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Stewart Mini-Symposium: A Response to Steven Ratner

by James G. Stewart

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

Steven Ratner enjoys the unequalled distinction of being one of the world’s leading scholars in both international criminal justice and the theory of corporate responsibility for human rights violations. As such, it is a great privilege to engage with his criticisms of my recent paper. Ratner offers three core criticisms of my article, protesting that corporate criminality is not quite the promising terrain I posit. To my reading, the first of these criticisms amalgamates an array of shorter points that I treat briefly given space constraints, whereas the latter two deal more with retribution as a basis for corporate accountability and the limits of ICL as a vehicle for ensuring accountability in the field of business and human rights. I deal with each of these three sets of thoughtful criticisms in turn.

Ratner’s first category raises a cluster of shorter objections. In the interests of space, I respond to several briefly here in bullet form, without I hope seeming dismissive of important questions that require far greater discussion than I can deliver presently:

  • Ratner suggests that my article is a “response to the demise of the ATS vehicle.” Actually, this research spans eight years and would still hold true if the US Supreme Court had reached the diametrically opposite conclusion in Kiobel. Mostly, it is a reply to the experience of investigating atrocities in Africa, not a response to the demise of the ATS at all.
  • Ratner argues that “ICL is not an alternative to the ATS” and Kiobel does “not call for switching to criminal liability.” I agree. I do not argue for “switching,” but place a great deal of emphasis on thinking of ICL as part of a very wide set of regulatory initiatives and projects. I compare ICL and ATS to dispel the assumption that the two frameworks will have the same problems.
  • Ratner suggests that I think “conceptual problems in the ATS caselaw somehow doom civil liability.” This is not my view. I am careful to insist that “nothing here is an attack on the ATS as such—I view it as an important form of accountability—I merely join others in positing that it frequently needs supplementing with something stronger.”
  • Ratner argues “why assume states will pass criminal statutes (even covering obvious international crimes) covering conduct of their companies abroad”. Mostly, this horse has already bolted. As the paper shows, most states have already passed this legislation. In this sense, corporate criminal liability for international crimes mimics the ATS—both involve the “discovery” of a latent legal framework waiting to be employed;
  • Ratner argues that “it is not clear how switching to the ICL model eliminates… the very problem that Kiobel addressed. i.e., the extraterritorial reach of domestic law.” Although I acknowledge not addressing extraterritoriality in depth in my introduction, I do cite evidence from a comparative survey which concluded that 11 of 16 states surveyed have jurisdiction over international crimes perpetrated by their nationals overseas.
  • Ratner also objects that “if we think… diversity of criminal law accomplice liability standards is suboptimal, then states will need to incorporate not merely the definitions of crimes in international law into their domestic law, but also an international notion of accomplice liability.” I address this question in this paper under the sub-heading Toward a Moral Theory of Accomplice Liability, and within a separate piece recently on pluralism in international criminal law.

In his second set of criticisms, (more…)

Stewart Mini-Symposium: From the ATS to Corporate Criminality under ICL — Mind the Gap

by Steven Ratner

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

James Stewart’s “The Turn to Corporate Criminal Liability for International Crimes” provides an important contribution in the ongoing debates regarding corporate accountability for human rights violations, a debate that has assumed even greater prominence since the publication of the UN’s Guiding Principles and an ongoing process of discussions within the UN on new strategies for businesses to respect human rights. Stewart makes three compelling points with which I think most observers of the topic would agree. First, many human rights advocates and scholars have had far too much faith in the ATS as a vehicle for accountability, leading to undue disappointment in its limited scope after Kiobel. Second, the ATS jurisprudence was marred by doctrinal confusion, the straitjacket of identifying norms as customary international law, and concerns that courts were acting at odds with legislative and executive branch policy. Third, international criminal law (ICL) offers a potentially useful tool for corporate accountability in overcoming some of the difficulties of the ATS. The acceptance of corporate criminality in many states offers a domestic law mechanism for trying corporations.

Despite my agreement with the thrust of the piece and the need to tackle what has remained a marginal method of corporate accountability, I think corporate criminality is not quite the promising terrain for corporate accountability that Stewart’s analysis suggests, for three different reasons.

