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HILJ Online Symposium: The Next Step

[Michael Waterstone is the Associate Dean for Research and Academic Centers and J. Howard Ziemann Fellow and Professor of Law at Loyola Law School Los Angeles.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. I am grateful that the Harvard International Law Journal and Opinio Juris have asked me to write a response to The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, written by Janos Fiala-Butora, Michael Stein, and Janet Lord. This Article seeks to put forward “preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment.” Given their various experiences as academics, international human rights lawyers, and academics, the authors are certainly well suited to this task (and I should note that two of the three are former co-authors and friends). As I see it, this Article makes three significant points: (1) it describes Kiss, a European Court of Human Rights decision holding that Hungary had unjustly and indiscriminately taken voting rights away from someone solely by nature of his being placed under guardianship, and critiques the decision for offering limited standards for what type of individualized inquiry is required to restrict the franchise; (2) argues that under international law, states should not be able to disenfranchise persons on the basis of disability, even in the case where individual assessments are made; and (3) challenges Martha Nussbaum’s suggestion that states should authorize guardians to vote on behalf of individuals who are neither able to form a view on political issues for themselves nor communicate their choices to others (the authors would not have a guardian exercise decisionmaking, meaning that those who cannot vote – properly construed, a small number - do not vote). There is a lot here, worthy of a response. In this post, I will primarily address the Article’s second point. Most other rights, as the authors explain, are derivative of voting, because participation in the political process is “one of the key avenues through which marginalized groups most effectively seek equality.” Thus, what law – whether domestic or international – has to say about voting is crucial (or in the language of American constitutional law, fundamental). The Article suggests that the disenfranchisement of people with disabilities generally, and people under guardianship specifically, is a failure of law. This is no doubt correct, but I would like to suggest incomplete. Law is an important step in the process, but only a first step. The history of people with disabilities being excluded from the political process demonstrates that full inclusion (something not fully and effectively realized in any state of which I am aware) requires culture change and vigorous efforts by advocates and lawyers to implement whatever changes are able to be made under the formal scriptures of law. In that sense, this Article offers an important and cogent narrative on what the law should be. I want to suggest that future work should move forward to discuss the hard work of implementing that law.

HILJ Online Symposium: Greg Shill Responds to Christopher Whytock

[Greg Shill is a Visiting Assistant Professor at the University of Denver Sturm College of Law.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I thank Professor Christopher Whytock for engaging with the ideas in my article, Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, 54 Harv. Int'l L.J. 459 (2013), and the Harvard International Law Journal and Opinio Juris for hosting this symposium. Whytock has published widely on transnational litigation and judgment enforcement. Ultimately, I think his response misreads or overstates the article’s claims in some places (and in others we may simply have a difference of opinion), but the sister-state dimension of transnational judgment enforcement has thus far not attracted much scholarly attention and I am delighted to see his thoughtful and serious commentary in this forum.

I. Judgment Arbitrage & Whytock’s Criticisms Briefly, the article focuses on the enforcement of foreign-country judgments in the United States. By its nature, this process creates the potential for clashes between domestic and foreign legal systems. In a typical case, a local court, often in the U.S., is asked to order a local defendant to satisfy a judgment rendered by a foreign court, under foreign law. Thus, unsurprisingly, scholars to date have tended to focus on the conflict between foreign sources of law and systems of justice on the one hand and their American counterparts on the other—the international-level conflict. One mission of the article is to explore domestic—i.e., sister-state—conflicts that result from the judgment-enforcement process. To collect on a foreign judgment in the U.S., a plaintiff must first domesticate it. This entails a two-stage process: the judgment must first be recognized and then enforced. Federalism and the Erie doctrine are key to this process: (1) recognition is governed by state law, specifically forum law, (2) recognition standards differ widely from state to state, and (3) states have an obligation to enforce one another’s judgments. Thus, I argue, plaintiffs can exploit sister state differences in recognition law by first obtaining recognition in a state that is receptive to foreign judgments and then enforcing in a state that might not have recognized the foreign judgment in the first place. My article gives this phenomenon the name “judgment arbitrage,” and closes by proposing a federal statute to address it. The upshot of the statute is to allow states to resist judgment arbitrage by declining to enforce judgments they would not have recognized in the first place.

HILJ Online Symposium: Is There Really Judgment Arbitrage?

