Archive of posts for category
Online Symposia

Emerging Voices: Extraordinary Exceptions at the ICC–What happened with Rule 134quater?

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

In November 2013, the Assembly of States Parties adopted Rule 134quater. Under the pressure of African States, the ASP agreed that the Trial Chamber should be able to excuse an accused from continuous presence at trial, when the accused “is mandated to fulfil extraordinary public duties at the highest national level”.

Rule 134quater

1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.

2. The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

While this amendment was welcomed by the international community – and most notably by the UK, the US and the AU – several commentators questioned its consistency with the Statute, and in particular with Articles 27.1 (“irrelevance of official capacity”) and 63.1 (“the accused shall be present during the trial”). An amendment to the Rules of Procedure and Evidence (RPE) may not extend the scope of Statute (Articles 51.4 and 51.5), but that is exactly what Rule 134quater seemed to do by deviating from the conditions that the Appeals Chamber (25 October 2013) had laid down for the Trial Chamber’s discretion to excuse an accused from continuous presence at trial. For this reason, Kevin Jon Heller predicted that the new Rule would “probably not” survive judicial review.

So what happened? Did Rule 134quater pass the scrutiny of the Court’s Judges?

Submission Prosecution

Almost immediately after the ASP, Ruto submitted an excusal request under the new Rule, which essentially said that the Trial Chamber should excuse him for as long as he would be Vice-President. Rule 134quater would allow the Chamber to excuse an accused who fulfils extraordinary public duties from all trial hearings, because it would omit a restriction to the duration of an excusal.

The Prosecution responded by questioning the consistency of this interpretation of Rule 134quater with the Statute. Remarkably, the Prosecution did not challenge the validity of the amendment, but argued that the new Rule could not “overrule the Appeals Chamber’s interpretation” (para. 30). In applying Rule 134quater, the Trial Chamber would have to respect all the conditions that the Appeals Chamber had listed, including that an excusal must be limited to what is strictly necessary.

In addition, the Prosecution claimed that Ruto’s interpretation of Rule 134quater would be inconsistent with the equal treatment principle, which is set down in Articles 27.1 and 21.3 (the Statute shall be interpreted and applied “without any adverse distinction”). If the new rule would allow an accused to skip all hearings for as long as he or she is (Deputy-) Head of State, it “would create a regime under which two accused seeking the same relief … would be treated differently, based only on official capacity” (para. 3). The Prosecution argued that Rule 134quater would only be consistent with the equal treatment principle, if the amendment would be read as emphasizing the duties of the individual instead of the office that the accused fulfils.

Finally, the excusal request would fail to distinguish Ruto’s extraordinary public duties from the “normal, day-to-day duties” that the Kenyan Vice-President has to perform. The Prosecution maintained that dealing with the aftermath of a terrorist attack (like the Westgate Mall bombing) would be an extraordinary public duty, but “opening new roads or welcoming a foreign dignitary would not be” (para. 41).

For all these reasons, the Trial Chamber would have to decline Ruto’s request for a “blanket excusal” (para. 38).  (more…)

Emerging Voices: Horizontal and Vertical Dimensions of International Law in U.S. Courts

by Zachary Clopton

[Zachary Clopton is the Public Law Fellow at the University of Chicago Law School.]

For decades, scholars and practitioners of international law in the United States have focused on the federal courts.  The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus.  But in the wake of decisions such as Morrison and Kiobel, some of these scholars and practitioners have turned to state courts and state law to vindicate international norms (1, 2).  To give one example, New York state courts are adjudicating foreign-law claims against the Bank of China arising from its alleged facilitation of Hamas and Palestine Islamic Jihad attacks in Israel.

The attention to states may prove to be a positive development, but notably it has tended to rely on judicially created rights—common law claims under state or foreign law, or customary international law.  What about state political branches?  Is there is a role for governors and state legislatures, and should internationalists spend some of their energy lobbying these state-level political actors?

From a policy perspective, as well as from a doctrinal and constitutional one, international litigation in U.S. courts raises both horizontal (separation of powers) and vertical (federalism) questions.  Although some judges and scholars object to international law in all of its forms, and others applaud any expanded role for international law, acknowledging the independent horizontal and vertical dimensions opens up more nuanced options.


Emerging Voices 2014 Kicking Off Today

by Jessica Dorsey

Last year’s inaugural Emerging Voices symposium was a big success, so today we’re kicking off our second annual edition. Through mid-August, we will be bringing you a wide variety of posts written by graduate students, early-career practitioners and academics.