Ÿ First, the link between the ATS and ICL that dominates the piece (e.g., calling them “brother[s]-in-arms”) — and thus views ICL as a response to the demise of the ATS vehicle – seems somewhat strained. The ATS was and remains a uniquely American statute – there is none other like it in the world – and despite great faith in it by some, my sense is that sophisticated human rights advocates never saw it as the major forum for even judicial accountability of corporations. ICL is not an alternative to the ATS; it is an alternative to other forms of corporate responsibility, including civil responsibility, loss of reputation, and other ways that corporations can be held to account for any human rights violations. The post-Kiobel constraints on the ATS, and the conceptual confusion before Kiobel, thus do not themselves call for switching to criminal liability. Most obviously, civil liability may be viable in other venues, as seen in the other lawsuit against Shell, in the Dutch courts.

Moreover, even if we think the conceptual problems in the ATS caselaw somehow doom civil liability, it is not clear how switching to the ICL model eliminates one serious problem with all efforts by home states to regulate corporations through national law — the very problem that Kiobel addressed, i.e., the extraterritorial reach of domestic law. While international crimes are subject to universal jurisdiction, universal jurisdiction is still only permissive and not mandatory. The duty, if there is one, for states to punish all international crimes (e.g., as suggested in the preamble to the ICC Statute) is a very weak one; the only clear duties are those in specific treaties like the Torture or Disappearances Conventions. So why assume that states will pass criminal statutes (even covering obvious international crimes) covering conduct by their companies abroad, let alone that they will criminalize conduct by foreign companies against foreigners abroad? Though certainly states have interests in regulating much overseas corporate conduct (making the Kiobel majority’s presumption completely antiquated), they still have many reasons not to criminalize extraterritorial human rights abuses, either by individuals and corporations. True, states have shown the political will to criminalize some corporate conduct abroad through the UN Corruption Convention, but that took thirty years of American pressure, dictated by a commercially driven desire to level the playing field.

It is also not clear how the move to ICL eliminates one of the other problems that Stewart thoughtfully identifies regarding the ATS caselaw – the muddied notion of accomplice liability. Although domestic criminal laws define degrees of complicity, they vary significantly throughout the world. That is not a problem if we are content with a corporate criminality regime that tolerates significant diversity across states, but in that case, why not just rely on diverse notions of civil or even administrative liability around the world? If, on the other hand, we think such diversity of criminal law accomplice liability standards is suboptimal, then states will need to incorporate not merely the definitions of crimes in international law into their domestic law, but also an international notion of accomplice liability. (more…)

Let’s Be Real: An International Anti-Corruption Court Would Never Work

by Julian Ku

I only recently learned about an effort by U.S. anti-corruption crusaders to win support for an “International Anti-Corruption Court” modeled on the International Criminal Court. US judge Mark Wolf from Massachusetts is spearheading this idea, especially with this article here, and a briefing was even held recently on Capitol Hill on the idea and the UN Human Rights Commissioner seems interested.  This is troubling since I presume these folks have other things to do and this whole IACC idea seems like a colossal waste of time.

I don’t disagree with Judge Wolf that corruption is a huge problem, and that it needs to be punished.  But I am baffled as to why he thinks creating an international court modeled on the ICC is a useful way to proceed.

Any justification of an International Anti-Corruption Court is almost certainly based on the idea that an IACC could more credibly deter corruption among government officials than national laws could on their own. As a theoretical matter, I suppose that is possible.

But, as the ICC has discovered, acquiring custody of government officials whom national governments are unwilling and unable to punish, but willing to grab and turn over, is really, really, hard.  Because relying on member states to turn over their own people is the primary (even exclusive) way an international court can acquire custody, it has always been puzzling to me that folks believed the ICC would provide much additional deterrence to potential criminal defendants.  Getting other member states to turn over defendants who escape to their jurisdiction is a bit easier, but not much.

I just don’t see any reason to think an IACC system would work better. Indeed, it would probably deter far less since it will also be overwhelmed with complaints (everyone thinks their local government guy is corrupt).  There is also various tricky questions of sovereign immunity, which seem more plausibly waiveable for serious international crimes than for even high-level corruption.

So my message to Judge Wolf:  The world doesn’t need another high-profile well-intended but largely ineffectual international court. We have plenty of those already, thank you.

So It Turns Out US Ratification of the Convention on the Rights of the Child Would Be Pointless

by Julian Ku

Internationalists critical of U.S. “sovereigntism” almost always point out that the U.S. is one of only three states in the world that has not ratified the U.N. Convention on the Rights of the Child (CRC).  Karen Attiah is the latest to take up this old talking point in the Washington Post.

