July 2011

A Response to Frédéric Mégret by Philip Alston

[Philip Alston responds to Frédéric Mégret's comments on Alston's recently published article, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] I am grateful to Frédéric Mégret for his very thoughtful comments on my article. Fred’s own excellent work on the accountability of “International Prosecutors: Accountability and Ethics” (available at ) is one of the few sustained and probing analyses of the difficult topic of the accountability of those playing a crucial role in what might be termed the international justice sector. At the end of the day, there is not a lot on which we disagree. The great majority of Special Rapporteurs strongly resisted the notion of a formal accountability mechanism beyond the internal and self-administered arrangements that they set up for themselves under the threat of more demanding measures being suggested by governments. It is therefore noteworthy that Fred takes the idea that there should be some mechanism more or less for granted. I think this is correct, but again as he notes, the challenge is to get the correct institutional mix, or to put it another way to include enough checks and balances so as to ensure that neither side can easily manipulate or abuse any procedure that is established.

A Response to Philip Alston by Frédéric Mégret

[Frédéric Mégret, Assistant Professor of Law at McGill University Faculty of Law and Canada Research Chair in the Law of Human Rights and Legal Pluralism, responds to Philip Alston, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] Philip Alston’s article on special rapporteurs suggests that there may be some merit on hobbling them a little, just not necessarily in the way that a majority of states at the Human Rights Council seem to want. The great merit of the article is a strong effort to highlight both sides of the debate, including the one most unsympathetic to untrammelled SR independence, by someone who is himself a special rapporteur. Indeed, it is particularly notable that Alston, who was the main target of a (failed) attempt by some states to oust him for claimed violations of the code, still finds more merit in the basic idea of rapporteur accountability than many international human rights activists. The basic premise of Alston’s article is one that is tempting for anyone who is keen on the international human rights regime, namely that rapporteurs are not as powerless as they are sometimes made to be. This is partly because of the SRs’ considérable autonomy in organizing their work, and partly because of the impact that their activity can have in a widely connected world in which a well-timed press statement can have as much if not more impact than many formal resolutions. To be consistent as a human rights lawyer (of all things), one must then acknowledge that the exercise of power entails certain responsibilities and inevitably a degree of accountability. SRs’ power is one that involves in the best of cases reporting human rights violations in ways that may lead to meaningful remedies and prevention of further violations. But it is also a power that may, for example, disrupt domestic political processes, leave some victims unattended, or entail interpretations of human rights that are contentious. In this context, the idea of SR accountability is welcome, but the devil is in the details. Alston’s arguments, essentially, is that States have tended to offer the wrong response to a good question. Partly this is because the whole Code of conduct initiative may be little more than a trojan horse to rein in SRs based on a fear that they unduly interfere with sovereignty. However note that this is not such an extravagant idea: one may think that on the whole SRs have behaved in ways that were not incompatible with the understanding of sovereignty as essentially limited by human rights, but clearly the fact that one is dealing in international rights is not a licence to meddle in any domestic matter. SRs could also be victims of a certain human rights hubris and start pronouncing on matters that were clearly beyond their remit. Special rapporteurs are not judges, for example, and it is difficult for them to pass definitive judgment on complex factual matters involving individuals. Perhaps because their normative activity is so bereft of the normal checks that accompany human rights adjudication, their pronouncements may also occasionally take liberties with such notions as the « margin of appreciation » (i.e. : the idea that some of the means to implement rights obligations ar left to states’ discretion, based on cultural and national specificity).

Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable? by Philip Alston

[Philip Alston, John Norton Pomeroy Professor of Law at New York University School of Law, describes his recently published article, Hobbling the Monitors: Should U.N. Human Rights Monitors be Accountable?. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] The critical issue I examine in this Article is whether a group of independent experts, or monitors, explicitly created to hold governments to account in terms of their human rights obligations, can be subjected to a strong accountability regime controlled by those same governments, without destroying the independence that is considered to be the system’s hallmark. In 2007, a group of powerful governments pushed through a Code of Conduct to regulate the activities of Special Rapporteurs (“SRs”), Independent Experts and others who make up the so-called Special Procedures system created by the Commission on Human Rights and inherited and expanded by the Human Rights Council. It is widely acknowledged that this group of experts, that now includes some 33 thematic mandates (focusing on, for example, disappearances, extrajudicial executions, torture, violence against women, and the rights to education, food, health, etc.), represents the Council’s most effective system for independent human rights monitoring. In 2010, in the context of major discussions about the future of the Council, the same group of governments proposed the establishment of a Legal Committee to enforce compliance with the Code through sanctions. Other governments, the SRs themselves, and civil society groups have been highly critical of the way the Code has been used so far to stifle the work of the monitors and are strongly opposed to the creation of any compliance mechanism. In many, perhaps too many, respects, the Article draws on my personal experience not just as a SR for a period of six years but as the only SR who has so far been the subject of concerted campaigns by different governments to secure a SR’s dismissal before his term of office had expired. I begin by noting the powerful pressures which have succeeded over the past decade or so in insisting that almost all international actors should be accountable, and take note of the veritable explosion of accountability mechanisms applicable almost across the board these days in relation to international organizations. I then explore in some detail the potential utility of principal-agent theory as a means by which to understand and characterize the relationship between the SRs and various potential principals, ranging from governments, the Council itself, to those individuals whose rights are being violated.

