An Interview with James Cavallaro

Mar 7, 2011 | Profiles & Interviews

The following is an excerpt from the published interview with James Cavallaro. To see the full interview, please click on the link to download the article above or below.

Q: Only one year after graduating law school, you opened a joint office for Human Rights Watch (HRW) and the Center for Justice and International Law (CEJIL) in Rio de Janeiro. What made you decide to go there? What other options were you considering? Did it seem risky at the time? Did you have pre-existing connections there?

What made me go to Rio de Janeiro was my interest and experience in Latin America and Brazil, in particular. I had lived for a few years already in Latin America and was fluent in Portuguese. I had been to Brazil several times and had worked with Human Rights Watch and the Center for Justice and International Law to develop funding proposals to support a joint office. So there was a certain progression and I had the support of two institutions. But the entire project was risky; there were certainly no guarantees of success. And I was largely on my own in Brazil. In retrospect, I’m not sure that I really knew enough to take on a project of that magnitude, but what I lacked in knowledge I compensated for in energy, hard work, and stubbornness. I spent a lot of time banging my head against the wall, trying to figure things out, develop contacts, hire staff, comply with regulations—all while contributing to human rights campaigns and cases. Sometimes, it can be an advantage not to know what an uphill battle you are facing. Maybe had I known what I found out afterward, I might not have opted to take on the joint office project. The other options I was considering involved death penalty litigation and public defender work. In retrospect, I’m very glad I decided to open the joint Brazil office for a number of reasons, not the least of which is that Brazil is where I met my wife and where my daughter was born.

Q: About five years after opening the joint HRW-CEJIL Office, you founded the Global Justice Center. Can you tell us what you did at the GJC? Why did you decide to open it? What made it different from the office you had opened before? What did you do to make sure it would continue to thrive after you left?

The idea of the Global Justice Center was to create a Brazilian human rights NGO with an international focus, rather than the Brazilian office of an international organization. In my time with HRW and CEJIL I came to see how U.S.- and European-based organizations dominated access to international fora, whether universal (UN bodies) or regional (those in the inter-American system of the OAS), and the international media. In part because of language (Portuguese is spoken only in Brazil in the Americas), the Brazilian human rights community was largely isolated and had very little access to international oversight mechanisms and international media. We created Global Justice to amplify the voices of Brazilian rights activists at the international level. To give you one example, in the mid- and late-1990s, HRW did not consider economic, social, and cultural (ESC) rights to be a core element of its mandate. So whenever I spoke to media sources on behalf of HRW to discuss the main or principal areas of rights abuse and concern in Brazil, I would reference civil and political rights only. Domestic rights activists, by contrast, saw ESC rights as essential to the human rights situation in Brazil. That made perfect sense in a country that had been ranked as the most unequal in terms of distribution of wealth. But HRW and Amnesty International wouldn’t address ESC rights issues, and HRW and Amnesty dominated access to the international community.

We set up Global Justice with one small grant and started working to train Brazilian activists to use international mechanisms. We developed seminars that we would hold throughout the country. And we brought in activists from around Brazil both to spend time with us at our office in Rio de Janeiro and to travel abroad to learn to use UN and OAS mechanisms. Global Justice has grown significantly, along with other internationally focused NGOs in Brazil. Today, Brazilian groups have much more access to international fora. They make much more and better use of oversight bodies and international media. And Global Justice, I think, has been central to that process. In many ways, Global Justice has become much more successful since I left. That’s something of which I am enormously proud. Global Justice’s success is due in large part to the good fortune that I had in being able to identify outstanding, committed rights activists and to bring them on board in the organization’s first years. These activists are now national leaders in Brazil and very well respected internationally. Global Justice is a Brazilian organization, with an international focus, run primarily by Brazilians but with a diverse, international staff, as it should be.

Q: Do you have any advice for students interested in pursuing human rights work? What about students who are interested in opening brand new offices, much like you did? What were the biggest challenges you faced, and how would you recommend overcoming them?