The United States is part of an elite trio of non-ratifiers, along with Somalia, a country that is virtually in anarchy and consistently appears in the lowest ranks of countries in terms of human development, and South Sudan, the world’s newest country, which dealt with a fair share of civil conflict. Back in 2008, Obama said that it was “embarrassing to find ourselves in the company of Somalia, a lawless land.”

Attiah argues that the rest of world seems to be making lots of progress in improving child welfare, presumably because of the CRC, and the U.S. is falling behind. But this argument buries the lede.  Why?

Because even if the U.S. accedes to the CRC, it is almost certainly going to do so without passing new legislation or enacting new programs to live up to the treaty’s obligations. As it has done with other human rights treaties it has ratified, the U.S. will also declare the CRC non-self-executing, which means it cannot be enforced by US courts absent subsequent legislation by Congress or the States.  It is highly unlikely that US law or policy will be affected dramatically by joining the CRC if these limitations are imposed.

Rather, the argument for joining the CRC is usually not about changing US policy, but simply about the need for the US to be a member in order to credibly promote and support CRC rights and the interest of children around the world.  As an analyst from Human Rights Watch notes in the Economist, “It is awkward when the US tries to promote child rights in other countries—they all remind us that they’ve joined the treaty and we have not.”

If the data Attiah cites is accurate, though, US non-ratification isn’t having much of an impact on whatever benefits the CRC is providing.  Of course, it may be the case that US non-ratification is limiting whatever additional benefits US promotion of the CRC as a member would provide, but this seems unlikely.

Of course, if the CRC is unlikely to change US law or policy, why should anyone oppose it? This is indeed a mystery. The best case I can come up with is that CRC opponents do not trust the Congress, the President, or the courts to honor the non-self-executing pledge that the US has imposed on all other human rights treaties.  This is not totally unreasonable since some leading scholars have questioned the non-self-execution doctrine in this case.   But US courts have not yet shown any interest in forcing human rights treaties into US law against the wishes of the president and Senate, so this fear is somewhat overstated at this stage.

In the end of the day, Attiah’s reporting answers her own headline-question.  The US hasn’t ratified the CRC because doing so would not change the status quo much, if at all.  US policies domestically will be basically the same with or without the treaty, and (as Attiah points out) the rest of the world will do just fine whether or not the US joins.  So US ratification will accomplish pretty much nothing, which is as good a reason as any for why it is not going to happen.

Stewart Mini-Symposium: A Response to Samuel Moyn

by James G. Stewart

[James G. Stewart is an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia. His new article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, can be found here.]

We occupy a curious point in history. Despite an understanding that corporations enabled slavery, were at the vanguard of colonialism, either fuelled or instigated the Second World War, and now provide key inputs to modern atrocities of all stripes, there is very nearly zero accountability for corporate violations of basic human rights norms. What a pleasure, then, to have Samuel Moyn critically reflect on this sorry state of affairs we have inherited and whether corporate criminal liability for international crimes will mark an important departure from everything that came before or merely a new mechanism for distracting our gaze from the obvious structural misalignments that inhibit human dignity most acutely.

I find Moyn’s assertion that our ancestors were more ambitious that us an attractive one. In the same breadth, I often muse with students how significant it is that we live during the initial years of a permanent international criminal court, itself an unspeakably ambitious project. In 1872, Gustave Moynier, the Swiss jurist and founder of the International Committee of the Red Cross proposed an international institution of precisely this sort, which was later revisited in the Paris Peace Conference of 1919 and then the Genocide Convention of 1948. So, with respect to our ambitions for international criminal justice, we fare fairly well in a comparison with our ancestors. Moreover, for better or worse, we have definitely outstripped them in terms of execution.

Importantly, the rise of the international criminal justice we have brought about isn’t limited to international institutions; instead, it has seeped into national courts in a remarkable process of transnational acculturation. Quite suddenly, state legislatures found themselves implementing international crimes into their domestic criminal codes, national law enforcement agencies are creating specialist war crimes units with increasing frequency, and cases involving international crimes are arguably as numerous locally as they are internationally. This past summer, I even sat through the Blackwater trial in Washington D.C. (see initial commentary here), partly out of a sense that even the United States was slowly surrendering to the trend.

