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Article Responses

Evaluating the Civilian-Use Model of Wartime Property Damage

Responding to Lea Brilmayer & Geoffrey Chepiga, Ownership or Use? Civilian Property Interests in International Humanitarian Law, 49 Harv. Int’l L.J. 413 (2008).

I. INTRODUCTION

That civilians suffer in war is a historic, global phenomenon; that they deserve more respect during the fighting and more help after the smoke clears is obvious to anyone who has visited Afghanistan, the Democratic Republic of Congo, or Sri Lanka in the past year. The extent of civilian suffering seldom corresponds to the compensation that individuals or communities receive, or when it does, the calculus for such compensation does not take into account the far-reaching implications of the harm done to ordinary people who now must try to pick up the pieces of their lives. Brilmayer and Chepiga argue that deliberate damages to property should be compensated according to “use value” rather than ownership, such that the damages represent the social costs to the entire community. Under this theory, a hospital turned to rubble, a distinct violation of International Humanitarian Law (IHL), would be valued for its far-reaching utility as a community asset for health care and peace of mind, not just for its bricks and mortar. The authors justify this calculus on the grounds that the loss inflicted on potential users of that hospital is greater than its
market value.

For practitioners, both advocates and humanitarians, there are two underlying imperatives that must remain at the fore of efforts to fill known gaps or inadequacies in IHL; to neglect the full realization of either imperative is to inadvertently undermine the interests of civilians. First, practitioners are concerned about improving the welfare of civilians during war, as follows from IHL’s baseline assumption that civilians should be spared to the best extent possible the atrocities that war inevitably brings. Our second priority is to add to or strengthen incentives that deter warring parties from harming civilians. The authors argue that a model for damages recognizing the “civilian-use” value of community property would better reflect the real harm done and, consistent with existing IHL provisions, provide additional deterrence against targeting civilian property that is “indispensable to the survival of the civilian population.”1 To understand the value and utility of Brilmayer and Chepiga’s “civilian-use” model, we therefore apply this two-part test: (1) Will the “civilian-use” model meet the most critical needs of civilians suffering from armed conflict? (2) Will it change the behavior of warring parties? The answer to both of these questions is a solid maybe.

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Student Features

The Administrative Law of Nations

I. INTRODUCTION*

Through no fault of its own, the Supreme Court recently missed a chance to clarify important questions about the role of international law in U.S. courts. In American Isuzu Motors v. Ntsebeza, an appeal of a split decision from the Second Circuit, the Court could have ended the confusion surrounding the scope of “aiding and abetting” liability under the Alien Tort Statute (“ATS”), a law that allows aliens to sue in U.S. federal courts for violations of international law. The Supreme Court’s ruling in the case could have also provided general guidance on how courts should apply customary international law in the United States. Unfortunately, the Court lacked the quorum necessary to hear the case, leaving the issue unresolved.

This question is particularly significant because modern customary international law now touches many areas of policy that were once the sole domain of domestic politics. As we enter a period in which international law plays an increasing role in our domestic legal system, we must ensure that we apply international law in the United States in a way that respects the federal constitutional structure. Incorporation of modern customary international law into the American legal system – through vehicles like the Alien Tort Statute – should occur in a way that meaningfully reflects the functional design of the U.S. Constitution.

This brief article suggests that because customary international law formation has come to resemble, in certain respects, global administrative rulemaking, the application of customary international law in the U.S. raises “non-delegation” concerns about Congress delegating its lawmaking authority away to international bodies. Administrative law doctrine, therefore, may offer a helpful way of thinking about this challenge.

