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HILJ Symposium Vol. 54 No. 1

HILJ Symposium: Moria Paz responds to Efrat Arbel

by Moria Paz

[Moria Paz is a Fellow in International Law at Stanford Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study.

In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority. (more…)

HILJ Symposium: Consent to the Use of Force, Jus Cogens, and Manifest Violations of Domestic Law

by Duncan Hollis

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

In my previous response to Ashley Deeks’ article, “Consent to the Use of Force and the Supremacy of International Law,” I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent.

Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):

1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.

This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context. (more…)

HILJ Symposium: Getting to the Right Answers about Rights

by Tom Ginsburg

Tom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at the University of Chicago. Zachary Elkins is Associate Professor in the Department of Government at the University of Texas at Austin.

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

In recent years there has been an active debate in the social sciences about the distinct “cultures” of qualitative and quantitative inquiry. Gary Goertz and James Mahoney, A Tale of Two Cultures: Qualitative and Quantitative Inquiry in the Social Sciences (2012). We ourselves have been skeptical of the extent of this purported divide, as our prior collective and individual work has sought to integrate the strengths of the two approaches. Professor Christopher Roberts’ thoughtful comments on our article demonstrate, in our view, the basic complementarity of the methodologies.

Our article demonstrates a set of statistical relationships that are consistent with the interpretation that we give them: that constitutional and international rights are reciprocally produced, and that an important channel of impact for international human rights has been their adoption by national constitution-makers. Roberts draws on the historical literature to both supplement and challenge elements of this story, and to make the important point that it is, as always, a bit more complicated. (more…)

HILJ Symposium: Natalie Lockwood Responds to William Burke-White

by Natalie Lockwood

Natalie Lockwood holds a J.D. from Harvard Law School, 2011; and an A.B. from Princeton University, 2006.

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

First of all, let me begin by thanking Professor Burke-White for his careful reading and thoughtful response. I’m honored that someone whose own work I admire so much has taken the time and effort to engage with my article. I am also grateful to Opinio Juris and the Harvard International Law Journal for organizing this symposium.

My article, “International Vote Buying,” examines a feature of international relations that has not previously received much attention in legal scholarship—namely, the practice whereby states pay one another (with money or other concessions) to influence voting outcomes in international institutions such as the UN. For example:

• In 2003, the United States allegedly pledged millions of dollars to Angola in connection with a UN Security Council vote that would have paved the way for the invasion of Iraq.
• In 2008, Iran allegedly paid $200,000 to the Solomon Islands in exchange for future votes against Israel in the UN General Assembly.
• In December 2009, Russia allegedly offered the island state of Nauru $50 million in exchange for its extending diplomatic recognition to Abkhazia and South Ossetia, the two separatist provinces in Georgia. (more…)

HILJ Symposium: Constraining Language Through Culture

by Efrat Arbel

[Efrat Arbel holds an SJD form Harvard Law School and is a postdoctoral fellow at the University of British Columbia Faculty of Law.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Moria Paz’s article, “The Failed Promise of Language Rights: A Critique of the International Language Rights Regime,” is an important contribution to the literature on language rights. Paz advances a timely and insightful critique of judicial and scholarly treatments of language claims. Through a careful analysis of international and regional rights instruments, cases, and scholarly literature, Paz identifies a gap between the promise of language rights protection as articulated in these texts and the meaning these rights acquire in practice. At the heart of her analysis is a critique of the existing legal orthodoxy on language rights, and more specifically, its reliance on the vocabulary of human rights. Paz argues that approaching language claims through the rubric of human rights risks undermining the goals that motivate these claims, namely, effecting the distributional changes necessary to ensure linguistic diversity and protect minority language use. Arguing that the language of human rights is ultimately ill suited to achieve a robust protection of linguistic diversity, she advocates instead for situation specific analysis cognizant of political and material realities and demands. Such an approach, Paz argues, can better advance the structural changes and distributional demands that underpin language claims.