The advice that I give to students interested in pursuing human rights work is that they should do just that, work in human rights. It’s hard to get started, hard to find jobs or funding or fellowships, but if you’re persistent, things turn up. I encourage students to go somewhere that they might want to work and to be prepared to spend time there learning the ropes. Not a few weeks or months, but years. That’s what it takes. To be successful, you have to be part of the local human rights community, you have to understand the local culture, language, norms, and so forth. They say that all politics is local. Well, at some level, so is all human rights work. Or at least all good human rights work. It may have an international component, but it has to have the local component. And being effective locally is what separates good, grounded, and successful advocates from those who parachute in and expect instant results. So my advice for those who want to work in human rights, particularly if they want to set up some sort of organization or structure, is to be patient. To learn how things work. To engage local actors, to partner with them, to learn from them. To respect their agency. To be humble and not to impose themselves. And not to give in and do something else, like, say, work for a law firm just because it seems easier.

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An Interview with Jean-Claude Piris

Feb 1, 2011 | Profiles & Interviews

The following is an excerpt from the published interview with Jean-Claude Piris. To see the full interview, please click on the link to download the article above or below.

Q: Could you tell us more about the role and functions of the Legal Service of the Council?

The Council is composed of one minister per Member State and adopts legislative and other legal acts. The Council meets in different areas—such as foreign affairs, agriculture and fisheries, justice, and so forth—and of course, it needs lawyers. The European Council (composed of Prime Ministers and Heads of State) meets every three months and decides on the priorities of the EU—the main lines of policies to come. For this it needs a Legal Counsel. So I am doing this job and to help me I have about 300 people, and about half of them are lawyers from all twenty-seven member states. They are divided into directorates, working on external relations, justice and home affairs, economy and finance, agriculture and fisheries, the internal market, and so on and so forth. Half of my staff (150 people) are lawyers specialized in improving the quality of the law—and doing so in all languages. We have twenty-three official languages, and every version has an equal authentic value—so this directorate ensures that the law means the same thing in all languages.

. . .

Q: Please tell us a little bit about your new book, The Lisbon Treaty: Legal and Political Analysis.^[1]You argue that the EU is not yet done developing, and that the EU is plagued by major imbalances. What are some of these imbalances that still remain to be tackled, especially after the Lisbon Treaty?

The major imbalance is of course the one the EU is working on now—President Van Rompuy, the Council of Ecofin (the Council of Economic and Financial Affairs) and the European Council—it is the crisis of the Euro and how we will get out of that. The EU is not a state and not a classic international organization, but we work like a state for the Euro—the Euro is managed in a federal way. We have a European Central Bank. That is the “M” (the monetary part of the Economic and Monetary Union), but the economic part (the “E” part), has been left to states. Of course, they have the democratic legitimacy, and they have the link between the voters and the decision-makers who make decisions on fiscal matters, tax matters, budget matters, and so forth. If the member states make mistakes (if they do have huge budget deficits and huge debts), the Euro has problems. That is exactly what happened.

A preliminary and provisional solution has been adopted, which is a provisional mechanism to help with money in case something happens. This mechanism is going to end in 2013 (it was provisional for 3 years). Mrs. Merkel said that she has a lot of difficulties to transform it into a permanent mechanism—political difficulties with the Bundestag, Bundesrat, and important legal difficulties with the German Constitutional Court. She is convinced that she will lose the case—that she will not be able to transform the provisional mechanism into a permanent mechanism because some people think it is against the Treaty. So what she is asking for is a modification of the Treaty in order to allow establishment of this mechanism as a permanent one.

Besides that, the task force presided by Mr. Van Rompuy, composed of all the ministers of Ecofin, and also Mr. [Jean-Claude] Trichet from the Central Bank have reached final conclusions,^[2] and the Commission on this basis has proposed six legislative proposals for better economic governance that will be on the table of the Council and the Parliament. Some of them require co-decision while some of them require the simple opinion of the Parliament. We might adopt these proposals in 2011, but there is also that small change in the Treaty necessary for Germany, which will be very difficult to get. So that is one of the imbalances we have and the work is in progress to try and solve it.

We have other imbalances, for example we have not finished the internal market. People think that we have finished the internal market, but that is not true. In the matter of services, for example, we are far from it. But on that we have already a report from Professor [Mario] Monti, President of Bocconi University in Milan,^[3] who was a member of the Commission in the past, and now we have a series of fifty Commission proposals to improve the situation.

