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A Sentence-Based Theory of Complementarity

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Article 17 of the Rome Statute prohibits the International Criminal Court (“ICC”) from pre-empting a national prosecution of an act that qualifies as a war crime, crime against humanity, or act of genocide unless the State is “unwilling or unable genuinely to carry out” that prosecution itself. Scholars have long debated to what extent Article 17 permits states to prosecute international crimes as ordinary crimes. Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions guard against unwillingness determinations and better promote the Rome system of justice.

This Article challenges both theses, demonstrating both that the best reading of the Rome Statute is that states are permitted to prosecute international crimes as ordinary crimes and that discouraging states from prosecuting international crimes as ordinary crimes is counterproductive, because national prosecutions of ordinary crimes are far more likely to succeed than national prosecutions of international crimes. This Article then defends an alternative theory of complementarity that focuses exclusively on sentence. It addresses how the Court should distinguish between acceptable and unacceptable national prosecutions of ordinary crimes. It argues that the traditional complementary heuristic, which limits states to prosecuting “serious” ordinary crimes that are based on the same conduct the ICC is investigating, is inadequate and should be replaced by a heuristic in which any national prosecution of an ordinary crime satisfies the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC. This Article also addresses the most serious objection to a sentence-based complementarity heuristic: namely, that prosecutions for ordinary crimes fail to capture the greater expressive value of international crimes. The Article concludes by discussing less radical alternatives to the sentence-based complementarity heuristic and expresses the hope that, because of increased national capacity to prosecute international crimes as international crimes, such a heuristic may eventually be unnecessary.

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Executing Foster v. Neilson

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The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create.

To provide a cogent answer to domestic implementation questions, courts must analyze domestic constitutional and statutory provisions to determine which government officials have the domestic legal authority and/or duty to implement the treaty. The inquiry necessarily begins with treaty interpretation: courts cannot properly resolve domestic implementation issues without first ascertaining the nature and scope of the international obligation. Having determined the content of the international obligation, though, the treaty interpretation inquiry is complete. The second step of the analysis necessarily moves beyond treaty interpretation to consider domestic laws delineating the powers and duties of various government officials and institutions. This two-step approach provides the best explanation of Marshall’s opinion in Foster.

The intent-based doctrine is founded on the mistaken view that self-execution is a single question to be answered by treaty interpretation analysis. In contrast, the two-step approach recognizes that the question whether a treaty is self-executing is actually two very different questions masquerading as a single question.The two-step approach directs courts to address domestic treaty implementation issues by abandoning their quest for a fictitious intent of the treaty makers, and considering a variety of domestic constitutional and statutory provisions that actually address the allocation of domestic authority over treaty implementation.

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The Reality of Social Rights Enforcement

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Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights but should do so in a weak-form or dialogical manner, whereby they point out violations of rights but leave the remedies to the political branches. These scholars argue that by behaving this way, courts can avoid severe strains on their democratic legitimacy and capacity. Based on an indepth case study of Colombia, which draws on my extensive fieldwork within that country, and on evidence from other countries including Brazil, Argentina, Hungary, South Africa, and India, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefitted middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.

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Private Securities Fraud Litigation after Morrison v. National Australia Bank

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In June 2010, the U.S. Supreme Court issued a momentous decision in Morrison v. National Australia Bank, upending decades of federal appeals court precedent in transnational securities law. The Court established a bright line, transaction-based test for when Section 10(b) (“Sec. 10(b)”) of the Securities Exchange Act of 1934 (“Exchange Act”) can apply extraterritorially. Morrison essentially requires that the fraud-related transactions at issue be conducted in the United States to allow a claim for relief in U.S. courts. This has had a significant impact on securities litigation because Sec. 10(b) and its implementing regulation, Rule 10b-5, provide the most common cause of action for securities fraud in the United States.

This new test has resulted in a narrower field for private Sec. 10(b) litigation than that available under the dominant regime before Morrison, the Second Circuit’s conducts and effects test (“conducts-effects”). Lower federal courts, principally the Southern District of New York (“SDNY”), have already cited Morrison to dismiss multiple Sec. 10(b) cases with a transnational element. But this effect may well be short-lived. In July 2010, with the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or “DFA”), Congress restored conducts-effects for transnational securities fraud suits brought by the U.S. government, while also directing the Securities and Exchange Commission (“SEC”) to conduct a study on whether and to what extent a private right of action should be extended beyond Morrison’s transactional test.

For years before Morrison, the conducts-effects test was consistently criticized on the grounds that it was overly broad and unevenly applied. While Morrison answered those who called for predictability, the Dodd-Frank Act’s partial overruling of the decision has, at least for the moment, infused this area of law with more ambiguity than it had pre-Morrison. Courts, shareholders, and companies will continue to operate in this uncertain state until at least early 2012, when Congress will receive the SEC’s report on private
rights of action and decide how to finalize the extraterritorial scope of that realm of law.

The financial, legal, and even diplomatic implications of these developments are immense. Yet all ultimately relate to a fundamental tension arising from the goal of ensuring that the United States is neither a “Barbary Coast” for “international securities pirates” nor a “Shangri-La of class-action litigation representing those allegedly cheated in foreign securities markets.” Reconciling such aims requires consideration of the ever-internationalizing nature of corporate activity and securities markets, as well as class-action litigation trends, the availability of securities fraud remedies abroad, and coherence with other areas of law in which presumptions of
extraterritoriality are made.

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The Regulatory Turn in International Law

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In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this “humanization of international law” that by the 1990s human rights had become “part of . . . international political and legal culture.” This Article argues that there has been an unnoticed contemporary countertrend—the “regulatory turn in international law.” Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal,that impose and enforce direct and indirect international duties upon individuals or that buttress and facilitate a state’s authorities respecting those under and even beyond its territorial jurisdiction. Whereas the human rights turn protected the individual against excessive governmental control, these parallel processes do just the opposite—they facilitate and enhance the regulatory authorities of government (both national and international) in relation to the individual.

The regulatory turn represents a fundamental challenge to the assumptions and dynamics of traditional international law. While once the international system shied away from acting directly on individuals,it now asserts such authority with regularity through the articulation of rules and the adoption of decisions. And while once international law deferred to states in the implementation of common rules pertaining to individual duties and their enforcement, it now often eschews state discretion and instead dictates with increasing specificity the provisions to be adopted at the national and sub-national levels. This constitutive realignment in the international system’s position vis-`a-vis the individual complicates our inherited vision of international law and the expectations that flow therefrom. The system effects include the restructuring of the distributions of power to and among states and international institutions; there framing of the ways in which international problems and solutions are imagined; the reallocation of resources to support law enforcement organizations and programs; the recalibration of the substantive and procedural demands made upon international decision-making processes; and even the reconfiguring of the ways in which we, as individuals, imagine each other.

This Article draws connections between diverse subject matters and practices, past and present, so that we can better discern the otherwise hidden trend that is the regulatory turn, situate it within the emerging system of international governance, and appraise its effects.

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An e-SOS for Cyberspace

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Individuals, shadowy criminal organizations, and nation states all currently possess the capacity to harm modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk—and the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance; but when self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws establish what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors—whether criminals or states—to deter cyberthreats.

This Article challenges the sufficiency of existing cyberlaw and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar have little deterrent effect. They may even create new problems when attackers and victims assume that different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes that states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist provides victims with assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance is reasonable. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient against any harm they impose. At the same time, an e-SOS would complement, rather than compete with, self-reliant measures and existing legal proscriptions against cyberthreats.

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