Tune in over the next several weeks if you’d like to read more about litigation of international law in domestic courts, interstate arbitration, statelessness, and rape as a war crime–to name just a few of the topics some of our contributors will cover. Please feel free, as usual, to weigh in on the discussion. Thanks for following us here on Opinio Juris–we hope you enjoy this second edition of our Emerging Voices Symposium!

NYU JILP Symposium: Response to the Commentary on Property Rights, Labor Rights and Democratization

by Jedidiah Kroncke

[Jedidiah J. Kroncke is currently Professor of Law, Fundação Getulio Vargas Law School at São Paulo.]

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.

I want to again thank the editors at NYU JILP for their work organizing this symposium, and express my gratitude to Cynthia Estlund, John Ohnesorge, and Eva Pils for their efforts to engage my article. The following only incompletely addresses their many insightful comments.

1) Who Should Promote Legal Change in China?

Professor Pils points to a possible agnosticism in my paper as to who should be advocating for legal change in China. I agree it is crucial to clarify.

Nearly twenty years ago I made my first trip to China as very unworldly teenager. Shortly after my return I had the chance to hear Chinese expat activist Harry Wu speak about his personal experience with and the continued reality of forced labor camps in China. After his talk, I confidently stood and told Wu that China’s progressive economic liberalization would soon bring about an inevitable tide of democratization. As such, his concerns about human rights were inherently ephemeral and shouldn’t undermine unrestrained US economic engagement with China. Wu graciously expressed that he was encouraged that young people in the US were taking such an interest in China. I still look back in half-belief and full-regret at the audacity of my comment that day.

At the time, I imagined my future as one of the US lawyers who would make a career bringing to China this self-gratifying blend of justice and profit. It would take several years before I questioned this faith, and accept the utterly tangential relationship of my intentions to China’s legal development. My turn to anthropology to complement my legal studies stemmed in large part from my desire to understand the continued pervasiveness of misconceptions about Chinese law and US lawyers’ role therein.

I recount this not simply out of contrition, but to make clear that my commitment to critical comparative law is an outgrowth of my firm belief that the true agents of change in China will be its own citizens. Further, more often than not the idea that China can be changed through outside expert interventions obfuscates at best and complicates at worst efforts by Chinese activists to engage with foreign interlocutors or learn from foreign legal experience. [See generally Jedidiah Kroncke, Law and Development as Anti-Comparative Law, 45 Vand. J. Transnat’l L. 477, 544–45 (2012).] In contrast, I believe that a genuine practice of comparative law can be a crucial practical and moral support to Chinese activists and intellectuals to whom we may feel sympathetic. And it is in this spirit that the paper was written.

2) Labor Law and Comparative Development

Professor Ohnesorge’s application of Putnam’s two-level game to the selection of international legal reform projects succinctly clarifies a dynamic I left only implicitly articulated in the paper. It helps drive home the point that whatever rhetorical support is given to democratization internationally and in the US is secondary to other priorities in engagement with China. It also make clears that if there is a foreign sponsored legal reform project in China, it has been judged non-antagonistic to the interests of the CCP, or at least taken as an experiment that can be revoked if later judged to be so. The fate of many once touted foreign funded reform projects have been subject to this dynamic.

Herein I hesitate to embrace Professor Estlund’s claim about the difference between the interests agitating against collective labor rights in China and the US. While unions are associated with the Democratic party in the US, I view both sets of interests as most fundamentally averse to “small D” economic democracy. This is perhaps why I also feel some discomfort with the explanatory power of claiming that China and the US are at difference phases of economic development. Unionization was an issue in the US from the very outset of industrialization, and certainly some economically developed countries continue to have strong unions. I think the commonalities of struggles over economic democracy are fairly universal to all non-subsistence economies.

Even so, teasing out a full comparative analysis of the relationship of unions to economic democracy would certainly require much more sensitivity to Professor Ohnesorge’s critical distinction between public and private sectors unions. My claim about the CCP’s fears about labor activism is grounded in labor’s political potential that is often complicated in the public sector because of its internal position to the regime. However, I am of also wary of Ohnesorge’s descriptive claim that private unionization necessarily undermines export competitiveness, though it potentially dampens the return on capital. Here I can connect Opinio Juris to the greater blogosphere frenzy over Thomas Piketty’s assertion of the growing intensity of r>g.

In the end, what Professor Estlund notes is certainly right – the CCP is observing legal developments in the US labor law and not for reasons we may find flattering. Following this insight, I look forward to the fruits of Professor Estlund’s recent turn to comparative engagement with Chinese labor. [Cynthia Estlund and Seth Gurgel, Will Labour Unrest Lead to More Democratic Trade Unions in China?, in CHINA AND ILO FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (ROGER BLANPAIN, ULLA LIUKKUNEN, & YIFENG CHEN, ed., 2014).]