The question for present purposes is, will the march of international criminal justice halt at the doors of businesses or extend to and engulf the commercial sides of atrocity, too? Will WWII cases against “industrialists” (an archaic term that I think distances these historical precedents from contemporary realities) remain quaint relics of experimentalism in the immediate post war, or will they have some salience to the plain legal parallels with modern warfare, especially in Africa? Whatever the future holds in these respects, there’s no doubt that the past has much to still teach us.

On that score, Moyn’s recitation of the traditional history of corporations in Nazi Germany is disputable. In an outstanding new thesis, Grietje Baars argues that the standard narrative of “industrialists” as auxiliaries to Hitler’s expansionism gets the relationships backwards. “Industrialists,” according to Baars, either enjoyed ascendancy over Hitler or existed in a far more horizontal relationship with leaders of the Nazi Party than historians have let on. As the Nuremberg Judgment itself recounts, “In November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” (Nuremberg Judgment, p. 177). If accurate, this history helps highlight the limitations of focusing on complicity alone within the business and human rights discourse, and brings home the importance of thinking very seriously about our topic.

In his kind response to my article, Moyn rightly recognizes that I see ICL as supplementary to other regulatory strategies, including the Alien Tort Statute (ATS). He writes that “I agree with Stewart that it would be dubious, not to mention counterfactual, to suppose that a focus on atrocity (whether through criminal law or civil liability) somehow rules out bigger regulatory ambition.” Nonetheless, he sees two provisos, which I address now in turn.

(more…)

Stewart Mini-Symposium: The Ambitious Past of Corporate Regulation

by Samuel Moyn

[Samuel Moyn is professor of law and history at Harvard University. He is on Twitter at @peiresc.]

During the absorbing litigation that led to the death of Alien Tort Statute litigation a couple of years ago, one of the most fascinating moments occurred late, and it has not been mentioned since.

In the Second Circuit phase of Kiobel v. Royal Dutch Petroleum, Judge José Cabranes had contended that the International Military Tribunal at Nuremberg proved there was no norm in customary international law of corporate civil liability. If so, he had asked, how could he find for the plaintiffs? In response, a bevy of renowned historians filed an amicus brief on appeal to the United States Supreme Court, contending that the reason Judge Cabranes had failed to find civil liability was because the Allies had been willing to destroy the corporations that participated in Nazi evil. The greater included the lesser: if they could go that far, would they really have rejected civil liability for corporate atrocities? Then another group of historians, including Jonathan Bush, filed an amicus brief not so ardently focused on serving the human rights movement (though not opposing it either). No longer indentured to the instrumental if understandable project of reading the past for present ends, these historians revealed that our ancestors were more ambitious than we are.

In their treatment of corporations, Bush and his colleagues said, the Allies hadn’t really been interested in atrocities anyway, or merely aimed at the low bar of sanctioning them. Rather, Nuremberg lawyers had been New Dealers; they had thought a lot about corporations, especially in the antitrust context; and it was this thinking that motivated them to break up (not destroy) I.G. Farben and take the other steps they did. More generally, an attitude of politically organizing business properly to avoid aggressive war mostly prevailed, not atrocity consciousness for the sake of victims seeking compensation. It was one of those things that seemed self-evident as soon as the historians said it, even if the insight got lost in the shuffle of the litigation, with its necessarily opportunistic attitude toward the past. Yet the prospect that opened in the midst of the litigation wasn’t merely self-evident, it was exciting. In the old days, corporations were regulated in the name of a theory of the healthy role they could and must play in a democracy. They were not simply unbound — as they have been since the conservative legal movement set the terms of corporate law nationally and internationally — and then at most taxed after the fact when they went awry.

Granted, the corpse of ATS may twitch for a long time and – who knows? – may one day find itself resurrected under different political circumstances. It is to his great credit, however, that James G. Stewart has turned away from searching frantically for signs of life in the fallen statute, in order to explore other fruitful approaches. Anyway, how much good did the ATS do, even before it was cut down? (Full disclosure: I have been flamed on this blog simply for raising this question, as if the burden weren’t on advocates of the ATS strategy to prove how much difference it has made, and to consider it in relation to other possible political and legal strategies.)

