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NYU JILP Symposium: Promoting democracy from within: The role of rising civil society in taking on authoritarian government in China

by Eva Pils

[Eva Pils is currently Associate Professor at the Chinese University of Hong Kong, Faculty of Law and a Non-resident Senior Research Fellow at NYU Law School’s U.S.-Asia Law Institute. Her scholarship focuses on human rights in China, with publications addressing Chinese human rights lawyers, property law and land rights in China, the status of migrant workers, the Chinese petitioning system, and conceptions of justice in China.]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

Kroncke criticises authoritarian and post-authoritarian countries’ governments such as the Chinese government, western governments such as that of the U.S., and transnational entities such as the World Bank for selectively promoting the protection of private property rights, while repressing or being indifferent toward the promotion of collectively exercised labour rights, in particular associative rights such as the right to strike. The paper’s main point is that there is an inconsistency in this approach, which Kroncke describes as a ‘promotion paradox.’ He argues that suppression of associative labour rights, which is detrimental to democracy, also occurs in the United States, and that this ‘begs the question of whether we can sustain the idea that political and economic liberty are interconnected.’

The overall argument is persuasive and important. It reminds us that democratic countries can deteriorate and become more authoritarian if they suppress basic rights, and it has implications for certain rule of law promotion initiatives in authoritarian systems. But I have some criticisms. First, I don’t think that the Chinese government is uniquely suppressive of labour rights activism – in fact, there is some reason to believe that labour activism fares better than evictee activism for property rights. Second, Kroncke seems to limit himself largely to observing that there is an inconsistency in the promotion of certain rights abroad without saying clearly that or by whom property, labour rights or democracy should be promoted. The paper could take a clearer position on this point. Third, Kroncke could strengthen his argument by acknowledging that Chinese civil society has long recognised the connection between political and economic liberty.

The basic strands of the prevalent arguments Kroncke identifies and criticises – pro-private-property, anti-labour rights – are associated with utilitarian, consequentialist, economic efficiency considerations. Essentially, the argument is that collective labour rights are bad for economic growth, for instance because they drive up labour costs, whereas private property rights are good for growth, as they help protect wealth and promote its accumulation. Kroncke shows that those purporting to promote democratisation in currently non-democratic countries have used these types of argument to criticise the role of labour rights activism in emerging or developing economies, even as they have advocated stronger protections of private property rights. Authoritarian and post-authoritarian regimes, in turn – China in particular – have been able to accommodate the promotion of private property rights to some extent, because limited protection of property rights does not directly threaten the foundations of their undemocratic rule. Regimes of this kind protect private property in ‘experimental’ fashion.’ By doing so they can secure support from some social groups, which is one reason they maintain power. In China, for example, the property regime has allowed the State to take land from current owners or legitimate occupants , and give newly created use rights in that land to emerging elites. These new rights appear to be relatively well-protected, whereas the rights and legitimate interests of evictees are easily crushed.

Kroncke shows that both strands of the argument constituting the promotion paradox are flawed, in part because they rely on empirically unsupported assumptions about what helps economic growth, and in part because they ignore certain adverse (e.g. unfairly redistributive) consequences of legal reform in their name. They also overlook the importance of labour rights as an aspect of political liberty. Clearly, labour advocates are in a unique position to promote effective strategies for the exercise of associative rights and thereby engage in democracy promotion.

The author’s criticism of those who disseminate the tenets of the ‘promotion paradox’ is therefore well justified, and his identification of ways in which China’s establishment, including officials and scholars, have adapted and used these tenets persuasive. An example is the rhetorical promotion of ‘private property rights’ – propaganda for the 2007 Property Rights Law was steeped in the rhetoric of neo-classicist economic liberalism, including arguments such as that private property rights would ‘allow the poor to get rich.’. Kroncke is entirely right to be critical. He seems also right in observing ‘troubling parallels between the emphasis on employment law and employer self-regulation favored in authoritarian regimes and current trends in U.S. labor law’ – to a bias against labour rights stemming in part from a misinterpretation of American history.