First, this article surveys the recent debate surrounding aiding and abetting liability under the Alien Tort Statute, with a focus on the 2008 case the Supreme Court was unable to hear, American Isuzu Motors v. Ntsebeza (the “Apartheid Case”). This article then examines how the customary international law claims raised in the case reflect a modern theory of customary international law formation that bears certain similarities to domestic administrative lawmaking. Finally, it argues that constitutional concerns about separation of powers suggest that clear legislative authorization should be required before courts can apply a particular area of international law domestically – and that, absent such authorization, liability should not be extended by an aiding and abetting theory.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Online Scholarship

Entangled

INTRODUCTION*

Citizenship is yet again central to contestations about the relations between state and religion. Arguments over the public recognition of cultural difference and especially the degree and type of recognition that ought to be afforded to faiths have risen to the forefront of public debate. Increasingly, these renewed state and religion debates revolve around the regulation of women and the family, placing them at the center of larger debates about citizenship and identity.

Consider the following examples: the hijab (the headscarf worn by some Muslim women) has made headlines throughout Europe, engulfing courts and legislatures from Germany to Turkey to France, not to mention the European Court of Human Rights. When the Vatican recently put together a twenty-first century list of seven social sins (drawing on the idea of the list of the seven deadly sins), it placed as the first item on the new list “‘bioethical’ violations, such as birth control.” In the United States, several jurisdictions have established covenant marriages effectively providing a legal route to stem the no-fault divorce revolution. In Egypt, on the other hand, an alliance of feminist organizations, civil court functionaries, and moderate religious authorities, has successfully led to the adoption of more gender-equitable readings of the religious tradition, which has been codified in that country’s Shari’a-informed family law code. In England, a scholarly lecture by none other than the Archbishop of Canterbury (the head of the Church of England/Anglican Church), in which the Archbishop contemplated the option of allowing non-Christian tribunals the ability to determine certain aspects of family law disputes, has received zealous criticism from across the political spectrum. This pattern of response echoed a similarly acrimonious controversy in Canada that broke out following a community-based proposal to establish a private “Islamic Court of Justice” (or darul-qada) to resolve family law disputes among consenting adults according to faith-based principles. These potentially far-reaching alterations to the legal system revolve ever more around the regulation of women and the family, placing them at the center of larger debates about citizenship and identity. These challenges cannot be fully captured by our existing legal categories; they require a new vocabulary and a fresh approach. I begin to sketch the contours of such an approach by asking what is owed to those women whose legal dilemmas (at least in the family law arena) arise from the fact that their lives have already been affected by the interplay between overlapping systems of identification, authority, and belief: in this case, religious and secular law.

While I object to the idea of conferring unchecked authority on any kind of tribunal, this does not lead me to conclude that the best response to pressing challenges raised by the reemergence of faith-based challenges in multicultural societies lies simply in restoring a strict separation of “church and state” model. This standard response is unsatisfactory, in part because of its willful blindness to the intersection of the various affiliations apparent in female group members’ lives – to their state, community, religion, family, and so on. We can surely do better in this day and age. In the following pages I offer an alternative to the conventional view that a clear line can (and should) be drawn between public and private, official and unofficial, secular and religious, or positive law and traditional practice. Instead, I explore the idea of permitting a degree of regulated interaction between religious and secular sources of law, so long as the baseline of citizenship-guaranteed rights remains firmly in place. Counter-intuitively, I argue that the prospect of regulated interaction (rather than mere adherence to strict separation) may contribute to the improvement of the protection of women’s equality and dignity under both systems, affording them the opportunity to express their commitment to both. In this richer conception of citizenship, individuals and families are afforded options to express and redefine both their citizenship and their group membership rather than being forced to sacrifice one for the sake of the other.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Online Scholarship

Neutrality, Proselytism, and Religious Minorities at the European Court of Human Rights and the U.S. Supreme Court

I. THE CRIMINALIZATION OF PROSELYTISM*

The existence of every new, non-mainstream, or minority religious group depends on the ability to make its doctrines known and to proselytize new members. Only by persuading people to change their religious affiliation (or in case of atheists or agnostics, to adopt one for the first time) will a group be able to survive as a religious community. While minority religions may on occasion compete against each other for new adherents, for practical reasons, their main target group will be the membership of the majority religion, who may react by lobbying the legislature and the administration to impose restrictions on religious teaching by minorities. This is not only a contemporary phenomenon. Michael McConnell notes that in 18th century Virginia, the most intolerant of the colonies, the Church of England was the established church and the authorities blocked efforts by Presbyterians and Baptists to preach their faith. More recently, the prohibition of proselytism came before the European Court of Human Rights in Kokkinakis v. Greece.