[Christopher A. Whytock is a Professor of Law and Political Science, University of California, Irvine, School of Law.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. In Ending Judgment Arbitrage, Professor Shill claims that non-U.S. plaintiffs “routinely” practice a three-step strategy called “judgment arbitrage”: (1) selection of a foreign country to litigate the merits and obtain a favorable judgment; (2) selection of a “receptive” U.S. state to obtain judicial recognition of the foreign judgment; and (3) selection of a more “protective” U.S. state to obtain enforcement against defendant’s assets there (p. 470 & Figure 3). Shill argues that this practice is a problem, and uses law market theory to argue that new federal legislation is needed to solve it. Shill has written a fascinating article. To the extent judgment arbitrage exists, I agree that it would pose problems for both litigant fairness and interstate competition. In addition, Shill’s extension of law market theory to the law of foreign judgments is a valuable contribution. But Shill does little to show that judgment arbitrage actually exists, and he clearly fails to demonstrate that the practice is “routine” or otherwise significant enough to require a response from the United States Congress. In fact, the article does not identify a single real-world example of judgment arbitrage. Given that judgment arbitrage is highlighted in the article’s title, the focus of its law market analysis, and the raison d’être of its legislative proposal, this is a significant omission.

HILJ Online Symposium: Monica Hakimi Responds to Tim Meyer

[Monica Hakimi is the Associate Dean for Academic Programming and a Professor of Law at the University of Michigan Law School.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. Thanks to Opinio Juris for hosting this symposium and to Tim for his very thoughtful comments. My article examines conduct that I call “unfriendly unilateralism”—where one state decides, outside any structured international process, to act unfriendly toward another. The economic measures that the United States and Europe are now taking against Russia in response to the Crimea situation are good examples. Likewise, before the U.N. Security Council authorized states to take a broad range of measures against Iran for its nuclear program, several states acted unilaterally. Such conduct is, in my view, undervalued in the legal literature. Most international lawyers either dismiss unfriendly unilateralism as power politics that fall outside the law, or analyze it as a tool for enforcing the law—that is, for pressuring the target state to comply with existing law. In either event, the conduct is widely understood to be regretful or ineffective. To the extent that the conduct is inconsistent with the acting state’s own obligations, it also is unlawful—unless, of course, the acting state is enforcing the law after having been injured by the target’s breach. My article’s descriptive claim is that unfriendly unilateralism can also play an important role in lawmaking. States variously use unfriendly unilateralism to: (1) preserve legal norms, (2) strengthen legal regimes by instigating stricter substantive standards or more rigorous oversight mechanisms, (3) reconcile competing objectives from different regimes, and (4) recalibrate regimes for changed circumstances. Of course, the idea that unilateral conduct can be juris-generative is not new; unilateral claims and counterclaims are a recognized part of the customary legal process. But when unilateralism is coupled with unfriendliness—that is, when the conduct is targeted at a specific state—international lawyers instinctively put on their enforcement lenses. They focus on how the conduct enforces existing law, not on how it helps make new law. For instance, several scholars have analyzed the unfriendly unilateralism against Iran as enforcement. Yet the acting states were using unfriendly unilateralism to support a broad and coordinated lawmaking effort. Their principal goal was to pressure Iran into accepting stricter substantive standards on nonproliferation and more rigorous oversight mechanisms. As the Iran example also demonstrates, unfriendly unilateralism is a fairly unique mode of lawmaking. Unlike in the ordinary customary process, a state that uses unfriendly unilateralism usually does not model the new norm. Rather, its unfriendly (and sometimes unlawful) conduct pressures the target into accepting or helping to develop an entirely different norm. This makes unfriendly unilateralism a potentially versatile and potent lawmaking tool.

HILJ Online Symposium: Justifying Unfriendly Unilateralism

[Tim Meyer is an Assistant Professor of Law at the University of Georgia School of Law.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. Monica Hakimi’s Unfriendly Unilateralism is a very welcome addition to the growing body of literature on international lawmaking. Hakimi’s basic claim is that states often act unilaterally in ways that prompt changes to international law. She defines unilateral action as that which takes place outside the confines of the collective decision-making processes commonly associated with international lawmaking (p. 111). These unilateral actions can also work to the detriment of some states (hence, “unfriendly”). In the enforcement context, Hakimi argues, international law has long recognized a role for unfriendly unilateralism. Rules on countermeasures tell us when one state’s imposition of penalties on another state is excused. Hakimi’s article insightfully describes how the doctrinal focus on enforcement obscures and distorts the role that unilateralism can play in lawmaking. Hakimi makes two key points. First, descriptively, she argues that despite the focus on unilateralism’s role in relation to enforcement issues, states nevertheless use (often noncompliant) unilateral action to prompt changes in the law. Second, Hakimi argues that unilateral action can be good for international law. By overcoming the status quo bias that exists in collective decision-making procedures, unilateralism can allow the law to adapt to changed circumstances. Hakimi’s descriptive claim is very persuasive. In developing her argument, Hakimi does a wonderful job of exposing one of the central tensions in international law: that states are both international law’s subjects and its authors. International lawyers, scholars, and states must be mindful that states often have mixed motives when acting. Some noncompliant actions are simple cheating and can be addressed as such. States intend other noncompliant acts to be juris-generative, though. Treating these acts as run-of-the-mine noncompliance risks, among other things, underestimating how invested states are in using international law as a tool to enhance cooperation. Indeed, not only do states take unilateral action to prompt the law’s revision; they also build into international agreements devices that encourage unilateral action. Exit clauses, regime shifting, and soft law are common tools in states’ treaty-making practice that encourage renegotiation by permitting states to unilaterally depart from the legal status quo. As Hakimi very effectively documents, states’ resort to unilateralism—both when designing international agreements and after such agreements exist—can help circumvent the formal difficulties inherent in amending legal rules in a system in which all states must consent to their own legal obligations.