A weakness in the argument is the apparent suggestion that repression of the Chinese labour movement is uniquely bad, compared to the Chinese government’s suppression of other rights advocacy. For example, the 2007 Property Rights Law touted such rights with great fanfare; but its provisions supposed to protect Chinese citizens from unjustified evictions (e.g., a ‘public interest’ requirement) utterly failed to achieve their intended effect. Declarations by groups of rural residents declaring fuller, more genuine land ownership rights at the end of 2007 were swiftly and brutally suppressed. An eviction lawyer called 2010 the ‘worst ever’ year for violent evictions (and there is no indication the situation has improved since). The emerging middle class may feel comparatively well-protected; but large scale evictions and expropriations affect them, too, and their co-optation does not guarantee that the authoritarian power-holders might not suddenly decide that their rights are dispensable, too, as illustrated by recent ‘anti-corruption drives’ (or Party-internal purges) affecting very senior Party-State leaders. From this perspective, authoritarian countries’ ‘experimental’ engagement with law simply reflects their internal inconsistency and the precariousness of anyone’s rights in a ‘dual state,’ no part of which can achieve even ‘formalistic’ or ‘selective’) rule of law, as Ernst Fraenkel argued some seventy years ago.

The scale of evictions and eviction protests remains very great, with land conflicts amongst the most important causes of social unrest While individual labour rights advocacy may co-opt advocates because it is tolerated and effective up to a point, evictees find it hard to obtain access to justice to protect their property and/or housing rights and access to justice, and are generally unable to get their land and homes back. And, while the official, corporatist labour union is constantly challenged by fledgling independent labour rights groups and the ACFTU can sometimes be moved to act on behalf of workers, evictee activism remains scattered. Evictees are not better off because there is no official counterpart to the ACFTU claiming to represent them and seeking to control them. Rather, the Party-State does not even pretend to recognise their right to organise –. Making this point is not to pit evictees as a social group against workers, however, for these social groups are overlapping.

What does this mean for Kroncke’s argument? First, it weakens the claim that authoritarian regimes can be genuinely supportive of private property rights. Propagandist claims that the State respects property rights cannot support the notion that anyone’s property rights can be well protected in a system without respect for fundamental rule of law principles.

Second, Kroncke’s argument could benefit from closer attention to the role of nascent domestic civil society advocacy for private property rights which, despite challenging conditions, stresses private property’s liberty dimensions. ‘The rain may enter, the wind may enter, but the King may not:’ such phrases are popular amongst evictees and their supporters.

Evictees understand that the rights whose protection they advocate are not compartmentalised, but, rather, inherently connected. They know that as long as they are not allowed to express themselves freely, they can have no meaningful legal argument with the State about the extent of their property rights. They are also aware of the direct impact of surveillance, State-centred violence and other forms of persecution on their advocacy efforts. As a result, rights advocates across the board have engaged in more explicit political activism in recent years, as the emergence of the ‘New Citizen Movement’ (新公民运动) from mid-2012 illustrates, with its characteristically specific but diverse demands (disclosure of official assets, equal education rights, etc.).

If transnational civil society has been slow to pay attention to evictee rights activism in China, this points to a discrepancy in concern for labour and evictee rights, which is illuminative and could help extend Kroncke’s argument. From a growth perspective, expropriations, evictions and redistribution of land in their wake is efficient, and it would be difficult to reconcile better protection of evictee rights with neo-liberal economic arguments dominating the global law and development discourse. Like the domestic Chinese discourse, neo-liberal economic discourse seems interested in economic arguments for private property, primarily where they suit a convenient ‘development’ narrative. It seems less interested in the liberty aspects of private property rights, as well as labour rights’ inherent connectedness with other civil and political rights. It is the victims of rights violations in factories and on eviction sites, in detention centres, on the web, in front of government offices and in the streets who best recognise that connectedness. They and their advocates are best situated and most likely to promote democracy in China.

NYU JILP Symposium: Industrial Life without Independent Unions: The US Looks at China, and China Looks Back

by Cynthia Estlund

[Cynthia Estlund is currently Catherine A. Rein Professor a NYU School of Law]

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

Jed Kroncke explores a fascinating contrast within US policy toward China and other developing countries: That policy couples vigorous promotion of legally-protected property rights and rule of law reforms with virtual acquiescence in the harsh suppression of independent trade unions and workers’ freedom of association. Kroncke’s thoughtful and provocative juxtaposition of the two arenas of rights and policy produces novel insights into both China and US policy, and reveals puzzles and paradoxes.

