Virginia Journal of International Law, Vol. 49-4: Online Symposium

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles and two essays recently published by VJIL in Vol. 49:4, available here.

Today, Dr. Anne T. Gallagher, Head of Operations of Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and former UN Adviser on Trafficking, will discuss her article Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway.  In a Fall 2008 article published in the Virginia Journal of International Law, James Hathaway questions whether the elimination of trafficking is a worthy objective and an appropriate focus for international law.  Specifically, he charges that while the elimination of trafficking is billed as the answer to contemporary slavery, the focus on trafficking has unfairly ‘privileged’ a small group of exploited individuals and diluted efforts that could have been better spent addressing the much broader problem of human enslavement.  Hathaway also asserts that those human rights advocates and practitioners engaged on the issue of trafficking have been hoodwinked by preferred destination countries into supporting a covert extension and tightening of border controls, thereby driving migratory demand into the black market and increasing the difficulties faced by refugees seeking to access their right to protection under international law.  Gallagher provides an alternative and a sharply differing perspective on the global battle to combat trafficking. In considering each of Hathaway’s major concerns in turn, she identifies a number of serious flaws in both interpretation and application.  In terms of the broader legal and political context, Gallagher concludes that far from damaging human rights, the issue of trafficking provides unprecedented opportunities for the renewal and growth of a legal system that, until recently, has offered only platitudes and the illusion of legal protection to the millions of individuals whose life and labor is exploited for private profit.

Dr. Jean Allain of the Queen’s University of Belfast School of Law and Professor Ryszard Piotrowicz of Aberystwyth University will serve as respondents.

On Tuesday, Professor CarrieLyn Donigan Guymon, Adjunct Professor, Golden Gate University School of Law, will discuss her article The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters. Professor Guymon reviews the legal framework in the United States for freezing the assets of individuals and entities engaged in proliferation related activities, as well as those of their supporters.  Professor Guymon argues that the U.S. strategy over the past several years should be placed within both the context of past efforts by the United States and the context of international sanctions aimed at countering the threat of proliferation.  While these nonproliferation sanctions regimes entail some litigation risks, those risks—like the risks entailed in the very similar terrorism-related sanctions regime—are minimal.  Professor Guymon argues that rather than dismissing nonproliferation sanctions based on their perceived lack of effect in achieving the desired change in behavior by proliferators, the United States and the international community must maintain nonproliferation sanctions because these sanctions protect the integrity of the national and global systems and actors within the jurisdictions imposing them. By distancing themselves from proliferators and their supporters, the United States, other countries, as well as voluntary private actors, seek to avoid the potential realization—after that dreaded day when terrorists deploy weapons of mass destruction (WMD) that they had a part in aiding or abetting such a horrible catastrophe.  Professor Guymon contends that the approach used by the George W. Bush administration in its second term, in blocking assets of proliferators and their supporters while also seeking similar actions on the part of key allies and the private sector, strikes the correct balance in protecting that integrity without being overly punitive in a way that would strengthen opposition to U.S. policies.  The strategy also properly balances the sometimes dueling concerns of protecting national security and maintaining internationally recognized minimum standards such as due process.
Paul B. Dean, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, will serve as respondent.
On Wednesday, Professor Lisa J. Laplante, Visiting Assistant Professor, Marquette University Law School, will discuss her article Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes.  Professor Laplante explains that until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights. The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities.  Latin America exemplified this trend in the 1980s, while also popularizing truth commissions.  The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful.  However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties.  Currently, scholars now acknowledge that to be legitimate, amnesties must conform to legal norms thus creating a standard of ‘qualified amnesties’ for certain enumerated international crimes.  Yet, this discourse suggests that it is still possible for nations to resort to amnesties for other serious human rights violations during political transitions.  Professor Laplante responds to an apparent gap in the scholarly literature that fails to fully merge the fields of human rights law and international criminal law, a step that would resolve the current debate as to whether any amnesty in transitional justice settings is lawful. Specifically, Professor Laplante discusses the Barrios Altos case, a seminal decision issued by the Inter-American Court of Human Rights in 2001 that declared the amnesty laws promulgated in 1995 by former Peruvian president Alberto Fujimori to be contrary to international law.  Recent scholarship has ignored this decision, or otherwise interpreted it overly narrowly, despite its potentially sweeping impact on the field of transitional justice.  Professor Laplante responds by offering a more in-depth understanding of the Barrios Altos decision in order to inform the ongoing academic debates on the evolving doctrine on amnesty in transitional justice schemes.  Professor Laplante also shares the particular case study of Peru to show how international law directly impacts national transitional justice experiences.  She suggests that the truth v. justice dilemma may no longer exist: instead, criminal justice must be done.

Professor Ron Slye of Seattle University School of Law will serve as respondent.

On Thursday, Professor Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, will discuss his essay The Inevitable Globalization of Constitutional Law. Professor Tushnet’s essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a “post-war paradigm” of domestic constitutional law and competing claims about national exceptionalism, Professor Tushnet sketches the “top down” pressures for convergence – judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. He then turns to “bottom up” pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. Professor Tushnet discusses whether the mechanisms he identifies lead to a race to the “top,” to the “bottom,” or to some more variegated location, and concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers.

Professor Robert Ahdieh of Emory Law School and Professor David Fontana of the George Washington University School of Law will serve as respondents.

On Friday, Nigel Purvis, President of Climate Advisers, will discuss his essay The Case for Climate Protection Authority.  Purvis argues that the United States should classify new international agreements to protect the Earth’s climate system as executive agreements rather than as treaties.  Unlike treaties, which require the advice and consent of two-thirds of the Senate, executive agreements are entered into either solely by the President based on previously delegated constitutional, treaty, or statutory authorities, or by the President and Congress together pursuant to a new statute.  Although limits exist on the types of climate agreements the President could enter into without the approval of Congress, the President’s authorities are broader than many policymakers realize and could be relied on if Congress fails to craft a strong bipartisan policy.  Purvis explains that the President and Congress should handle the most significant climate change agreements—ones that would limit U.S. greenhouse gas emissions, change the terms of international trade, or impose substantial costs on the U.S. economy or treasury—as congressional-executive agreements, which require approval by a simple majority of both houses of Congress.  Handling climate agreements as congressional-executive agreements would speed the development of a genuinely bipartisan U.S. climate change foreign policy, improve coordination between the executive and legislative branches, strengthen the hand of U.S. climate negotiators to bring home good agreements, increase the prospects for U.S. participation in those agreements, protect U.S. competitiveness, and spur international climate action.  As a matter of U.S. law, virtually any international agreement the United States rightfully could join as a treaty it could implement as a congressional-executive agreement.  Congressional-executive agreements are far from novel: they are, by far, the most common form of international agreement entered into by the United States. Congressional-executive agreements are used by the President and Congress to tackle dozens and dozens of important global issues and, in both legal and policy terms, they are ideally suited for the climate problem.  More specifically, Purvis contends that Congress should enact “Climate Protection Authority,” which would define U.S. negotiating objectives in a statute and require the President to submit concluded congressional-executive agreements to Congress for final approval.  This approach should apply both to the new global climate change agreement being negotiated in the United Nations by the United States and the rest of the international community and to other future arrangements with a smaller number of major emitting nations.

Daniel Bodansky of the University of Georgia Law School will serve as respondent.

We encourage you to join in the discussion online this week. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.