3) The Relative Position of Labor and Property Rights in China

Professor Pils testing of the paper revolves around how I comparatively situate labor repression in China to property rights repression. I regret if my discussion of property rights gives the impression that I do not think expropriation is a very real site of massive injustice in China, or that there is not a great deal of committed Chinese activism and protest in reaction to this. I had hoped that the paper would convey how proactive Chinese citizens have been about challenging injustices on a number of fronts, and historically so, to counteract the still persistent idea that they are comparatively passive or anti-legal. I look forward to the publication of Professor Pils book on human rights lawyers in China [Eva Pils, CHINA’S HUMAN RIGHTS LAWYERS: ADVOCACY AND RESISTANCE (forthcoming, 2014)], and also heartily recommend Rachel Stern’s recent book on Chinese environmental activism. [Rachel Stern, ENVIRONMENTAL ACTIVISM IN CHINA: A STUDY OF POLITICAL AMBIVALENCE (2013).]

Further, Professor Pil’s citation of recent crack-downs on any form of Chinese activism reflects the new CCP administration’s recent inauguration of a systemic campaign against almost all activists such as Xu Zhiyong and the New Citizens’ Movement. In the haze of this crackdown, it can be hard to see any comparative claims of repression as meaningful.

And I certainly did not mean to argue that the CCP is “genuinely supportive of private property rights.” The Party sees property rights in strictly utilitarian terms and subordinate to policy objectives. [The best single paper on the topic is Frank K. Upham, From Demsetz to Deng: Speculations on the Implications of Chinese Growth for Law and Development Theory, 41 N.Y.U. J. Int’l L. & Pol. 551 (2009).] This is exactly why Chinese activists understand that genuine property rights are fundamentally a political issue in the current context.

Yet, I still hold that associative labor activism is most central to the CCP’s fears about political unrest. This is the lesson of Li Wangyang and the Tiananmen aftermath and powerfully articulated in Ching Kwan Lee’s tour de force Against the Law. [Ching Kwan Lee, AGAINST THE LAW (2007).] Pils is correct that the CCP has been willing to force workplace concessions on employers to help quell unrest, and that activists who focus solely on workplace issues without reference to organizing can channel discontent to elicit official responses. But no matter the official mood, no toleration ever has been extended to private union organizing.

This is why I place Chinese developments in the context of the global experience of labor activism that emphasizes the essentially collective nature of workplace organizing. Associative labor rights address the basic structure of ongoing employment relationships that most all citizens are subject to. It is not a denigration, but simply a logistical reality that as widespread as property rights violations are, they are functionally episodic and based on the exclusionary logic of ownership. This is likely why property rights movements have not been to date highlighted as vectors of democratization via sustained movement solidarity. And I should add that activism on environmental issues, another possible source of widespread movement solidarity, has an ambivalent relationship to strong individual property rights.

Moreover, while the CCP’s experimentations with property rights may not be genuine from an ideal rule of law perspective, it does matter that they have taken specific legal form. The granting of long-term leases and the heated debate over their renewal, the formation of homeowner associations, and especially the ongoing issue of “minor property rights” all are real technical legal developments. The CCP could hypothetically abjure all elite and foreign property rights, but these developments still reflect the very real experimental process by which the CCP allows for regulatory diversity even if it ultimately decides to retroactively reject some such experiments.

In contrast, there is no such regulatory experimentation with associative labor rights. There is experimentation with non-associative labor rights, but only those that generate individuated claims. Tim Webster’s study of the limits of employment discrimination activism here is most telling, [Timothy Webster, Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat’l L. 643, 692 (2011)] as is Anita Chan’s prescient fear that employment law experiments will in fact sap life from associative labor organizing.[Anita Chan, Revolution or Corporatism? Workers and Trade Unions in Post-Mao China, 29 Australian J. Chinese Aff. 31, 52 (1993).]

The type of union election experimentation Professor Estlund discusses is one such experiment that sits on the razor edge of ACFTU unions as an instrument of government policy or as truly representative bodies. If such experiments prove unruly, the CCP will attempt to shut them down. But there is always a risk to social experiments. If the Chinese people continue to agitate and force a shift in the risk tolerance of the CCP for such reforms, the limits of the CCP’s containment strategy may be reached. Even so, I am happy to be proven wrong if such limits are breached by other areas of social activism, and it is notable that what fear the CCP has of the New Citizen Movement is not its ideas, but is potential for organizing.