I won’t comment much on Stewart’s alternative, corporate criminal liability, in part because his other respondents know a lot more about the details. His reading of the tea leaves of the Argor-Heraeus case seems speculative but impressive, and his assessment of the doctrinal possibilities of criminal liability relative to the ATS strategy is interesting. As Stewart points out, a civil liability strategy merely taxing corporations (especially when the tax is simply passed on to their consumers) looks insufficient if it doesn’t provide the social condemnation law secures through criminal opprobrium. Stewart might even be right that if we have to choose, the criminal strategy is normatively superior. Of course, in an ideal world, it would be better to have both, since a now potentially lost civil liability in theory should exist: victims may need and deserve the monetary compensation too. (more…)

Mini-Symposium: James Stewart’s The Turn to Corporate Criminal Liability for International Crimes–Transcending the Alien Tort Statute

by Jessica Dorsey

This week we will host a mini-symposium on James G. Stewart’s latest article, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. James has been an Assistant Professor at the Faculty of Law at Allard Hall, University of British Columbia, where he as been since 2009. Previously he was an Associate-in-Law at Columbia Law School in New York. He has also been an Appeals Counsel with the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia and has also worked for the Legal Division of the International Committee of the Red Cross and the Office of the Prosecutor of the International Criminal Tribunal for Rwanda. James primarily works on the relationship between atrocity, commerce, and international criminal justice and has published extensively on these subjects.

Between today and Wednesday, Samuel Moyn (Harvard University), Steven Ratner (University of Michigan) and Beth Stephens (Rutgers) will comment on the article article and the author will respond.

It is our pleasure to welcome these scholars to Opinio Juris this week and we look forward to thoughtful comments and questions from our readership as well.

What Makes (International) Law Law? Liam Murphy

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here; his second, here and his third here.]

Today at NYU law we are having a panel discussion, and celebration, of my colleague Liam Murphy’s recent book, What Makes Law Law? (I’ll be racing down from Fordham University, where I’m talking about my own book, Leo Strauss Man of Peace). Liam’s work is important for international legal scholars, because-despite many good answers-the field has been haunted by crude positivist doubts as to whether international law is really law at all, or, if it is, its character as legality really matters to real world outcomes (as opposed to its sometimes asserted nature as political rhetoric or moralizing). Usually, the doubts related to enforcement-can international law really make a state, or indeed anyone, do something that they don’t want, or need, to do for other reasons?

It is revealing, and perhaps provocative statement in relation to those crude positivist views, that the chapter of Liam’s book that bears the title of the book is in fact a discussion of “law beyond the state”. Liam begins from the much neglected short chapter on international law in Hart’s The Concept of Law, where Hart actually uses international law as an example for the proposition that centralized enforcement and interpretation are not essential elements of a legal system. What is essential is a certain level of systemic integration and coherence, and here Liam faces head on the so-called “fragmentation” of international law. He writes: “At the normative level, the question is whether there remains a coherent overall normative structure to international law that can accommodate “the diversification and expansion” of international law and provide legal grounds to resolve conflicts.” At the risk of some oversimplification, and skipping the rich texture of the analysis, in short, Liam’s answer is: maybe. He points, for instance, to the systemic integration function of the rules in the Vienna Convention on the Law of Treaties. I would add that both the activity of the ILC as well, at a more basic level, the articulation of the sources of international law in Article 38 of ICJ Statute, perform such a function. Liam cites some of my work with Ruti Teitel on these issues (“Beyond Compliance”). In another piece, “Cross-Judging“, Ruti and I try to show how different tribunals in different fields of international law increasingly speak to each other, directly or indirectly, disagreeing sometimes, but presupposing common ground about what is an international legal argument or what counts as international legal discourse. Indeed, even if one goes back to Thucydides, it is fairly clear there to the relevant actors, ambassadors, generals etc. where an international legal argument is being made vs a general moral argument or a power-political claim, or appeal to interests.

As for enforcement, Liam rightly notes that the issue is not the actual level of enforcement, but whether the norms of international law are the kind of norms that one thinks can justifycoercion, or are appropriate for coercive sanctions. This is Kant’s point in distinguishing the realm of “right” from that of “virtue”. This is an important distinction, and it is crucial to be clear on it, as the skeptical scholarship of theorists like Posner and Goldsmith tends to obscure it. Since we can never know whether an individual, much less a collective such as a state, is acting purely from considerations of legality alone (again Kant), it is absurd to test whether international law is law, by asking for proof that international legality has caused a state to behave in a manner that it would not have behaved in, from other considerations or motives. This is the kind of test that international law skeptics like, because international legality is bound to fail it. But that’s the case for all legal norms.