To wit: China’s rapid growth in the early years of “reform and opening” took place, as others have noted, without the legally enforceable property rights that most development scholars and policymakers claim are essential to economic development. More recently, China’s leaders have defied conventional wisdom on the role of property rights and “rule of law” in promoting liberalization by reforming property rights and legal institutions while strengthening one-party rule. There is the seeming paradox of China’s strengthening property rights and suppressing workers’ rights under the banner of “socialism.” And at the center of Kroncke’s account is the puzzle of US policy, which continues to stress property rights and “rule of law,” and fails to challenge China’s suppression of independent labor activism, although the latter has a better historical track record of promoting democratic development.

There is a straightforward pragmatic explanation for the last puzzle: Insofar as China sees property rights and “rule of law” reforms – or its version of them – as compatible with or even conducive to continued one-party rule, engagement on these issues is possible. By contrast, China vehemently denounces any outside effort to promote independent unionism as meddling in its internal political affairs. Clearly independent labor activism is seen as a threat to political stability and one-party rule.

But Kroncke contends that the US neglect of workers’ associational rights in China is not just a pragmatic accommodation to political realities there, but also a reflection of the decline of unions, and indeed the neglect of workers’ associational rights, here in the US. He points out that even some labor scholars who strongly support workers’ right to form unions and bargain collectively (like me) have turned toward more cooperative and less combative structures of workplace participation. It is no wonder that the urgency of supporting independent trade unionism in China is overlooked, says Kroncke, when independent trade unions in the US – battered by decades of employer resistance and unaided by an aging, ailing regulatory framework – have lost their central role in industrial relations practice and theory, and are fighting for survival. The Supreme Court has played a role, too, weakening collective labor rights and fortifying individuals’ constitutional “right to refrain” from associating with or contributing to majority-supported unions.

In the US, trade unions are feared and loathed by different actors for different reasons than in China. There is no one-party regime that fears toppling. But there are powerful conservative players that resent, and seek to curb, unions’ political role in a hyper-polarized two-party electoral system; they see unions as agents not of democratization but of Democratization. Some of their white working class constituents agree, and vigorously assert their “right to refrain,” or simply abstain, from supporting unions. And of course US employers fear unions for their threat to cherished managerial prerogatives and flexibility; armed with power over employees’ jobs and a legal “right to resist” unionization, they make union organizing risky, and its rewards elusive, for many workers who might otherwise choose union representation.

The decline of trade unions in the US (and to a lesser degree across the developed world) raises basic questions about the future of regulatory capitalism. In Western industrial societies in the 20th century, trade unions were at the center of the industrial protest that put labor reform at the top of the New Deal agenda. The resulting reforms made unions central regulatory actors in reducing the scope and intensity of industrial conflict, and in resolving the “labor question” that long roiled American society. But nowadays, with private sector union density below 7 percent and strikes at their lowest level in over a century, it is less obvious that robust trade unions are needed to secure “industrial peace.” Unions may still be needed to pursue industrial justice, equality, and democracy; but that has never been enough to secure the full measure of political support needed for major pro-union legislation. In the meantime, the overwhelming majority of US private sector workers lacks any institutionalized voice at work, and the idea of workplace democracy has faded from public discourse. That is what drives the exploration of alternative forms of representation — not instead but alongside of the elusive reforms that might enable more workers who want union representation to get it.

China is at a different phase of economic development. Its current spate of strikes might remind us – and perhaps even China’s leaders – of the period leading up to our New Deal, when independent unions came to the fore in a new industrial relations framework. But when China’s leaders observe the more recent decline of independent unionism and collective action in the West, and especially in the US, they must wonder whether they can muddle their way through the current era of labor conflict, avoid the political perils posed by an independent labor movement, and reach the more peaceable and mostly union-free state of affairs that may await on the other side. That, in any event, seems to be the plan, for there is no sign of any softening of China’s stance toward independent unions, even as strike activity continues to rise.

Can China ride out its current labor troubles and build a more advanced and productive economy, as they hope to do, without allowing workers to form independent unions to represent them in economic (and social and political) contestation? Just because it has not been done before does not mean that China cannot do it. Much as China has defied the conventional wisdom about the necessity of secure property rights for economic development, China may defy Western-inflected expectations about the role of independent trade unions in achieving industrial peace.

