDRs in IHL is exceptionally powerful, and I agree with most of her conclusions. This brief response, therefore, is intended to be more constructive than critical. In particular, I want to raise five issues that I believe warrant further exploration: (1) whether permitting judges to differentially apply IHL standards could be seen as legitimate; (2) whether proportionality is the kind of standard that permits differential application; (3) whether, and to what extent, CDRs would encourage states and nonstate actors to comply with IHL; (4) whether the case for CDRs might be stronger in non-international armed conflict (NIAC) than in international armed conflict (IAC); and (5) whether it is possible to assess the humanitarian effect of CDRs without abandoning the jus ad bellum/jus in bello distinction. I conclude that, in fact, Blum’s own analysis supports recognizing at least one kind of CDR: namely, requiring strong states to spend more money than weak states on procuring and using precision weaponry. . . .
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Oct 24, 2010 | Article Responses
I. Introduction
Professor Salacuse argues that today’s network of investment treaties adds up to an emerging global “regime” for international investment.[1] He defines “regime” as do international relations scholars: “principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations”[2] and adds that to qualify as a regime the network must “constrain and regularize the behavior of participants, affect which issues among protagonists move on and off agendas, determine which activities are legitimized or condemned, and influence whether , when, and how conflicts are resolved.”[3]
Salacuse’s conception of the regime does not include other arrangements that set out additional or overlapping principles, norms, and rules for international investment. Specifically, he does not incorporate the investment rules associated with the World Trade Organization (WTO). Yet, both the Agreement on Trade-Related Investment Measures (TRIMS), which restricts host countries’ imposition of performance requirements on foreign investors, and national schedules under the General Agreement on Trade in Services (GATS), which ensure market access to certain investors, cover part of the agenda of home countries in earlier negotiations for a truly multilateral agreement on foreign investment. These rules now surely form part of any emerging global investment regime. Of course, the “regime” has not generated international law that is binding on non-treaty countries. As a result, it does not cover a large part of investment flows, particularly those between rich countries. In addition, it has not yet created a really common set of principles, because language differs considerably from treaty to treaty and only limited common interpretation has emerged from arbitration tribunals. Subject to these caveats, Salacuse’s conclusion is reasonable: an international regime for investment is emerging through the spread of bilateral investment treaties (BITs), investment provisions in bilateral and regional trade agreements (RTAs), and dispute settlement clauses of individual investment agreements.[4] Salacuse’s exploration of the emerging investment regime and its key differences from most international regimes clarifies some of the special challenges the regime faces in retaining developing countries as adherents. Its unusual origins and structure carry important consequences for those who wish to encourage developing countries to remain in the regime. One feature is the fact that the existing regime makes it difficult for host countries to benefit from learning by experience. A second problematic outcome is that the scope of “investment” covered by the regime has frequently been stretched beyond what many host countries probably intended when they signed investment treaties. The third issue is the absence of significant “escape clauses,” safeguards that have played crucial roles in making other international regimes politically acceptable and long-lived. Finally, the unusual structure makes it extremely difficult for concerned parties to effect constructive change.
. . .
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[1] See Jeswald W. Salacuse, The Emerging Global Regime for Investment, 51 Harv. Int’l L.J. 427, 431 (2010).
[2] Id. at 431 (quoting Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in Power, the State, and Sovereignty: Essays on International Relations 113, 113 (2009)).
[3] Id. (quoting Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis, 36 Int’l Org. 245, 246 (1982)).
[4] Political scientists who have explored the “regime nature” of current rules on foreign investment have also tended to ignore the investment rules embodied in the WTO and the GATS, although they have generally accepted the view of the system as making up a regime. Schill argues a somewhat different point, that the current regime is approaching the equivalent of a multilateral regime because of its most-favored-nation provisions and the possibilities of treaty shopping. See Stephan W. Schill, Investment Treaties: Instruments of Bilateralism or Elements of an Evolving Multilateral System? 9–15 (Global Admin. L. Viterbo IV Working Paper, 2008), available at http://www.iilj.org/GAL/documents/Schill.pdf. One might also add to Salacuse’s list unambiguous consent to the International Centre for Settlement of Investment Disputes (ICSID) (or other) arbitration provided by some countries in their legislation. When such exists, a country opts into the regime without the need of BITs, RTAs, or clauses in investment agreements. In spite of the emerging international regime, unilateral actions persist. The United States still threatens to cut off aid, withdraw its generalized system of preferences (GSP), and vote against multilateral loans for countries that take U.S. property without prompt and adequate compensation. One might also consider national and multilateral political risk insurance organizations as part of any regime. The Overseas Private Investment Corporation (OPIC), for example, has insured investors against non-payment of arbitration awards.