HILJ Online Symposium: Anthea Roberts Responds to Martins Paparinskis

[Anthea Roberts is an Associate Professor at the London School of Economics and Political Science and a Professor of Law at Columbia Law School.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. I want to thank Opinio Juris for hosting this symposium and Martins Paparinskis for taking the time to comment on this article. I highly respect Paparinskis’ work in the field, so I am grateful for his substantive engagement. I have two responses to his post. 1. Why is it important to develop hybrid theories? As I have argued previously, investment treaty arbitration can be understood through many different paradigms, including traditional public international law, international commercial arbitration, public law, human rights law and trade law. A number of scholars, including Douglas and Paparinskis in two articles, have likewise sought to show that (1) the investment treaty system does not fit neatly into any one mold and (2) the application of different molds often leads to radically different solutions to concrete problems. For instance, in Analogies and Other Regimes of International Law, Paparinskis recognizes that “investment law partly borrows and partly diverges from pre-existing regimes of international law” so that an interpreter is “required to determine the degree of similarity and difference so as to elaborate the ordinary meaning of both particular terms and broader structures.” Moreover, he continues, “the interpreter may plausibly rely on different approaches, with importantly different implications for the meaning and operation of particular elements of investment law.”

HILJ Online Symposium: On the Love of Hybrids and Technicalities

[Martins Paparinskis, DPhil (Oxon), is a Lecturer in Law at the University College London.] This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. I am grateful to the UCL LLM class of International Law of Foreign Investment for clarifying my thinking on some of these matters. A natural reaction to such an elegant and erudite article is to offer unqualified praise to its author. While not easily, this reaction should be resisted, as likely to lead to an uninspiring symposium contribution. Therefore, while fully acknowledging the great merit of the argument, I will focus instead on three points where I find the article less than entirely persuasive: (1) the analytical perspective of hybrid theory; (2) the application of law of State responsibility in investment arbitration, as per Italy v Cuba; and (3) the operation of inter-State investment arbitration, as per Ecuador v US. (It is only fair to say that there are very few points on which I actually disagree with Anthea Roberts, therefore I will be mostly clutching at exaggerated straw-mannish arguments.) I. Depoliticisation, fictions, hybrids, and banks of fog I will start with a trite, but hopefully not an entirely irrelevant observation. Contemporary international lawyers, unlike the lawyers of previous generations, are in possession of a reasonably complete set of rules and vocabulary on sources and responsibility in international law, which should not easily be thought to be inadequate for articulating and addressing our concerns. The different concepts and perspectives that are sometimes introduced into the legal arguments instead may be helpful, but they can also be superfluous or misleading. In investment arbitration, one example of what I have in mind is ‘depoliticisation’: a concept that (at its best) means everything for everybody, with little independent analytical value, but at its worst may be significantly misleading, erroneously suggesting with significant persuasive force that certain positive rules have or have not been created, or certain legal solutions would or would not fit the existing regime (I have contributed my two pennies here, and it seems to me that Roberts would agree, see pp 11-6). Another example, also referred to in the article (pp 32-3, 38-9), is ‘fiction’ (as ‘the fiction of diplomatic protection’). It may be that I am missing something here, but (even after rereading the leading article on the issue by Annemarieke Vermeer-Künzli) it is not obvious to me that the dutiful citations to ancient writers and cases add much to the most basic of propositions: States can create primary obligations and secondary rules of admissibility with any content whatsoever, that is precisely what they have done with (respectively) rules addressing treatment of their nationals and diplomatic protection, and there is little more to it.

HILJ Online Symposium: Volumes 54(2) & 55(1)

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below. The HILJ Online Symposium is a week-long discussion by scholars and practitioners on selected print articles from the Harvard International Law Journal. The Symposium takes place on the Opinio Juris website once or twice a year...