Clearly, however, China’s leaders cannot rely on repression alone to combat independent labor activism. For one thing, repression tends to backfire in the form of more violent and politicized labor conflict. For another, the regime’s legitimacy and longevity may depend on addressing workers’ grievances, boosting consumer spending, and distributing more of the fruits of economic growth to ordinary citizens. That is what independent unions and collective bargaining helped to achieve during the 20th century in the US and elsewhere, but that is not on the table in China. So the Party-state is improvising on other fronts — raising minimum wages and labor standards; facilitating workers’ access to arbitral and judicial enforcement of their legal rights; promoting reform, and a limited role for “direct elections,” within the Party-controlled official union; intervening in collective disputes and pressuring employers to make concessions to striking workers; and extending the “worker representative congress” system — with a history in China’s planned economy, and a superficial resemblance to German works councils — to private companies.

All of these reforms are simultaneously driven and constrained by the regime’s determination to avoid the rise of an independent labor movement. (So I argue in a book-in-progress.) For example, real direct elections in “grassroots” chapters of the official trade union might help make those official unions more responsive, and draw workers away from independent activism; yet elected grassroots union leaders might be hard to control, and might bring a measure of independent activism to the official union itself. And so the move to democratize union elections is cautious, spotty, and weak, and the official union continues to be seen as largely “useless” to workers. All in all, it remains to be seen whether China’s multifaceted strategy for quelling labor unrest can work without independent representation of workers in legal and regulatory channels, in collective bargaining, and in workplace participation schemes.

Here in the US, we might ask parallel questions about the patchwork of employment protections that proliferated as unions declined — minimum labor standards and anti-discrimination and anti-retaliation protections — and the internal compliance and “human resource” structures that have grown up in their wake. Can those legal and non-legal protections and processes, along with plaintiffs’ lawyers and worker centers (which are much freer to support workers in the US than in China), fill the vacuum left by union decline? China, and our own history of labor unrest, both remind us that the question would have a different cast if workers were hitting the streets en masse over their grievances. Unless that happens, we will be running, and China will be watching, a vast social and political experiment in industrial life after unions.

New York University Journal of International Law and Politics, Vol. 46:1 Online Symposium

by NYU Journal of International Law and Politics

This post is part of the NYU Journal of International Law and Politics Vol. 46, No. 1 symposium. Other posts in this series can be found in the related posts below.

The NYU Journal of International Law and Politics is proud to be partnering with Opinio Juris once again for an online symposium. This symposium is a discussion of Professor Jedidiah J. Kroncke’s article Property Rights, Labor Rights and Democratization: Lessons From China and Experimental Authoritarians, which was published in the NYU Journal of International Law and Politics, Volume 46, issue No. 1.

In this article, Professor Kroncke argues that a fundamental paradox exists in efforts to promote democratization abroad that emphasize property rights to the exclusion of labor rights and that this paradox emerges from the connection between property rights and foreign legal development alongside a renewed emphasis on independent unionization in democratization theory. The Article explores the paradox in action through the willingness of modern authoritarian regimes, particularly China, to experiment with rule of law reforms, and creatively so in the realm of property rights, while being uniformly repressive of associative labor rights.

Over the next two days, a number of legal scholars will offer their thoughts on the topic, including:

Tuesday, May 13, 2014:

  • Cynthia Estlund – New York University School of Law
  • Eva Pils – Chinese University of Hong Kong, Faculty of Law

Wednesday, May 14, 2014:

Below is an introduction to the symposium by Professor Jedidiah Kroncke:

I want to open by thanking the editors at NYU JILP for their efforts in organizing this symposium and Opinio Juris for hosting. I am also very thankful for the opportunity to have scholars whose work I regard highly subject the article to critical scrutiny.

As I look forward to the commentators’ engagement with the paper’s substantive claims, I thought I would give a simple preface to make explicit some of the methodological motivations that shape the piece.

Much of my work to date has focused on the historical evolution of comparative law in the US, specifically through its relationship to China and the field popularly known as law and development. I believe that the distinction between these two fields is inherently illusory and counterproductive, especially when such distinction artificially segregates the study of certain foreign legal systems from others and in doing so presumes a certain common sense about from where and to where legal knowledge flows globally. Further, I see it as a categorical error that the monadic study of foreign legal systems is de facto labeled “comparative law” when it is not analytically comparative or, worse, implicitly employs an uncritical view of US or “Western” law. (more…)

HILJ Online Symposium: Suzanne Katzenstein Responds to Karen J. Alter

by Suzanne Katzenstein

[Suzanne Katzenstein is a Visiting Assistant Professor at the Duke University 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.