Not just the chapter on law beyond the state but the book as a whole is a commendable read for international jurists.

The Breakthrough in WTO Talks and the Trade Facilitation Agreement (TFA)-Far from Meaningless

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here and his second, here.]

At International Economic Law and Policy Blog, where I’m a regular, I’ve been blogging for a while about the impasse in WTO Doha round negotiations and how to break through it. See here and here India has learned from the way developed countries operated in the previous Uruguay Round of negotiations, linking different issue areas or agreements, so for example rich nations could get developing countries to agree to TRIPs (intellectual property rules), on the basis that they had to do it to get something on agriculture, etc.  So, in this round, the Indians have insisted that implementing trade facilitation (mostly a developed country demand) depends on protection against WTO challenge for food security programs like India’s food subsidies for its poor.

With a bilateral deal between India and the US last week on food security, there is now the opportunity to move forward to complete the package negotiated in December 2013 at the Bali WTO Ministerial, and then, beyond that, to strike further deals that make the WTO as a negotiating forum relevant to the issues of today and tomorrow.  Reflecting the diversity of the WTO’s membership, some of these accords will be plurilateral, not binding all Members, but rather in the manner of “coalitions of the willing”, but still  (at least eventually) under the WTO umbrella, using its well-developed dispute settlement system and institutional framework.  Thus, another bilateral accord in recent weeks, between the US and China, will allow the Members involved to push forward with a new version of the plurilateral Information Technology Agreement (ITA).  At the same time, negotiations on liberalization of green goods have been happening in Geneva, another plurilateral initiative, where US leadership has been crucial (Canada’s WTO Ambassador, Jonathan Fried, has also given these talks a big push).

So, contrary to what the pessimists have been saying, the WTO is far from dead these days.  But some are claiming that the recent breakthrough is in fact trivial and disguises the virtual irrelevance of the current WTO agenda.  Financial Times journalist Alan Beattie, writing yesterday on one of the FT’s blogs, claims that reaching agreement with India on food security in order to push forward on the Trade Facilitation Agreement is hardly a victory, at all but perhaps a defeat in disguise.  Part of  Beattie’s argument is that the TFA is an unimportant accord, which has been blown up in significance because other elements of the Doha round agenda proved largely impossible to move forward on (such as genuine reform of rules on agriculture).   So what is the real story about trade facilitation?  Beattie is more wrong than right, and here’s why.

First of all, a little explanation of the jargon.  Trade facilitation is about improving customs administration, and the necessary infrastructure to move goods across borders.  Sounds boring, but the losses to otherwise efficient trade from these kinds of bottlenecks at the border, whether do to as corruption and incompetence, or just inadequate resources or out-of-date technology, are real.  One may question whether, however, the WTO, or indeed any set of legal rules, is up to tackling this kind of issue: it seems more a matter of institution-building, support for new technology and infrastructure, and rule of law/governance activities such as training of officials and redesign of domestic agencies.  In other words, if anything, the World Bank’s and regional development banks’ sort of thing, not the WTO’s.  Thus, I myself have in the past expressed skepticism about how much the WTO can do in this area.  (An excellent guide to the TFA by Ole Miss law professor Antonia Eliason can be found here).

Yet, as Ruti Teitel and I have argued in our essay “Beyond Compliance,” (more…)

Alexandre Kojève, a Neglected Figure in the History of International Law

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris. His first post can be found here.]

After a long period of relative neglect of such studies, there’s a boom in scholarship in the history of international law, as Alexandra Kemmerer noted at Voelkerrechtsblog early this fall. Kemmerer suggests, rightly, that disciplinary boundaries limit the full potential of historical studies to illuminate the genesis and sources of the international legal world in which we live. A true example of this is Alexandre Kojève, the French-Russian philosopher whose left-wing Hegelianism inspired a crucial generation of postwar Paris intellectuals, including figures such as Queneau, Lacan and Merleau-Ponty.  Kojève wrote (though rarely published in his lifetime) works on religious thought (including inquiries into Eastern religions), on the meaning of abstraction in art (he was Kandinsky’s nephew), on determinism in modern physics, on Hegel’s Logic, and a three volume history of ancient philosophy.  Kojève’s famed debate with Leo Strauss about the world state, On Tyranny, is the subject of a chapter in my recent book Leo Strauss Man of PeaceSo obviously Kojève defied, and his oeuvre defies, all normal disciplinary or specialization boundaries.

