[Scott Kennedy, associate professor of Political Science and East Asian Languages & Cultures and director of the Research Center for Chinese Politics & Business at Indiana University, responds to Mark Wu, Antidumping in Asia’s Emerging Giants. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Antidumping: Less Change than Meets the Eye

Mark Wu’s article, “Antidumping in Asia’s Emerging Giants,” is an impressive piece of scholarship and deserves widespread attention. He analyzes how an already controversial element of the trading system, the antidumping regime, has become more problematic because of the growing use this tool by India and China. And he does so by assembling a comprehensive data set of antidumping cases at the national, industry, and product level for both countries.

Wu is clearly a strong critic of antidumping no matter who uses it. He shows how the standards for initiating and proving antidumping have declined over time, and that rather than ensuring fair trade, antidumping is essentially an illegitimate protectionist tool of those who want to avoid foreign competition. Wu argues that the antidumping regime is becoming a more widely abused tool because India and China have joined traditional users in wielding this weapon. If antidumping reforms are not enacted, the likely consequence will be an explosion of cases by India and China, further distorting international trade patterns and leading to welfare losses. Hence, he encourages the United States and European Union to alter their stance in the Doha Round and embrace reforms before the system they created turns decisively against them. (more…)

[Mark Wu, Assistant Professor of Law at Harvard Law School, describes his recently published article, Antidumping in Asia’s Emerging Giants. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet, this behavior has triggered little concern in the United States and Europe. Why? Two leading theories suggest that the recent spike in Indian and Chinese antidumping measures is temporary. Moreover, the balance of benefits under existing international legal rules continues to favor American and European producers. As a result, the United States and European Union have viewed attempts to reform global antidumping laws as against their interests.

This Article challenges this conventional wisdom. It argues that India and China’s antidumping regimes pose a larger long-term threat to the global trade regime than is commonly believed. Through novel empirical tests of the two leading theories, I demonstrate why China and India’s recent increase in antidumping protectionism is not temporary and not destined to level off. Instead, as more industries discover the benefits of antidumping laws and as China takes a more aggressive retaliatory stance against its trading partners, both countries’ use of antidumping sanctions will likely continue to increase. To guard against this increased protectionism, this Article argues that World Trade Organization members should reverse their opposition to reforming global antidumping rules and instead enact proposals that place greater restrictions on antidumping laws. It highlights why the present moment is an opportune time for reform, but notes that the window for reform is likely to close as China and India acquire increased economic strength.

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

I appreciate Professor Vázquez’s thoughtful response to my article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. Professor Vázquez is a brilliant scholar whose many writings on self-executing treaties have made a valuable and enduring contribution to the literature. As he acknowledges, he and I agree on many issues related to the self-execution debate. In this brief reply, I will focus on one area of disagreement: the correct interpretation of Chief Justice Marshall’s opinion in Foster v. Neilson, decided in 1829.

Marshall stated clearly in Foster that Article 8 of the 1819 treaty with Spain (the “Florida treaty”) required legislative implementation. What was the rationale supporting that conclusion? Professor Vázquez contends that Marshall applied the “intent-based approach” in Foster. Under that approach, the distinction between self-executing and non-self-executing treaties turns entirely on a treaty interpretation analysis. In contrast, I contend that Marshall applied the “two-step approach” in Foster. Marshall’s conclusion rested partly on a treaty interpretation analysis (step one), and partly on an unarticulated assumption about the constitutional allocation of authority to dispose of property belonging to the United States (step two). (more…)

[Carlos Vázquez, Professor of Law, Georgetown Law Center responds to David Sloss, Executing Foster v. Neilson:The Two-Step Approach to Analyzing Self-Executing Treaties. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties. In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic. But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson. Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster. I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends.

The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials – legislative, executive, or judicial – are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties. (more…)

[ David Sloss, Professor of Law and Director of the Center for Global Law and Policy, Santa Clara University School of Law, describes his recently published article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

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. (more…)

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris. (more…)

[Carsten Stahn responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is inter alia editor of 'The International Criminal Court and Complementarity: From Theory to Practice', Cambridge University Press, 2011. ]

One Step Forward, Two Steps Back? – Second thoughts on a ‘sentence-based’ theory of complementarity

I am delighted to comment on Kevin Heller’s thought-provoking essay. I have been following his scholarship for a number of years. It is a great honor to engage with this challenging topic on ‘Opinio Juris’. His scholarship stands out for his obvious originality and critical engagement with policy dilemmas of ICC practice. This piece is no exception. I have no doubt that it will give rise to significant debate and might even divide scholars and practitioners engaged in the complementarity debate. I share certain hesitations regarding the central claim of the article. In my view, the argument that the ICC should focus ‘exclusively on sentencing’ when determining whether ‘ordinary’ crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability. (more…)

[Darryl Robinson, Assistant Professor, Faculty of Law, Queen's University, responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

In Defence of the “Same Conduct” Test for Admissibility

Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion on complementarity (regarding when the ICC should defer to national proceedings over a case). The article has two main features. The first is a convincing critique of approaches to admissibility that would focus on the charges brought at the national level (for example, whether the state charged using international definitions or ‘ordinary’ offences). The second is a proposal to replace such approaches with one focused on the sentence.

I examine Kevin’s main arguments in more detail elsewhere (Three Theories of Complementarity). I agree with Kevin’s critiques of approaches to admissibility that focus only on the charges. However, I argue that that an exclusively sentence-based approach also raises some quite serious difficulties, including inter alia that comparing a particular sentence to international ‘averages’ is not sufficiently subtle to evaluate national proceedings. I therefore suggest a third option, a process-based approach. A process-based approach can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process. I think that Kevin’s work offers some very important insights about the limited role of charges and the potentially significant role of sentences, which should be incorporated into any theory of complementarity.

In this posting, I want to focus on one narrow issue raised in A Sentence-Based Theory and in other recent thoughtful scholarship. Kevin and others have raised important concerns about the “same conduct” test, which is the test employed by ICC chambers to determine if a state is proceeding with the same “case”. Because this question is very current in scholarship and in the blogosphere, it is timely and valuable to examine it here. While I partially agree with the concern, I will try to demonstrate that the problem is actually much narrower than it is widely perceived. (more…)

[ Kevin Jon Heller, Senior Lecturer, Melbourne Law School, describes his recently published article, A Sentence-Based Theory of Complementarity. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

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 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.

[Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, responds to David Landau, The Reality of Social Rights Enforcement. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

David Landau’s article 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. (As does Landau, I put aside the U.S. case in this comment.) 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, 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. 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. Many of the world’s poorest nations have severely limited internal economic resources. 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. One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights. (more…)

[ David Landau, Assistant Professor of Law, Florida State University College of Law, describes his recently published article, The Reality of Social Rights Enforcement. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

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 in-depth 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 benefited 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.