Student Features

Article Responses

A Response to David Landau

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.

Op-Ed

A Strategy for Syria Under International Law

The iron rule of the Asad dynasty over Syria’s people is forty-two years old. It began in 1970 when then Defense Minister Hafez al-Asad carried out a bloody coup against his own party colleagues and appointed himself president. Hafez, the family patriarch and dictator for life, killed or jailed companions he perceived as his rivals, supported violent extremism whenever he found it useful, and plundered Syria’s riches while arresting and torturing any dissenter. Over two generations of Asads, a brutal government in Damascus has been the main Mideast ally of an increasingly belligerent Iran. Bashar al-Asad, the son, has acted as the chief facilitator for Sunni extremist killers in Iraq over the past ten years. In Lebanon, Asad’s father and son have wrought havoc since 1975, killing in turn Palestinians, Muslim Lebanese, Christian Lebanese, and whoever dared help the return of stability to a country torn asunder. They assassinated the most prominent Lebanese leaders who stood in their way, including Kamal Jumblat in 1977, Bashir Gemayel in 1982, and in all likelihood Rafik Hariri in 2005. Operatives of self-proclaimed “Loyal to Asad’s Syria” Hizbullah are now under indictment before the Special Tribunal of Lebanon for Hariri’s murder, and scores of journalists and politicians along with hundreds of other innocent people have been assassinated, “disappeared,” or randomly killed.

Most tragically, the Asads never hesitated to commit mass murder against the Syrians. Hama’s historic center was leveled to the ground in 1982, and the relentless siege, bombardment, and mass killing continues to this day a pattern of ruthless governance across the country, with Homs the latest victim.

Both the future of the Middle East and the success of the formidable nonviolent mass movement in Tunisia, Egypt, Bahrain, and Yemen depend on what happens next in Damascus. If the dictatorship survives, if its main pillars are not brought to justice on the way to a democratic transition, Asad’s continued rule will doom domestic and international peace in the region and beyond. Why? Because the nonviolent movement will find it hard to recover from this blow.  Asad’s regime itself will have its own noxious effect on peace. Yet more deeply, more world-historically, it will be harder—much harder—to argue to any brave young man or woman cleaving to nonviolence that this path, although potentially bloody in sacrifice, is the right form of resistance to tyranny.

Our joint reflection seeks to bring recognition to the unparalleled bravery and sustained nonviolent resistance of Syria’s revolution and to provide concrete political means to help end the forty-two year long reign of death and fear. Drawing on the appropriate tools of international law and the strength of Syrian revolution, the ends and the means of the strategy proposed must remain worthy of the sacrifice of Syria’s thousands of nonviolent demonstrators.

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Student Features

Drafting a Joint Proposal for a U.N. Security Council Resolution on Israel-Palestine with Alan Dershowitz

On Wednesday, September 14, I happened to sit for lunch in the faculty common room of Harvard Law School (HLS) next to Professor Alan Dershowitz, whom I had not met before. Next to him was sitting Professor Robert Mnookin, with whom I had had previous discussions about the International Criminal Court (ICC), in particular whether the recognition of the State of Palestine by the United Nations General Assembly (UNGA) would allow the Palestinian Authority (PA) to secure the ICC’s jurisdiction over potential crimes committed in the Palestinian territories.

Both Israeli Prime Minister Netanyahu and the PA President Abbas were scheduled to speak before the General Assembly the following week. The conversation at lunch drifted naturally from ICC jurisdiction to the Palestinian statehood bid, which was scheduled for discussion in my Public International Law (PIL) class the following week as a live case for testing the criteria of government and state recognition. The discussion was heating up politically and in the press, with the announcement that the United States would veto it at the U.N. Security Council (UNSC), leaving a realm of uncertainty over whether the PA would seek full U.N. membership through an application to the UNSC, or recognition as a State from the UNGA.

As the discussion with Bob Mnookin started, I realized that my immediate neighbor was the famous (and in Arab and Palestinian circles, infamous) lawyer and professor who took on, and won, difficult and controversial First Amendment and criminal cases, and who is considered the most articulate defender of Israel in the United States. He told us he was seeing the Israeli Prime Minister for dinner on Friday, September 16, which made the conversation even more concrete. An immediate ice-breaking moment resulted from introducing myself as the lawyer of the Sabra and Shatila victims in their case against Ariel Sharon and others in Belgium. Alan Dershowitz’s reaction was nuanced, and he explained in a later conversation that he was on record saying that the 1982–83 Kahan Commission had not gone far enough because it did not contain a criminal prosecution component. In a further email exchange for the present article on December 6, he clarified his position as follows . . . .

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Student Commentaries

The Failure to Negotiate Effective International Measures Against Transnational Bribery

I. INTRODUCTION
Despite years of negotiations aimed at addressing transnational corruption, the international community has failed to establish an effective international legal regime to curb the problem. After providing an outline of the problem and a brief history of attempts to address it, this Commentary considers some possible explanations for the international community’s continuing inability to negotiate an effective agreement to crack down on firms that bribe foreign officials. The Commentary concludes by speculating that an institutionalized enforcement mechanism might provide impetus for an agreement.

II. THE PROBLEM
A. The Problems of Corruption
Corruption, “the misuse of public power for private profit,” can include practices as diverse as nepotism, patronage, misappropriation of resources, abuse of insider information, extortion, and money laundering. International attention, however, has focused largely on bribery. Of particular importance is bribery involving high government officials and procurement, privatization, or other large-scale public decisions, also known as “Grand Corruption.”
Although once accepted by some as useful “grease in the wheels,” corruption is now almost universally seen as both harmful and immoral. Corruption has been condemned by major world religions and international institutions, and bribery of government officials is illegal in almost every country.
Corruption hurts economic growth and development, creating market inefficiencies by allocating resources based on bribery rather than merit. The corruption of regulatory systems not only transfers resources from honest people to unscrupulous ones, but can also put health and safety at risk. Widespread bribery undermines “public perceptions of how—and how well—a proper market economy works,” inhibiting liberal reforms and the rule of law.

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Article Responses

The Emergence of a Transnational Real Estate Market

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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Article Responses

A Response to Duncan Hollis, An e-SOS for Cyberspace

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.

 

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