Almost hidden in all of this, however is an important volume of legal philosophy, Outline of a Phenomenology of Right. It was written when Kojève was in Marseilles during World War II, working in the French resistance, but only published long after his death, at the initiative of the great French public intellectual and cold war liberal Raymond Aron  (With Bryan-Paul Frost, I’ve produced a translation, and interpretive commentary). The Outline deserves the attention of scholars of international law in part because of its distinctive argument that globalization of law’s destiny-arguing less from the philosophy of history, though that’s always in the background, but principally from a view of the intrinsic nature of legal order, and the human ideal it seeks to realize.  Kojève’s argument is that a universal legal order-with however important components of what we would call “subsidiarity” or federalism-will emerge through mutual recognition between judges and regulators and the (partial) harmonization of laws that is entwined with recognition.  He imagined a form of globalization that would entail important elements of social justice, a conception of equal citizenship as including social and economic rights.  It is interesting to compare Kojève’s idea of recognition and global justice with that developed by Emmanuelle Jouannet in her recent book, What is a Fair International Society?, which has just been reviewed by Ruti Teitel in EJIL.

But, believe it or not, there’s lots more. This very same Kojève also happens to have been one of the main legal architects of the GATT; as Irwin, Mavroidis and Sykes note in their study of the GATT’s origins, he was head of the legal drafting sub-committee.  At the time Kojève was a French official, who would also work with Robert Marjolin among others on the design of the European Community (now Union).  Kojève tried to influence the development of the GATT in a direction contrary to the mercantilist or proto-neoliberal tendencies of the Anglo-American negotiators.  He designed proposals for a global commodities facility, and was at the forefront of efforts to provide a special regime for developing countries, which Kojève conceived as a kind of reversal of colonialism, with new rules that would switch around the terms of trade between developing countries and the former imperial powers in the developing countries’ favor. He was apparently known as the “serpent” by the American GATT team, one former ambassador told me, because his dialectical brilliance could run rings around those who challenged his position in Geneva discussions. Looking at Kojève’s role is useful in helping us understand that there were highly informed alternative views of the international trading system at the Geneva table during the formative years; this contrasts with the impoverishment that came with the adoption of a basically neoliberal outlook by the increasingly closed “epistemic community” that produced the WTO, and the legitimacy crisis of global economic governance that followed not long after the WTO’s founding. Remarkably, no in-depth study has been done of Kojève’s place in postwar international economic lawmaking and diplomacy; a few years back I spent some weeks in archives in Paris, preparing the initial groundwork for such a study.  But it would require quite a few interviews as well much more archival work, including at the GATT itself, to do the job properly. I hope there’s someone out there reading this who will beat me to it…

Guest Post: Tearing Down Sovereign Immunity’s Fence–The Italian Constitutional Court, the International Court of Justice, and the German War Crimes

by Andrea Pin

[Andrea Pin is senior lecturer at the University of Padua, where he teaches constitutional law, comparative public law, and Islamic law. He is also a fall 2014 Kellogg visiting fellow at Notre Dame.]

A few weeks ago, the Italian Constitutional Court’s decision no. 238 of 2014 struck blows to the theory and practice of sovereign immunity, the International Court of Justice (ICJ), German-Italian relationships, and even the Italian Government. On October 3, 2012, the ICJ decided that the customary sovereign immunity from jurisdiction protects Germany from suits brought before Italian domestic courts seeking compensation for Nazi crimes perpetrated in Italy during World War II.

Later on, new suits were filed against Germany in Italian domestic courts. This time, Italian judges requested a preliminary ruling from the Italian Constitutional Court to ascertain if the sovereign immunity protection, as crafted by the ICJ, was against the Italian Constitution. If the Court found that such immunity violated the Constitution, the judges would process the suits.

The Constitutional text proclaims that “The Italian legal system conforms to the generally recognised rules of international law” (Art. no. 10). International customary law falls in this category and therefore prevails over incompatible domestic legal provisions. But there has always been a caveat: the generally recognized rules of international law cannot be enforced in Italy if they conflict with the supreme principles of the Constitution. This is the doctrine of counter-limits, which the Constitutional Court shaped with special regards to the European Union integration: according to this doctrine, core constitutional values would set exceptional boundaries to the domestic enforcement of EU laws, which can ordinarily subordinate constitutional provisions.