Through a detailed analysis of 133 cases from the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (UNHRC), and the Inter-American Court of Human Rights (IACHR), Paz finds an unexpected alignment between these disparate bodies. Her analysis reveals an international status quo that fails to live up to the promise of protecting language rights as human rights. As Paz convincingly shows, the ECtHR, UNHRC, and IACHR take a narrowly utilitarian approach to language. The remedies they issue offer only pragmatic management of language claims, rather than meaningful substantive accommodation. All too often, these decisions accommodate minority language to facilitate communication with the majority language group, and offer a thin measure of protection that lasts only until the minority language speaker transitions into the linguistic mainstream. No less significantly, the decisions often oblige minority language speakers to bear the lion’s share of the monetary costs that come with linguistic redistribution. As Paz’s analysis makes clear, this approach does not view minority languages as assets to be celebrated and accommodated, but rather, constructs them as obstacles that minority language speakers must overcome to assimilate to the linguistic majority. To this extent, she argues, this approach fails to extend robust accommodation of linguistic diversity. (more…)

HILJ Symposium: International Versus Domestic Law: Supremacy, Surrender, or Co-existence?

by Duncan Hollis

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Ashley Deeks’ Article, “Consent to the Use of Force and International Law Supremacy,” is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law).

Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints. (more…)

HILJ Symposium: A Response to “International Vote Buying”

by William Burke-White

[William W. Burke-White is Deputy Dean and Professor of Law at University of Pennsylvania Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Natalie Lockwood’s article, “International Vote Buying,” recently published in the Harvard International Law Journal, makes an important contribution to a set of understudied questions around the legality and appropriateness of international vote-buying. Lockwood quickly admits that international law itself says little about the legality of such vote buying and, therefore, examines the question through an analogy with the legal rules governing vote buying in a variety of domestic contexts. She recognizes, however, that the analogy, while informative, is imperfect. There are significant differences between nature of domestic polities in which such vote buying is generally subject to legal prohibition and the nature of the international community. Yet, the analogy helps inform our thinking about whether vote buying should be prohibited at the international law.

In this brief response, I seek to do two things. First, I want to question both the effectiveness and appropriateness of a legal prohibition on vote-buying. Second, I want to suggest that more significant contribution of Lockwood’s article goes far beyond vote-buying and helps refocus debate on the changing nature of power and influence in the international system. (more…)

HILJ Symposium: Convergence, Reaction, and Translation: Human Rights in History

by Christopher N.J. Roberts

[Christopher N.J. Roberts is Associate Professor of Law at the University of Minnesota Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Convergence

The most important studies stimulate a host of unlikely conversations. In this regard, “Getting to Rights,” a path-breaking article that examines the effect of international rights texts on domestic constitutions and practices does not fall short. Its contribution to the literature on rights convergence is already part of an encounter that unfortunately is all too infrequent in academia: an engaging dialogue between quantitative and qualitative scholars. The import of this study, however, extends far beyond the literature on convergence. It has significant implications for the study of rights in areas ranging from anthropology to sociology and history.

Scholarly contributions aside, the authors also happen to be unwitting interlocutors in a conversation that one famous science-fiction writer initiated over seventy years ago. In the earliest days of WWII—long before the Universal Declaration of Human Rights (UDHR) or the United Nations (UN) were the faintest of ideas—H.G. Wells wrote a letter to editor of the Times offering a potential solution for the rapidly expanding crisis: a “Declaration of Rights.” Relying in part upon his ability to conjure the unimagined, he placed before his readers a high prophecy: such a declaration eventually, “… would furnish a criterion for our subsequent treaties and behaviour.” Although Elkins, Ginsburg, and Simmons never mention Wells in their article (nor is it likely that they considered him at all during the course of their work), they are the first scholars to test empirically the substance of his prediction and identify a mechanism through which it operates.

The authors’ data show that on the heels of a post-war surge in the volume of rights (216), a clear correlation emerged between the rights in the UDHR and those rights in domestic constitutions (221). They argue that the UDHR influenced the content of domestic constitutions in the post-WWII moment through a “powerful ‘template’ influence” (221). Second, they show that post-1966 constitutions from states that have ratified the International Covenant on Civil and Political Rights (ICCPR) are more likely to contain ICCPR rights than those state constitutions from states that have not ratified the ICCPR (228). And finally they argue that treaty ratification is responsible for both a direct influence on domestic respect for human rights as well as an indirect effect that operates through “constitutional incorporation” (204).

In this response, I reexamine a few slivers of the historical record—though now with the authors’ findings in hand. In certain cases the existing qualitative data confirms the authors’ findings and in other cases it calls for further investigation. I raise three points: First, similarities in rights texts may result not from a “template” effect, but from the fact that post-WWII rights texts were “reactions” to a common set of challenges and threats. Second, because nominally similar rights are often subject to different interpretations at the local level, in certain settings it is possible that questions of “translation” might provide greater analytic traction than assumptions of “convergence.” Finally, this response concludes with a brief example of how “human rights in history” is itself a very hazy phenomenon that presents unique challenges for quantitative scholarship.