I think we have other imbalances too. We have not done enough to harmonize tax legislation. That is very difficult because it is subject to unanimity—as a lot of things in the EU are—and now we are twenty-seven countries. We are not six countries anymore or even twelve like when I began—twelve that were very homogenous—now the twenty-seven Member States are very heterogeneous. Interests and needs are completely different. We have very poor countries like Romania and Bulgaria, which are not well advanced in economic terms, social terms, and in protecting the environment. It is very difficult for them (I’m not criticizing them because it is normal that they defend their interests) to accept an increase in the standards—it is impossible. So the Union has a huge impediment to acting in the world as it is today. The world today is globalized, is changing at the speed of light—look at China, and so on—changing faster than ever. So we have to adapt, we have to help our member states to adapt to these changes. Our member states are small—small surface areas, small populations, awful demographic conditions (the proportion between workers and non-workers is going to be worse and worse in the future), more immigration, with lots of problems that we have already and not enough innovation, not enough investment in structural reforms, not enough investment in research and development, not enough productivity improvement, not enough entrepreneurship. On all that the EU can help and improve governance of its member states, so we need the EU. But we need an EU which is able to decide quickly and make more decisions. And in the state we are in, with the rules we have, we are working in a slow manner, and in a non-ambitious manner. We cannot accommodate everybody with “one decision fits all.” A lot of decisions must be taken unanimously. So it takes a long time and we have very low degrees of ambition. So that is what I mean when I say that there are imbalances.

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[1] Jean-Claude Piris, The Lisbon Treaty: A Legal and Political Analysis (2010).

[2] Strengthening Economic Governance in the EU, Report of the Task Force to the European Council (Oct. 21, 2010), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/117236.pdf.

[3] Mario Monti, A New Strategy for the Single Market, Report to the President of the European Commission (M ay 9, 2010), available at http://ec.europa.eu/bepa/pdf/monti_report_final_10_05_2010_en.pdf.

An Interview with Larry D. Johnson

Nov 1, 2010 | Profiles & Interviews

The following is an excerpt from the published interview with Larry Johnson. To see the full interview, please click on the link to download the article above or below.

Q: What were the most rewarding aspects of your career in pursuing international law?

I have had 37 years of being a lawyer in United Nations (UN) organizations, including the UN itself, the International Atomic Energy Agency, and the International Criminal Tribunal for the former Yugoslavia (ICTY), so there have been some highlights throughout. Some of them were related to work in the UN Office of Legal Affairs, where we had to deal with the attempt of the U.S. government in 1988 to close the Palestine Liberation Organization (PLO) Mission. That got us involved with the federal district court, where the UN filed an amicus brief. It was a great mix of international law and U.S. constitutional law. The judge sided with us that Congress did not clearly intend to supersede the UN/U.S. Headquarters treaty by adopting a law closing all PLO offices in the United States, including the PLO Observer Mission to the UN. Going back to settled constitutional law doctrine, the judge ruled that as treaties and acts of Congress are both the supreme law of the land. If there is a conflict, whichever is later in time applies as long as it is absolutely clear that it is the intention of the later action, in this case an act of Congress, to supersede the treaty. In this case the judge found, as we had argued, that the requisite congressional intent to violate and supersede the treaty did not exist.

The other highlights were being involved in the creation of international criminal tribunals. The UN Legal Office prepared the statute for the International Criminal Tribunal for the former Yugoslavia, which was very challenging and exciting. We were in deep water because there wasn’t anything to draw on other than Nuremberg and the courts created in Germany by the Allied Powers after the Second World War. And we had 60 days to do it. A lot of it was just flipping a coin in making policy choices. We assumed that the statute would go through lots of negotiations and tinkering by the Security Council, but at the end of the day, for various reasons, the Council adopted it as it was. So after having begun what seemed to be a very theoretical, politically motivated, and time-consuming initiative, all of a sudden it was adopted “as is” and came to life.