A Response to Olivier De Schutter by Katharina Pistor

[Katharina Pistor, Michael I. Sovern Professor of Law at Columbia Law School, responds to Olivier De Schutter, The Green Rush: The Global Race for Farmland and the Rights of Land Users. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] I would like to thank Opinio Juris for the opportunity to participate in this debate about one of the most pressing issues of our time: the battle for control over increasingly scarce resources, including land, water, and natural resources. The Olivier de Schutter’s “Green Rush” addresses the heightened contest for arable land globally to ensure food safety or biofuel for different peoples. Most of these transactions are transnational in scope; and they tend to pair relatively poor countries on the sell side with affluent investors or countries on the buy side. The major challenge these transactions pose is the impact they have on the people in the seller countries. There is little doubt that at least in the short term the people in countries on the buy side benefit from these transactions. It is their food security and gasoline supplements that these transactions shall secure. The impact on people in the selling countries is less certain. Some will benefit directly from these transactions as participants, intermediaries, or receivers of kickbacks, and others might find new employment opportunities; yet significant parts of the population will face dislocation, the loss of land as a source of sustenance and cultural identity. In part, these losses might be offset by cheaper food prices and a transition towards modernization. However, the scale of these benefits is highly uncertain. Global food prices have already proven much more volatile than anticipated, and earlier versions of modernization theories were not all that successful. Closer inspection reveals that the benefits for the people on the buy-side may also not be as clear. History offers important lessons for the social and political upheavals that may result from creating landless masses. The combined effect of enclosure and repeal of the poor laws forced landless people into the big cities in early modern England. While widely hailed with hindsight as a critical ingredient for England’s head start in industrialization as landless people provided cheap labor in factories, the actual outcome of social upheavals on such a scale is ultimately a gamble. England may have escaped a revolution, but Russia did not. In its own colonial hinterlands, the British Empire faced a mutiny after introducing land-titling programs in India that resulted in massive evictions of peasants from their lands. More generally, Karl Polanyi attributed the political upheavals of the first part of the 20th century – communism Russia and Fascism in Germany and Italy -- to the long-term effects of a process of social transformation that included large-scale dislocations. This conclusion remains disputed, but the proposition that dislocating large numbers of people can be politically explosive is not.

The Green Rush: The Global Race for Farmland and the Rights of Land Users by Olivier De Schutter

[ Olivier De Schutter, U.N. Special Rapporteur on the right to food and Samuel Rubin Visiting Professor of Law at Columbia Law School, Fall 2011-Spring 2012, describes his recently published article, The Green Rush: The Global Race for Farmland and the Rights of Land Users. This article is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] We have been witnessing since 2008 a global enclosure movement in which large areas of arable land change hands through deals often negotiated between host governments and foreign investors with little or no participation from the local communities who depend on access to those lands for their livelihoods. This development results from the increased volatility of prices of agricultural commodities on international markets and the merger between the energy and food commodities markets, which in turn explains the sudden surge of interest in the acquisition or lease of farmland in developing countries. Non-governmental organisations have denounced this phenomenon as "land-grabbing", because of the risks involved for the communities who currently depend on land for their livelihoods, and who are not adequately protected from evictions and may be priced out of this new market for land rights. Most commentators recognize that these transactions should be more closely scrutinized, particularly since these land deals primarily take place in relatively weakly governed countries, where corruption is frequent. However, some also see opportunities in this development. They see the arrival of investors leasing or buying land as resulting in more investment in agriculture and thus productivity gains ; or they consider that the development of a market for land rights that could benefit current land users, provided their property rights are recognized through titling schemes. This Article questions these views. Based on an analysis of the relationship to property rights of different categories of land users in the rural areas in developing countries, it argues that the poorest farmers will be priced out from these emerging markets for land rights, and that the interests of those depending on the commons will be ignored. The Article suggests that there are other ways to protect security of tenure: anti-eviction laws, tenancy statutes, and policies aimed at ensuring more equitable access to land. Although measures such as these require a disaggregation of property rights and an abandonment of the Western understanding of property as necessarily implying transferability, they may offer more promising solutions to the rural poor. It is by exploring these alternative arrangements by which land users can be protected that we can avoid situations in which, in the absence of adequate support, small-scale farmers will lose their land after having mortgaged it or as a result of distress sales. And it is through such arrangements that the rights of land users that depend on communal lands for their livelihoods—including herders, fishers, and forest-dwellers—can be better taken into account.

