Author: Harvard International Law Journal

[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.

[ 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,...

[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.

[ 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...

[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.

[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).

[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.

[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.

[ 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.

[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, 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.