Online Scholarship

Student Features

Exercising Freedom of Speech behind the Great Firewall

In order to better understand the relationship between the power of the Internet and the exercise of free speech in China, this study has chosen to examine the blogs of 42 judges and 13 public interest lawyers in the period between January 1, 2007 and December 31, 2008. Both judges and lawyers represent two unique groups of professionals, where the former are often perceived to be government representatives while the latter are seen as guardians of people’s welfare. The focus of the study, therefore, is on an analysis of these two groups of legal elites and how they have made use of their unique roles to open up a professional public sphere on the Internet and to act as a go-between in coordinating a match between the state and the people. Through passing on messages of contention and dissatisfaction from the people to the ruler, and in reminding both of them of the significance of law, the legal and political boundaries set by the authorities are being pushed, challenged, and renegotiated. Drawing on existing literature on boundary contention and the Chinese cultural norm of fencun (decorum), this study highlights the paradox of how one has to fight within boundaries so as to expand the contours of the latter for one’s ultimate freedom. Judging from the content of the collected postings, one finds that, in various degrees, critical voices can be tolerated. What emerges is a responsive and engaging form of justice which endeavors to address grievances in society, and to resolve them in unique ways both online and offline.

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Article Responses

On a Differential Law of War: A Response

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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[1] Gabriella Blum, On a Differential Law of War, 52 Harv. Int’l L.J. 163, 165 (2011).

[2] Id. at 166–68.

[3] Id. at 168.

Profiles & Interviews

An Interview with Lucy Reed

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

Q: For those unfamiliar with international arbitration, can you briefly describe your current work as an arbitrator and an advisor to clients involved in international arbitrations?

My colleagues and I work primarily as counsel to clients in international arbitrations, both companies and government entities. In international commercial arbitration, the disputes typically involve alleged breaches of contract (sales, construction, joint ventures, M&A), which the parties—from different States—have agreed be resolved through binding arbitration rather than one of the party’s national courts. These cases, for example under the International Chamber of Commerce (ICC) or London Court of Arbitration (LCIA) Rules, are by definition confidential.

We are also specialists in investment treaty arbitrations, in which a foreign investor is allowed by the relevant treaty to bring a dispute relating to that investment directly against the host State (rather than having to rely on its home State to represent it) for resolution through binding arbitration. Many are heard by panels constituted under the World Bank’s International Centre for Investment Disputes (ICSID), and the existence of the cases is public. For example, we represent ConocoPhillips in a multi-billion dollar ICSID case against Venezuela for (among other things) alleged expropriation of COP’s oil investments. We also defend the Government of Turkey in a multi-billion dollar claim brought under the Energy Charter Treaty by an alleged Cypriot investor.

As Freshfields is recognized as the pre-eminent international arbitration firm, we tend to get hired for major disputes, involving hundreds of millions and often billions of dollars. Unlike domestic arbitration, these international proceedings are rarely quick or inexpensive. We write extensive factual and legal “memorials” (briefs), interview witnesses, and do oral advocacy at hearings. Cases can go on for years, but the different stages of the cases provide a lot of variety.

I do not sit as an arbitrator in investment treaty disputes, to avoid facing “issue conflict” in connection with recurring legal issues under the investment treaties. In international commercial arbitration, I still prefer serving as counsel—I like advocating more than I like deciding—and so I sit as arbitrator in only two or three cases at a time. I just finished almost a decade of sitting on the Eritrea-Ethiopia Claims Commission, which was the first arbitration panel constituted to decide issues of international humanitarian law.

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Q: Can you describe your favorite legal issue/project that you have worked on (and why)?

My two favorite legal projects, because they were unique, were (1) serving as general counsel of the Korean Energy Development Organization (KEDO), the international organization set up after the North Korean nuclear crisis in 1994, and (2) sitting on the Eritrea-Ethiopia Claims Commission (EECC).

As for KEDO, it is hard to beat the experience of leading negotiations with North Korea and in North Korea. I remain proud of the work we did, with hundreds of experts, in effectively negotiating from scratch the regulatory infrastructure necessary to commence a nuclear power plant construction project in North Korea. I wrote about this process in my Hague Lectures in 2001.[1]

As for the EECC, it was a privilege to be part of the first tribunal resolving international humanitarian law disputes; as rough and imperfect as the EECC claims process had to be, the two governments did agree on a legal process rather than keep fighting. All EECC decisions are publicly available on the website of the Permanent Court of Arbitration.[2]

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Q: You have worked on international arbitrations that involved countries in which women are not expected to work as lawyers. Has that caused any issues? If so, how have you handled them? Do you have any advice for other female lawyers who encounter similar problems?I have been fortunate enough not to face any serious issues, but I have not had to work in some of the toughest countries like Saudi Arabia. At the Iran-U.S. Claims Tribunal we co-existed with our own traditions, and the Iranian Government representatives treated me no differently than they had the U.S. Government’s Agents who were men. (I have a favorite story about how there were more comments on my height than my gender.) True, they did not shake my hand, but I recognize that as part of their religion. And the one time I visited Iran, in 2002 as the guest of the Ministry of Foreign Affairs for an arbitration conference, I dutifully fulfilled the legal requirement of wearing a coat and a headscarf—it did not affect the high level of our discussions and debates as lawyers. In North Korea, if they were surprised that a woman would be head of delegation, they never showed it.