Duncan B. Hollis Responds to Professors Eric Jensen and Jonathan Zittrain

[This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] First, I want thank both Eric Jensen and Jonathan Zittrain for taking the time to respond to my article.  Both have thought long and hard (not to mention well!) about regulating cyberspace. Eric's early work assessing computer network attacks under the legal rules on use of force was one of...

Jonathan Zittrain responds to Duncan Hollis

[Jonathan Zittrain, Professor of Law at Harvard Law School and Co-Director of the Berkman Center for Internet & Society, responds to Duncan Hollis, An e-SOS for Cyber-Space. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] Duncan Hollis’s e-SOS article reinforces several important insights. The first emphasizes that the current state of computer and network security is bad and getting worse, and that traditional responses are insufficient. These responses include the self-help of installing layers of firewalls and anti-virus mechanisms, as well as government intervention through traditional rule and sanction against bad acts. My own thinking around alternative responses and their respective inadequacies is structured around four quadrants.¹ Two depend on singular and universal application to work; while two draw their power from competition. Government action is in the former category. Wrongs are defined, and in the most simple model, the state then acts against wrongdoers. Corporate and individual responses are in the latter category because they are less encompassing and more varied. The hope is that from that mix, new solutions can emerge, as, for example, each anti-virus vendor strives to offer the most complete and rapidly-updated definitions.

Eric Jensen responds to Duncan Hollis

[Eric Jensen, Visiting Assistant Professor of Law at Fordham University Law School, responds to Duncan Hollis, An e-SOS for Cyber-Space. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] Drawing on the familiar and effective maritime principle of an SOS distress call, Professor Hollis argues in his paper that an analogous system should be established to respond to cyber distresses. The paper is extremely well researched and written and presents a very innovative idea certainly worth considering, and if not accepting, at least building upon to address the significant need for better responses to cyber threats. To his credit, unlike many commentators in the area, Hollis doesn’t just identify the problems, but proposes a solution that certainly has merit and is based in current international law. In addition to Hollis’s proposal which I will address below, two of the best aspects of the paper are the factual data compiled as the introduction and the analysis of the attribution problem. Though both sections are designed to be background for Hollis’s main point, they are among the most articulate and complete in the current literature.

Jacob Katz Cogan responds to John H. Knox

[Jacob Katz Cogan, author of The Regulatory Turn in International Law, responds to comments by John H. Knox. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] I would like to thank John Knox for his very thoughtful and quite generous response to my article The Regulatory Turn in International Law. In a number of ways, the article builds on John’s own scholarship – particularly his excellent Horizontal Human Rights Law, 102 American Journal of International Law 1 (2008). So it is particularly appropriate for us to continue the discussion here today. John’s response focuses on private duties in the context of human rights, and he argues that “[h]uman rights law has always been concerned about threats to human rights from non-state actors.” Recent developments, then, are “an intensification of a long-standing characteristic.” I don’t disagree. As John notes, and as discussed the article, “treaties requiring states [for example] to regulate individuals and corporations to suppress slavery, labor abuses, and racial and gender discrimination” predated the late 1980s, which is the date I point to as the beginning of the regulatory turn. And he is correct to conclude that “the challenge of distinguishing between duties that undermine human rights and those that promote them is not new.”

John H. Knox responds to Jacob Katz Cogan

[John H. Knox, Professor of Law, Wake Forest University, responds to Jacob Katz Cogan, The Regulatory Turn in International Law. This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] In The Regulatory Turn in International Law, Jacob Katz Cogan takes on a big topic:  the increasing regulation of non-state actors by international law.  Because this development is occurring in so many areas of international law, its full extent can be difficult to grasp.  As the article explains, it is not simply an aggregation of many changes in different fields, but a sea-change in the orientation of the entire international legal system. Even an article that merely identified this “regulatory turn” would be of great importance.  But this article does much more than that.  It provides a historical narrative, it pulls together examples from many different regimes and explains how they constitute common types of regulation, and it analyzes the effects of this development on the international system as a whole.  The result is a seminal work that will influence later scholarship for years to come.