Kokkinakis is a seminal case, not only in its discussion of the issues of religious teaching and proselytism, but also for its discussion of freedom of religion in general. In the first case ever decided under Article 9 of the European Convention on Human Rights, the Strasbourg judges had the chance to spell out, for the first time, the principles governing religious freedom in the Convention context.

The applicant was an elderly Jehovah’s Witness living in the island of Crete. One day he visited one of his neighbors, who was the wife of the cantor of the local Christian Orthodox church, and engaged in a discussion about God with her. After her husband called the police, the applicant was arrested and charged with the criminal offense of proselytism. The offense was defined in the relevant Greek law as “any attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety.” The applicant was convicted by the trial court and the judgment was upheld by the Court of Appeal and the Court of Cassation. Kokkinakis complained before the Convention organs of a violation of his right to religious freedom under Article 9 of the Convention, as well as violations of Articles 7 (no punishment without law) and 10 (freedom of expression).

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Article Responses

Finding a Proper Role for the “Civilian-Use Model”

Responding to Lea Brilmayer & Geoffrey Chepiga, Ownership or Use? Civilian Property Interests in International Humanitarian Law, 49 Harv. Int’l L.J. 413 (2008)*

In their article “Ownership or Use? Civilian Property Interests in International Humanitarian Law,” Lea Brilmayer and Geoffrey Chepiga have attempted to identify a common purpose underlying the protection of civilian property under international humanitarian law (IHL). However, there is no such concept as “protected property” in IHL, and an approach to the protection of property and civilian goods has emerged from the application of the Geneva Conventions and other IHL instruments on a case-by-case basis.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Article Responses

Rules v. Principles as Approaches to Financial Market Regulation

Responding to John H. Walsh, Institution-Based Financial Regulation: A Third Paradigm, 49 Harv. Int’l L.J. 381 (2008)*

As the global economic recession deepens, the structure of financial institutions and the legal principles that they apply are of primary concern to investors. One aspect of the legal debate has focused on whether financial market regulation should be based on principles or rules. Generally, principles-based regulation refers to a broad set of standards that gesture in the direction of certain desired outcomes. These standards may be accompanied by guidelines about how to achieve the outcomes. By contrast, rules-based regulation is, as the name implies, based on a set of detailed rules that govern firms’ behavior. Such rules enable firms to “tick-the-box” to guarantee compliance with law.

Another possibility—institution-based financial regulation—has recently been proposed by John Walsh as an alternative to rules and principles. This approach appears to have two parts. First, the approach refers to offices that firms are legally mandated to establish. For example, the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA) require firms to establish certain offices and structures (the “institutions” to which Walsh refers) such as the Chief Compliance Officer, compliance policies and procedures, and annual self-assessments. Second, these firms will by necessity have firm-specific modus operandi or ways of functioning. The institutional approach provides them with flexibility in terms of how the required structures evolve and operate within the organization.

In this comment, I challenge the idea that institution-based financial regulation is a third paradigm within the principles-rules debate. Firms by nature utilize their discretion with regards to the way in which either principles or rules are implemented. Under principles-based regimes in particular, firms develop their own mechanisms to
comply with the overarching legal regime within which they operate. They seek to adhere to the outcome advocated under the stated principles by utilizing policies and practices that they craft themselves. Thus, institution-based regulation appears to be simply another iteration of principles-based regulation rather than a “third paradigm.”

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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