Was the UDHR a “template” or just a similar “reaction” to shared threats?

In his public missive, H.G. Wells actually drew much more from history than his imagination. He noted how in times of tumult from the Magna Carta onwards rights formation had been a reactive phenomenon. The French Declaration of Rights and the US’s Declaration of Independence and its Constitution are of course prime examples of rights texts that emerged in response to external challenges. Indeed, rights texts—be they constitutions, treaties, charters, or declarations—represent a people’s response to shared problems and common threats. They are collective “solutions” written into law.

Using the history of rights formation as a guide, one would anticipate a surge in rights in the aftermath of a depression and in the chaos of two world wars. The author’s findings are entirely consistent with this expectation. But this expectation should not end at domestic shore. If rights formation is a reactive process, there is no reason to assume that the surge should be limited to domestic constitutions. Indeed, in the midst of common international threats, one should expect to see a surge in international rights texts that respond to the threats in kind. This is a hunch to be sure—but it is a hunch that the history seems to support.

In 1939, as the nations of the world acceded to War, Wells advised his readers that the moment was “peculiarly suitable for such a restatement” of the rights of man. He in fact concluded his letter in the Times with his own proposal for a bill of international human rights. Interestingly, his 1939 decalogue stood in the company of many others. During these years, there was an outpouring of international human rights proposals from a number of prominent individuals and groups. Hersch Lauterpacht of Cambridge, Gustavo Gutierrez of Cuba, Alejandro Alvarez of Chile, Rev. Wilfred Parsons of the Catholic Association for International Peace, and Robert Hutchins, President and then Chancellor of the University of Chicago, each gained considerable attention for their own international human rights declarations. Groups such as the Institut de Droit International, the American Jewish Congress, the American Association for the United Nations, the World Government Association, the editorial board of Free World, and the American Law Institute also drafted human rights declarations—all before the 1948 UDHR came into being. A few of them even predated Wells’ declaration. By 1946, the UN Secretariat had at least 12 different drafts of such international bills of human rights in its possession. The UDHR—which, for instance drew upon the ALI’s text—shared much in common with some of these early human rights documents. Others—for instance, Chancellor Hutchins’ “Declaration of Duties and Rights” which invoked “earth, water, air, [and] energy” as the four fundamental “elements of life”—were rather distinct.

While some variation amongst these human rights documents is inevitable, one actually finds significant similarities as well. This is not surprising. The drafters of the world’s first international human rights texts (including the UDHR) worked under the shadow of the same forces that had spread decades of want and fear across the globe. To the extent that rights texts are reactions to shared problems, one should expect to see similar solutions written into law. This applies every bit as much to domestic constitutions as well. Nations, of course, were thrown headlong into the very same turmoil.

In the present study, it is quite possible that the correlation between the rights within the UDHR and those within subsequent domestic constitutions flows not primarily from the UDHR as a “template,” but from prior, common sources. Indeed, all of these declarations, treaties and constitutions were part of the same rights explosion, which itself, surged into being in very much the same way others had over the centuries: as a reaction to common threats and challenges. This mechanism can perhaps explain the surge in similar rights that preceded the UDHR that the authors note on page 218.
It would be very interesting to see how the other early human rights texts correlate with domestic constitutions. Depending on how they score relative to the UDHR, they might actually help to rule out the competing explanation outlined above. On the other hand, since it cannot be argued, for instance, that Chancellor Hutchins’ declaration served as a template for subsequent domestic constitutions, if the authors ran their analysis and found that it correlated highly with domestic constitutions, such a finding would speak to the likelihood that there are indeed other forces at work beyond the UDHR acting as a template.

Do nominally similar rights possess identical local-level translations?

