Virginia Journal of International Law, Vol. 50-1: 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 pieces recently published by VJIL in Vol. 50:1, available here.

On Wednesday, Professor Alexander K.A. Greenawalt, Associate Professor of Law, Pace University School of Law, will discuss Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court. Professor Greenawalt examines the difficult institutional problems faced by the International Criminal Court (ICC or Court) in the context of the Ugandan peace process. In recent years, the government of Uganda has been engaged in peace talks with the rebel Lord’s Resistance Army (LRA) to end the nation’s devastating civil war. In 2005, the ICC issued arrest warrants for a handful of LRA leaders accused of crimes against humanity and other grave offenses. Although it was Uganda that initially referred the matter to the ICC, the government later took the position that it would seek withdrawal of the ICC warrants if the accused agreed to undergo a traditional tribal justice ritual requiring a public confession and an apology without threat of incarceration. Professor Greenawalt argues that the Ugandan peace process presents the ICC with its first crisis of this kind. As indicated by the Ugandan experience, Professor Greenawalt explains that the Rome Statute leaves fundamental questions unanswered regarding how far states recovering from mass violence should be required to go in pursuit of criminal justice. Professor Greenawalt proceeds to consider both the interpretive dilemmas facing the Court and the efforts of Prosecutor Luis Moreno-Ocampo to address them. Specifically, he explains that although the ICC is structured to give deference to domestic proceedings, application of Article 19’s framework for complementary jurisdiction, and the Article 53 “interests of justice” dictate to the Ugandan peace process reveals deep uncertainties regarding the ICC’s core relationship to domestic governance. Professor Greenawalt concludes that the Ugandan peace process reveals the Court to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders.

Professor Mark A. Drumbl of Washington and Lee University School of Law will serve as respondent.

On Thursday, Professor John H. Knox, Professor of Law, Wake Forest University School of Law, will discuss Climate Change and Human Rights Law. Professor Knox seeks to identify certain duties that international human rights law places on states to address the effects of climate change on human rights and to provide a framework for further clarification of these duties. To that end, Professor Knox looks to the jurisprudence that human rights tribunals have established to address other types of environmental harm to human rights. Professor Knox explains that this jurisprudence sets out detailed duties, including prior environmental impact assessment, full participation in decisions by those affected, judicial recourse, and compliance with minimum human rights standards. He then argues that such duties can and should be extended to apply to global environmental harm such as climate change. Although Professor Knox discusses practical and legal obstacles to this extension, he ultimately finds a feasible legal basis in the duty of states to cooperate to address common challenges to human rights, a duty rooted in the Charter of the United Nations and the International Covenant on Economic, Social and Cultural Rights. Professor Knox determines that although the international effort to address climate change complies with human rights norms in some respects, states must do more to ensure that the ongoing climate negotiations result in an agreement that provides both for the reduction of greenhouse gases to levels that will not interfere with the human rights of those vulnerable to climate change, and for adaptation to unavoidable changes that would otherwise harm their human rights.

Marc Limon, Counsellor, Mission of the Government of the Maldives to the United Nations, in Geneva, Switzerland, will serve as respondent.

On Friday, Professor Alvaro Santos, Associate Professor of Law, Georgetown University Law Center, will discuss Labor Flexibility, Legal Reform, and Economic Development. Professor Santos argues that the dominant understanding of labor flexibility-a binary between flexibility and rigidity-is misguided and should be revised. To illustrate the shortcomings of the dominant conception, he turns to the highly influential World Bank project “Doing Business.” The Doing Business reports propose legal “best practices” in labor and employment regulation, heralding so-called labor law “flexibility” as a recipe for economic development. Professor Santos argues that the project’s assessment of labor law flexibility contains a number of very serious omissions that seem to stem from a flawed understanding of regulation. Specifically, Professor Santos contends that the Doing Business indicators fail to consider the full range of legal sources by relying primarily on the written law, while remaining blind to the reality of law in action and to widespread economic informality. On the whole, Professor Santos argues that Doing Business promotes a conception of legal flexibility that fails to capture the insight that flexibility for some may mean rigidity for others. As an alternative, Professor Santos develops a framework that unpacks the concept of labor flexibility by assessing the respective entitlements of employers and employees in the labor market. The framework he proposes shows the need for two analytical steps that are currently missing in the literature. First, he argues that it is necessary to undertake a doctrinal assessment of the respective rights, duties, and privileges of the different players in the labor market. Professor Santos contends we need to ask: flexible for whom? Second, Professor Santos argues that we need to pay attention to the social links between the legal regime and the realities of economic life, and that we must pay particular attention to the differences between the formal and informal economic sectors. Based on this analysis, Professor Santos lays out a typology of three different labor regimes that combine flexibility and rigidity in different ways and that can coexist within the same economy and the same country. Professor Santos argues this framework provides a better comparative description of countries’ current labor regimes, as well as their size and distribution in the economy. This framework can serve as a better lens through which to analyze the labor regimes that underpin successful development experiences, and it could, therefore, also provide better guidance for labor regulatory strategies.

Professor Katherine V. Stone of UCLA School of Law will serve as respondent.

We encourage you to join in the discussion online this week by sharing your questions and thoughts in the comment boxes below each posting. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.