The hypothetical non-enforcement of international law for violating a supreme constitutional value had never become reality—until now. The 2014 decision of the Constitutional Court found that Art. no. 24 of the Constitution (“All persons are entitled to take judicial action to protect their individual rights and legitimate interests”) encapsulates a fundamental principle of the Constitution. Therefore, the Court blocked the application of sovereign immunity from jurisdiction, and allowed the referring Italian judges to proceed with the relevant trials.

This unprecedented decision surely is in conflict with the ICJ Statute. In fact, the Italian Court consequently struck down the pieces of Italian legislation that commanded the enforcement of the ICJ’s judgments in cases of gross human rights violations as well. But it will also create some turbulence in the relationships between Italy and Germany.

The Constitutional Court’s decision, finally, is in conflict with the Italian Government’s attitude. After the ICJ’s judgment, the Government signed and had the Parliament execute the New York Convention on Jurisdictional Immunities of States and Their Property (2004). This Convention confirmed the ICJ’s approach to sovereign immunity: practically speaking, after losing at the ICJ, the Italian State happily legitimized Germany’s jurisdictional immunity. The Constitutional Court also needed to quash these pieces of Italian legislation. (more…)

The Return of the Neocons (and their Scorn for International Law): A Sword without a Strategy

by Robert Howse

[Rob Howse is the Lloyd C. Nelson Professor of International Law at NYU and is guest blogging this week here at Opinio Juris.]

According to Jacob Heilbrunn, the editor of The National Interest, the neocons are about to make a spectacular comeback in American foreign policy.  Writing about the midterm elections in the Financial Times last Friday, Heilbrunn observed: “the Republican party is resurrecting the unilateral foreign policy doctrines that first took hold under President George W Bush and his vice-president Dick Cheney.” So let’s take a hard look at the weapons the neocons have in their arsenal these days.

The first, as Heilbrunn notes, is Barack Obama, or more precisely discontent with his apparently reactive and hesitating approach to foreign and security policy, exemplified by situations such as Ukraine, Syria and the rise of ISIS.  If you read the fine print, to the extent there is any, the neocons like Cheney and Bill Kristol don’t have any master plan or worked out strategy of their own for dealing with these problems.  They appeal to the heartwarming (for some Americans) fantasy that, if the United States simply drops enough bombs and puts enough boots on the ground, victory over the forces of evil will prevail.  In this fantasy world, every apparent failure of intervention–Afghanistan, Iraq–can be explained by not enough American force being applied.  Consider Bill Kristol’s approach to ISIS: “What’s the harm in bombing them at least for a few weeks and seeing what happens?” This is the key logic:force has got to be better than no force, a sort of dogmatic inversion of pacifism. Of course, Kristol’s remark also speaks volumes to the neocons’ stance toward international law.

Then there is Senator-elect Tom Cotton.  As Heilbrunn notes,”Perhaps no one has been more impassioned in their support of the foreign policy of George W Bush than Tom Cotton.” Cotton, 37 years old, is the neocon wet dream.  After Harvard College (where he wrote for the Crimson, citing intellectual idols Allan Bloom and Leo Strauss) and Harvard Law School, Cotton signed up for the military insisting that he be sent into combat in Iraq.  While, as the legend goes, the army urged him toward a JAG-type position, Cotton would have none of it:  he had little interest in the laws of war, he wanted to fight one.  Cotton is perhaps the most credible of any of the neocons–he, at least, chose to risk his life in the war that he praised as “just and noble”.  He has also (at least somewhat) distanced himself from the main neocon strategy of withering attacks on Barack Obama, calling on Republicans to support the President’s plan for use of force in Syria and rather nobly lecturing partisan Republican conservatives: “we have one commander in chief at a time, and the United States is weakened if our presidency is weakened. No matter the president’s party or his past failures, all Americans should want, and help, him to succeed when it comes to our national security.”   While he shares the outlook of the ideological and partisan neocons, offering his conviction that America can and should seek “victory” in Afghanistan and Iraq, my hunch is that, given that he has had the responsibility as a soldier for the lives of men and women in combat, Cotton may actually prove a constructive and moderating force behind the scenes, if he does not consume too much energy in battles with the isolationist Rand Paul wing of the Republican Party.

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