4) Where to Go From Here?

The commentators all help demonstrate that there are few global bright spots for collective labor rights today. While hopeful moments can be seen in the US, China, or elsewhere, the truth remains that outside of a few outliers, the de-democratization of global labor regulation shows no sign of decline. [For a hopeful take see Alvaro Santos, Three Transnational Discourses of Labor Law in Domestic Reforms, 32 U. Pa. J. Int’l L. 123 (2011).] And the progress of individual employment rights, however desirable and justified in themselves, are at best tools within larger labor movements but insufficient for generating them.

Professor Ohnesorge’s citation of South Korea speaks to his own many comparative contributions using the Northeast Asian example [John K.M. Ohnesorge, Developing Development Theory: Law and Development Orthodoxies and the Northeast Asian Experience, 28 U. Pa. J. Int’l Econ. L. 219 (2007)], and the variety of configurations that unions can play even in non neo-liberal states. He expands on the arguments in my paper with the provocation that the renewed interest in state-led developmental models might, even in democracies, further complicate the global future of private unions. Developmental states do not tend to accommodate the pluralism and bottom-up bargaining inherent in wide-spread private unionization. Notably, a great deal of the burgeoning literature on comparative takings has also focused on the abuses of state-led developmental regimes. The fact that such regimes are often heralded as an alternative to the Washington Consensus does thus not necessarily establish that they will buck the global trend on labor regulation.

As Professor Ohnesorge also notes, it is not unrelated that I recently left the US to take a position at Direito GV in Sao Paulo, a new school uniquely committed to producing and indigenizing comparative legal knowledge in Brazil. Brazil possesses what many would consider a very strong system of mandatory sectoral union participation and contribution. Yet even after much recent progress, economic and political inequality are pressing national issues. The differences between Brazilian unionization, formally private but quasi-corporatist in operation, with both the US and Chinese models has already challenged my thinking on the relationship of unionization to economic democracy and development. It is a triangulation I am far from coherently working out, but one I hope will continue my growth as a comparativist. Early next year I will participate in a conference on the “Beijing Consensus” at the National University of Singapore by discussing how segments of Brazilian society differentially interpret the comparative lessons of China’s state-led developmentalism – and in doing so almost uniformly elide CCP labor regulation.

I am again very appreciative for the comments and look forward to drawing these insights into my future work. These are thorny topics that inspire great passion, and I am lucky to have had the opportunity to subject my work to such expert scrutiny.

NYU JILP Symposium: John Ohnesorge Responds to Jed Kroncke

by John Ohnesorge

[John Ohnesorge is currently Professor of Law at the University of Wisconsin Law School .]

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.

I completely agree with Professor Kroncke that the world of law and development, both scholarship and practice, has not paid enough attention to labor, and applaud him for addressing this deficit. Even defining development in purely economic terms, the regulation of labor is obviously relevant to GDP growth, as well as to how the economic pie is distributed. If one defines development to also include democratization, then the legal regime governing the ability of labor to organize and to participate in the political process is obviously important as well. As Professor Kroncke argues, labor has clearly been a force for democratization in some successful political transitions, and in established democracies organized labor generally plays an important role in determining economic and social policy. My response to Professor Kroncke’s fascinating paper is to offer some ideas about why labor issues seem so hard for the law and development regime to take on, and to suggest a framework for further research on that topic. The first part of my response focuses on the general issue of how legal fields get on the law and development agenda, and the second part suggests why labor issues may be especially likely to be excluded when countries are pursuing development strategies associated with the “developmental state” concept, which many are now doing.

A legal technical assistance effort, whether carried out by an organization like the World Bank or by an arm of a national government like USAID, will involve an international negotiation that can be modeled in terms of what Robert Putnam called “the logic of two-level games.” [Robert D. Putnam, Diplomacy and domestic politics: the logic of two-level games, 42(3) Int’l Org. 427 (1988).] The immediate actors on both the exporting and importing sides of the legal assistance negotiation will not be unitary free agents, but will instead be constrained by the contexts within which they operate. The image in Putnam’s classic article is of the negotiators each simultaneously being engaged in two games, one with each other, and one with their respective national constituencies. To succeed, legal reform initiatives must have made it to each side’s own list of desired reforms, and then have survived the negotiation process between the two sides.