The second tribunal, the International Criminal Tribunal for Rwanda (ICTR), was not done by the Secretariat, but rather by members of the Security Council. Following that tribunal and after I had left, the Legal Office was involved in the creation of the tribunals for Sierra Leone and Cambodia. I was back in the Office of Legal Affairs when we created the Special Tribunal for Lebanon. This is a whole different animal, because it does not have war crimes as its subject-matter jurisdiction. The Special Tribunal for Lebanon is applying the Lebanese domestic law concerning terrorism and bombings with regard to the assassination of the late Prime Minister Rafik Hariri.

Q: Critics of ad hoc tribunals such as those you have mentioned have highlighted that the international criminal tribunals prosecute too few people, that they cost too much money, and that the tribunals do not necessarily address the needs of those living in these countries. What are your responses to these critics and your views on the role of these tribunals?

On the number of indictees, actually, at the beginning of both the ICTY and the ICTR, the criticism was that they were indicting too many, and all of a sudden there were a lot of people who were being arrested or were turning themselves in. There were quite a few fugitives for a while, but in the end there are only two fugitives left for the ICTY. The Security Council, on the recommendation of the ICTY itself, said that the tribunals should limit themselves, not to every person who had committed serious violations of international humanitarian law, but to only the most senior who were responsible for the most serious crimes. So that way they began to shorten the list. And in fact some of those indictees, by procedures adopted in the ICTY, if they are middle or lower level perpetrators, can be back to local courts in the region, for example in Zagreb, Belgrade or Sarajevo, once the ICTY is satisfied that due process will be had, and that the trial will not be a sham or a kangaroo court. If the ICTY thinks that one of these domestic proceedings is not going well according to international standards of due process, it has the power to pull it back. In that way, they began to cull some of these indictees who would not be indicted today, but who were indicted in the early years when they could not get their hands on the big fish.

Later, for the tribunals for Sierra Leone and Cambodia, their mandates included that they were to try only the most senior people who had committed the most serious crimes. That’s why Sierra Leone had only a few indictees, around 10–12. And they are all done except for Charles Taylor, who’s being tried now. It’s the same with Cambodia, where there is a relatively small number of indictees because they wanted to get the top leadership.

Q: What do you think are the greatest legal barriers to the UN becoming a more effective institution?

Now you’re getting into UN law. In terms of being an effective organization—for what purpose? I suppose if you look at the primary objective of the UN Charter, which is to save succeeding generations from the scourge of war, you are talking about the ability of the UN to maintain international peace and security, which is primarily the function of the Security Council. Obviously there has been a lot written in the past 60 years about how the Security Council is or is not functioning, whether the veto should be revised or expanded to have new countries get the veto or at least new permanent membership—rumor has it that World War II is over—and that the Security Council is too political an institution. I’m not sure the veto is an objective legal obstacle, because if there wasn’t the veto, we would not have the organization we have today. Every member of the UN understood that and accepted the veto when they signed on to the Charter. Plus, if this “legal barrier” were removed, the Council could be adopting resolutions against the fundamental interests of the major Powers who would simply ignore the Council resolution, eroding its credibility over time. There could, as an alternative to the UN, perhaps be several organizations of like-minded states, but there would not be a universal organization. And there are high points, such as the actions leading up to the first Persian Gulf War against Iraq, when the organization actually began functioning exactly as its 1945 authors intended it to, with the five permanent members working together, meeting together, and then going to the whole Security Council. A lot of the members of the organization were not used to that and said, “What is this? The P5 are now uniting and dictating to us, imposing sanctions all over the place!” But in fact that’s what the organization was intended to be like. So the biggest obstacle is dealing with the feeling of many other countries that it’s not their organization, the Security Council is too powerful, and the permanent members are abusing their privileged position. You have to deal with that appearance or reality without tearing down the structure. It is trite but true to say the UN will work effectively when the political will is there of all members to make it work—that is not a legal barrier.

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An Interview with John B. Bellinger III

Oct 4, 2010 | Profiles & Interviews

The following is an excerpt from the published interview with John Bellinger. To see the full interview, please click on the link to download the article above or below.*

Q: As you moved from law school to private practice and the government, what most surprised you about the practice of international law?