Thank you to Opinio Juris and the Harvard Journal of International Law for hosting this exchange and to Karen Alter for her thoughtful comments. My article’s central question is why governments create global international courts or, put more precisely, why some government attempts to create such courts succeed and other attempts fail. I evaluate all attempts at international courts that I could identify that reached the multilateral treaty negotiation or treaty drafting stage. This amounted to four successful and seven failed attempts at establishing courts invested with general jurisdiction or relating to international criminal law, the law of the sea, and human rights. The dominant explanation for the creation of international courts focuses on the functional incentives of governments, such as the need to overcome collective action problems or to signal credibility. I argue that the functional explanation provides insufficient insight into the successes and failures of the proposals I study. I evaluate two additional explanations. The first focuses on the preferences of the most powerful states, the UK and the US. I propose a second that emphasizes the role of legal crises and international lawyers. During periods of legal crisis, governments are more willing to cooperate with one another in order to bring stability back to the legal and political order; and they are also more receptive to the proposals for international courts made by international lawyers. Neither the power nor the crisis argument fully explains the eleven attempts analyzed in the article. Not surprisingly, history is too complex. But taken together, the two explanations provide substantial insight into ten of the eleven cases, and into the creation of international courts across the 20th century.

Alter rightly notes that I define international courts and tribunals narrowly—as only those institutions that are open to any state to join. This means I exclude both regional and ad hoc criminal tribunals. I do so not only for the sake of feasibility but also because I assume that state concerns about protecting their sovereignty are distinct in those contexts. States, for instance, retain more control over the design and operation of regional than they do of fully international courts (for example in the area of judicial appointments), and most state officials are not subjected to the jurisdiction of the ad hoc criminal tribunals they help create. In addition, current scholarship, including Alter’s own work, persuasively shows that the creation of regional courts has been influenced both by region-specific dynamics as well as cross-regional emulation.

I make three other important definitional and scope choices. I study only those proposals that reach the multilateral treaty drafting or treaty negotiation stage. These attempts seemed to have a real chance at succeeding. I define “success” as courts with treaties that actually entered into force. Finally, I also exclude tribunals that deal solely with economic disputes, such as trade and investment disputes. Here, my assumption is that powerful states—those with the largest markets—enjoy unique bargaining leverage during negotiations. (more…)

HILJ Online Symposium: Hague Peace Conference Courts v. The Universe of International Courts

by Karen J. Alter

[Karen J. Alter is a Professor of Political Science and Law at Northwestern University. Alter’s most recent book is The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014).]

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.

Suzanne Katzenstein’s article is a very welcome systematic investigation of the Hague era and post-Cold War proposals to generate international courts (“ICs”). Katzenstein puts her finger on a serious problem in the literature on international courts. Scholars are biased towards success, since it is hard to build a career by focusing on what does not exist for most to see. Katzenstein is correct in pointing out the limitations of our scholarly biases. Indeed the only way to understand what leads to IC creation is to give equal weight to both successful and unsuccessful efforts.

Researching abandoned initiatives, however, is not so easy to do. One can find references to publicly voiced ideas and formed proposals that fail, but these references tend to be brief and anecdotal. Moreover, many ideas are voiced but then abandoned, leaving not even a paper trail. The dearth of deep secondary literatures regarding failed initiatives makes it is extremely hard to construct a universe of cases, let alone develop and test arguments that might explain why some proposals are abandoned.

During what I call the Hague Peace Talk era, however, proponents developed a grand vision for a network of international courts. Katzenstein thus has a period of time in which she can investigate abandoned and successful endeavors, side by side. She then traces what happened to these initiatives over time. Her analysis deftly summarizes this landscape of successful and failed global initiatives across the twentieth century. I especially appreciate this article’s many tables that really help us see patterns as well as what became of various proposals. (more…)

HILJ Online Symposium: The Next Step

by Michael Waterstone

[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. (more…)

HILJ Online Symposium: Greg Shill Responds to Christopher Whytock

by Greg Shill

[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. (more…)

HILJ Online Symposium: Is There Really Judgment Arbitrage?

by Christopher A. Whytock

[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. (more…)

HILJ Online Symposium: Monica Hakimi Responds to Tim Meyer

by Monica Hakimi

[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. (more…)

HILJ Online Symposium: Justifying Unfriendly Unilateralism

by Tim Meyer

[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. (more…)

HILJ Online Symposium: Anthea Roberts Responds to Martins Paparinskis

by Anthea Roberts

[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.” (more…)

HILJ Online Symposium: On the Love of Hybrids and Technicalities

by Martins Paparinskis

[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. (more…)