Viewing expansive legal protections for organized labor through this lens, it should not surprise us if they often don’t survive the two-level game, while property rights or other reforms seem more likely to. From the point of view of the law reform exporter, even if the immediate actor, for example USAID under President Obama, wants to support organized labor abroad, the ability of USAID to pursue that position in international legal aid activities is likely to be constrained by the influence in U.S. domestic politics of business interests who do not favor the rise of organized labor in countries within which they produce. Law reform projects focusing on property rights or contract law are less likely to encounter opposition from the exporter’s local constituents, so for that reason alone are more likely to stay on the international agenda. Legal development projects of the World Bank or the IMF are not as sensitive to national politics, but they are constrained by the politics of their governance structures, which are themselves responsive to the wishes of national governments.

With respect to importing side of the game, even if international actors do decide to actively advocate for expansive labor protections, developing country governments may have reasons for not sharing that enthusiasm, even if they are generally in favor of promoting development, and even if they are democratic. The role of organized labor in the development context will depend on what general model of development a country follows, and that will depend on both the government’s own preferences, and the constraints the local political and social context places upon the government. If local forces are too strongly arrayed against organized labor it will not succeed as a law and development project, even if both the local government and the international actor would otherwise be in favor. On the other hand, if the developing country government and its local constituencies both favor strong protections for organized labor one might expect them to just enact them on their own, with no international involvement.

In addition, even if one feels strongly committed to organized labor, it is important to explore why even governments who sincerely favor development might approach it with caution. Here it will be helpful to consider Professor Kroncke’s critique of China’s corporatist labor regime in light of Northeast Asia’s “developmental states,” which were lauded by the World Bank as examples of “growth with equity,” [World Bank, The East Asian Miracle (1993).] and which are often cited in current attempts to theorize more state-centric, post-Washington Consensus approaches to development. China’s authoritarian corporatist labor regime is in some ways unique, but it is not so different from the approach followed by South Korea during it’s high growth era of the 1970s and 1980s, notwithstanding that China’s government purports to be of the Left, while South Korea’s was considered to be of the authoritarian Right. [On South Korea’s labor regime, see generally, James M. West, South Korea’s Entry Into the International Labor Organization: Perspectives on Corporatist Labor Law During a Late Industrial Revolution, 23 Stan. J. of Int’l L. 477 (1987).] Even if they are in favor of rapid, market-oriented economic development, it is not surprising that authoritarian governments such as China’s are attracted to state-dominated systems of corporatist labor regulation for purely political reasons. In my view, Professor Kroncke’s paper raises perhaps even more challenging issues for countries such as Brazil, where he now works, that wish to be “new developmental states,” to be vibrant democracies while also retaining a large role for the state in supporting and guiding economic development.

Professor Kroncke does not focus on the different implications that might follow from strong unions in the private versus the public sector, but while they both raise challenges for an erstwhile developmental state, the implications are different. Looking first at public sector unions, the East Asian developmental states were characterized by civil service bureaucracies known for being highly meritocratic and professionalized, yet also lean in the sense of not constituting a major drain on government resources. This was certainly part of the reason observers described the East Asian developmental states as “hard” with respect to social and political forces, able to enjoy a comparatively high level of autonomy and flexibility in implementing industrial policy. Strong public sector unions may be desirable for other reasons, but it seems clear that they contribute to a politicization of the bureaucracy, they introduce rigidities in policy implementation, and they may contribute to an expensive bloating of the public sector workforce. Any developing country interested in the developmental state model will have to grapple with how to maintain the insulation and technocratic expertise of its economic bureaucracy, and will also have to keep public sector spending under control so as to maintain fiscal discipline. Strong unionization rights in the public sector will be in some tension with these goals for any developmental state, even one strongly committed to democracy. An expansive role for private sector unions will be in some tension with another characteristic of the classic developmental state, which is the ability to keep wage growth roughly in line with productivity gains. This is important for the export competitiveness of local manufacturers, as well as for the attractiveness of the country for foreign direct investment. For a developmental state to be truly developmental wages must rise, but export-orientation and openness to FDI both require that wages remain globally competitive. A government that wishes to purse a developmental state model involving export orientation and attractiveness to FDI may be reluctant to share control over wages and other labor issues with truly independent unions, even if it is otherwise committed to democracy.

Although it would be quite an irony if true, the more free-market development strategies associated with neoliberalism might be able to accommodate strong unions as effectively as developmental state approaches that call for the state to be actively involved in administering industrial policy and maintaining national competitiveness. To neoliberalism, strong unions might be an unfortunate cost of doing business. To the developmental state model, however, strong unions present almost existential challenges, certainly in an authoritarian context such as China’s, but perhaps also in a democracy. Professor Kroncke’s paper challenges us to explore these important issues, and it will be interesting to see how they play out as more developing countries experiment with the policies of the developmental state.

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…)