I was most surprised in government how little understanding of the importance of international law there is even at the highest levels of our own government in all three branches—the executive, particularly in congress, and even amongst the judiciary.

As I said earlier today, in other countries international law is something that is absolutely accepted. But in the United States amongst the population, and even in our government, at best there is not an understanding of the importance of international agreements or international tribunals, and at worst there is an active hostility—a belief that international law and international institutions are somehow undermining the sovereignty of the United States. So that was certainly a challenge for me when I was Legal Adviser.

Q: If you had the opportunity to be the Legal Adviser again, what, if anything, would you do differently?

This is an issue that I look back on. Every Legal Adviser essentially has to play the hand that is dealt to him. You don’t really get to pick and choose that much because you are the lawyer to the Secretary of State and for the rest of the administration.

I ended up spending a disproportionate amount of my time on post-9/11 terrorism issues—detention in Guantanamo and various other things—which were important to discuss with our allies. But it was not always terribly enjoyable work to have to go and explain controversial policies to audiences that were very hostile toward those policies, and I sometimes wonder whether, had I spent less time on those issues, I could have spent more time picking other interesting treaty issues and traveling to other places to work out international disputes.

And it was certainly at some personal cost to myself, because I had to be the face of some of these unpopular issues. So I do look back and wonder whether I should have spent so much time on all of those issues. But I felt that it was important to explain issues that other countries didn’t understand even if I didn’t necessarily agree with our own policies.

Q: Speaking of international institutions, Joan Donoghue was sworn on September 13, 2010 as a Judge of the International Court of Justice. After there has been all this attention last summer for the selection of a new Supreme Court Justice, what was it like being on the nominating committee for an international judge?

Well this was very exciting, I kept telling members of the press that they needed to write one fewer article about my Harvard Law School classmate, Elena Kagan, of whom I am very fond and very proud, and write at least one article about the fact that we were putting the first American woman on the International Court of Justice.

This is exciting! Judge Tom Buergenthal who had served for nearly ten years resigned this summer. The appointments to the International Court of Justice are made not by governments but based on nominations made by the U.S. “National Group,” which comprises the four members of each country in the Permanent Court of Arbitration. So in our case the national group consists of Harold Koh (the Legal Adviser), me, David Andrews (former Legal Adviser to Clinton), and Steve Schwebel (who used to be the president of the International Court of Justice).

So we had to have all four of us to agree to—or at least to have a majority to support—a candidate. We had a number of well qualified candidates to consider, and all of those were people very knowledgeable about international law. We wanted to put the best candidate that we possibly could on the Court. The person we agreed on was Joan Donoghue, who had been a long standing member of the Legal Adviser’s Office. She left to go to the private sector and I had brought her back in to be my principal deputy—so I was very fond of Joan. There was a long interregnum while Harold’s confirmation was being debated when Joan was the acting Legal Adviser so she got to know the Secretary of State quite well. Harold had spent nearly a year with her and became very impressed with her. And we did not actually have, in the end, disagreement about who the candidate ought to be, but this was someone who we could agree on —an indisputably well qualified international lawyer who had served in the administrations of both parties, and whom the National Group consisting of people who had served in both governments agreed on. And this was an exciting appointment, which I wish had gotten greater public attention.

Q: What is your opinion on the ICJ’s Kosovo decision? How do you resolve the tension between self-determination and international law or do you feel there is no tension?

The Kosovo case was also very exciting. I was heavily involved in the Kosovo independence issue. Harold Koh ultimately argued the advisory opinion case before the International Court of Justice, but the Bush Administration had worked very closely with the Kosovars—first trying to hold back from unilaterally declaring independence prematurely to avoid bloodshed, but essentially to have a balanced approach to the issue.

I was surprised at how favorable the International Court of Justice decision was towards Kosovo. I fully expected that the International Court of Justice would rule that the independence was legal; I could not have imagined that they would somehow try to “put the toothpaste back in the tube.” But I was also equally confident that there would be some kind of loose language about self-determination, declarations of independence, or UN Security Council Resolution 1244 that would be unhelpful in some way. And instead it was an excellent opinion that really tracked the arguments that had been made by the United States and others. So I was surprised at how well the opinion turned out.

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