Advice for others? Prepare culturally, pick your battles, and practice responses to the worst that might happen.
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Q: What are the most important roles that you believe ASIL plays? What are the greatest challenges facing it or any other international law organization in the coming years?

The most important role ASIL plays is that of convener: convener primarily of academics and practitioners, but also of government lawyers and leaders, to discuss and debate—in person and in print—the most pressing international law issues of the day. The mission of ASIL is public education, to host and elevate the discourse, to emphasize that international law is not some elite specialty but rather real law that is on the front page and all around us.

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[1] Lucy Reed, Mixed Private and Public Law Solutions to International Crisis, in 306 Recueil Des Cours 177 (Académie de Droit International de la Haye ed., 2003).

[2] Eritrea-Ethiopia Claims Commission, Permanent Court of Arbitration, http://www.pca-cpa.org/showpage.asp?pag_id=1151 (last visited Apr. 2, 2011).

Student Commentaries

Kiobel and Corporate Immunity Under the Alien Tort Statute

I.        Introduction

In September 2010, a two-judge Second Circuit majority ruled that corporations are immune from liability under the Alien Tort Statute (“ATS”).[1] This statute, which grants aliens access to federal district courts, has emerged as a controversial tool for international norm enforcement in the last thirty years. The unexpected decision to foreclose corporate liability has generated a wave of criticism from human rights activists and international law scholars who claim that the decision is grounded in a fundamental misunderstanding of international law.

This commentary examines the Kiobel decision against other recent interpretations of the ATS, especially those following the Supreme Court’s decision in Sosa v. Alvarez-Machain. Although corporate immunity makes little sense doctrinally, this commentary attempts to provide a rationale for the Second Circuit’s decision. The Kiobel decision was largely the product of policy concerns about expanded use of the ATS. And it stems from the Supreme Court’s mandate to lower federal courts to exercise “vigilant doorkeeping”: narrowing ATS claims to those that arise under “customary international norms.”[2] Confusion over what body of law determines enforcement standards has resulted in varying interpretations of ATS jurisdictional boundaries, and has contributed to the vigorous Second Circuit decision in Kiobel.

Following further consideration among the circuits, the Supreme Court should address whether the ATS allows corporate liability, aiding and abetting liability, and liability for purely extraterritorial suits. Eliminating liability under any of these theories would have resulted in dismissal in Kiobel. However, sweeping rules may screen out meritorious cases. The question then becomes what set of rules would achieve the optimal result, minimizing over-screening while adhering to the Supreme Court’s requirement of caution.

Critics (including the U.S. government) warn that a lack of principled limits will have negative systemic effects, including dire consequences for U.S. foreign policy. However, human rights activists discount these predictions as unfounded and exaggerated. They focus on the ATS’s important role in the development of principles of international accountability, and the importance of granting victims of atrocities access to the U.S. judicial system. As the international enforcement system stands, “[a]dherence to internationally recognized human rights norms remains largely voluntary, and current mechanisms for international enforcement have had little impact on abusive behavior.”[3] ATS litigation provides a unique opportunity for redress for victims of crimes against humanity. However, it remains to be seen whether the benefits of ATS litigation outweigh potential harms to U.S. foreign policy. In articulating the boundaries of ATS jurisdiction, the federal courts must continue to balance the United States’ current international obligations with principles of international comity. The Supreme Court has categorically rejected the imposition of liability that threatens diplomatic relations, and would likely continue to do so in this context. It is unlikely that the Supreme Court would support an ATS claim on a theory of aiding and abetting liability in a purely extraterritorial case when the systemic effects pose great risk to U.S. interests. . . .

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[1] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reh’g en banc denied, No. 06-4800-cv, 2011 WL 338048 (2d Cir. Feb. 4, 2011).

[2] Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 729 (2004).

[3] See Terry Collinsworth, The Key Human Rights Challenge: Developing Enforcement Mechanisms, 15 Harv. Hum. Rts. J. 183, 183 (2002).

Profiles & Interviews

An Interview with James Cavallaro

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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Online Scholarship

Revising Egypt’s Constitution

The transition under way in Egypt is constitutional. Work on the higher law bespeaks the Nile Revolution at its noblest: its nonviolent character. A constitutional transition after the ousting of the dictator is the most important task for sealing in law the future of Egypt and the region and for ensuring peaceful political change. In the spirit of generating broad discourse in support of the Nile Revolution, this modest study seeks to identify key revisions to Egypt’s Constitution, and in doing so, to contribute an additional legal voice to the public deliberation on the future of the country, that is led by the Constitutional Amendments Committee. The first Part of this Article discusses why the judiciary is uniquely positioned to lead the project of constitutional reform and how this could be accomplished under the current Constitution.  The second Part of the Article lays out specific recommendations for reform in twotiers. The first tier addresses the procedures governing elections in Egypt with specific attention to the enumerated articles before the Committee.  The second tier addresses structural weaknesses in the Constitution regarding the allocation of powers, and suggests mechanisms to properly balance executive, legislative, and judicial authority.

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