The clearest qualitative support for the authors’ template proposition would seem reside within the many domestic constitutions that explicitly name the UDHR as a source of rights (including Afghanistan, Cambodia, Argentina, Andorra, Romania, Portugal, Benin, Cameroon, Burundi, Somalia, Tanzania, Burkina Faso, Congo, Djibouti, Niger, Angola, Ethiopia, and Mozambique). It is interesting, however, to note that African states predominate this list. Moreover, a large portion of the African states that explicitly mention the UDHR in their constitutions also invoke the African Charter—a regional human rights text, that itself explicitly “draw[s] inspiration” from the UDHR. These facts instantly raise a series of questions about the precise nature of the causal mechanism(s) underlying the authors’ arguments about human rights convergence. What role, for example do cultural, ethnic, regional, linguistic, or ideological factors play? In subsequent studies it would be interesting to see exactly how specific regional rights texts figure into the causal stories surrounding both the UDHR and the ICCPR.

A broader issue looms. If it is true that convergence (at least some of the time) is more of a multi-phase process in which rights filter through a series of international and regional rights texts, institutional apparatuses, disparate cultural motifs, and unique historical struggles on their way to local level incorporation and implementation, what appears as an identical right in name could manifest within an entirely distinct interpretive guise at the local level. During the drafting of the Covenant in the early 1950s, for example, the United States, the USSR and, smaller, non-western states each bestowed entirely distinct interpretations upon socioeconomic rights. Decades later, even the more widely accepted category of civil and political rights within the ICCPR is not free from differing interpretations. The incredible number of Reservations, Understandings, and Declarations that states use to clarify their own positions provides a window into the disparate meanings and translations that states bestow upon nominally identical rights.

Depending upon the strength of the intervening variables and the nature of the process that may recondition the meanings of rights along their journey towards domestic law, relying upon a strict analytic notion of “convergence” may obfuscate the many practical and conceptual divergences that exist beneath nominal similarities in international and local level rights texts. In certain cases “convergence” as a motivating framework may cede explanatory power to questions of “translation” (see Goodale & Merry). Notwithstanding these conceptual issues, the authors’ use of Freedom House data enables them to focus on the actual practices on the ground and to bypass such issues of translation.

Human Rights in History

In Part IV of the paper, the authors argue that a state’s ratification of the ICCPR has an independent effect upon whether those rights within the treaty will eventually become part of that state’s domestic constitution (221). A key part of their analysis relies on an analysis of the similarity of pre-1966 and post-1966 constitutions and the ICCPR. The key year of 1966 represents the date the ICCPR was adopted and opened for signature, ratification and accession by the General Assembly. The difficulty with using this year for their pre/post analysis is that by 1966 virtually all of the rights within the text already had been drafted and publicly available for over a decade. A comparison of the 1954 draft text and the final 1966 text shows the two versions are remarkably similar, with only a few significant rights additions or deletions (the 1954 draft version is available at page 65 of UN Doc E/CN.4/705). It is likely that many states that were going to ratify the ICCPR or adopt similar provisions in their own constitutions had knowledge of what was in the text long before 1966. As is so often the case, the fuzziness of history challenges the exactitudes of quantitative methods. Nevertheless, the choice to use 1966 as the relevant year might actually bias downwards the authors’ findings and suggest an even stronger relationship than exhibited.

“Getting to Rights” will no doubt continue to engage human rights scholars from diverse methodological orientations in lively conversations and debate well into the future. This valuable contribution enables the production of new knowledge and simultaneously demands a rethinking of our existing understandings. In scholarship and in practice, getting to rights is inevitably an ongoing process. As world events transpire and unanticipated threats emerge, new treaties and constitutions will come into being and novel configurations of rights will emerge. Thanks to the unparalleled source of data within the CCP, this important line of inquiry will be able to keep pace.

HILJ Symposium: Volume 54(1)

by Harvard International Law Journal

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts in this series can be found in the related posts below.

This symposium features a series of four responses to articles published in the Harvard International Law Journal’s volume 54(1). Over the next few days we will be presenting the responses, as well as commentary from the authors of the original journal pieces.

Christopher N.J. Roberts, of the University of Minnesota Law School, will be responding to “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice” by Tom Ginsburg, Zachary Elkins, and Beth Simmons.

William Burke-White, from the University of Pennsylvania Law School, will be responding to Natalie Lockwood’s article, “International Vote Buying.”

Duncan Hollis, of Temple University School of Law and Opinio Juris, will be responding to “Consent to the Use of Force and International Law Supremacy” by Ashley Deeks.

Finally, Efrat Arbel of Harvard Law School will be responding to “The Failed Promise of Language Rights” by Moria Paz.

The responses and author commentary will be added throughout the week, so make sure to check in often to see the latest posts.