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Weekly News Wrap: Monday, May 19, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Europe

  • The defense case of Ratko Mladic, a former Bosnian Serb army general, opens at the ICTY today; Mladic is accused of orchestrating the massacre of almost 8,000 Muslim boys and men in Srebrenica.
  • Saudi Arabia is considering trade sanctions against the Netherlands because of stickers printed by far-right politician Geert Wilders which display anti-Islam slogans in the colors of the Saudi flag.
  • Russia came under heavy criticism at the WTO from several of its trading partners, who raised sharp questions over whether Moscow – one of the global trade body’s newest members – is indeed adhering to the international trade commitments that it took on less than two years ago.
  • The West should impose tougher sanctions on Russia, which is waging a “hidden war” in eastern Ukraine, Ukraine’s acting Foreign Minister Andriy Deshchytsia said in an interview.

Middle East and Northern Africa

Americas

  • China’s “provocative” actions in maritime disputes with its neighbors are straining ties with the United States, raising questions over how the world’s two biggest economies can work together, a senior U.S. official said.
  • Canada broke with the United States and did not impose sanctions on two key allies of Russian President Vladimir Putin because the pair had Canadian business interests, according to sources familiar with the matter.

UN/Other

http://opiniojuris.org/2014/05/19/weekly-news-wrap-monday-may-19-2014/
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Weekend Roundup: May 10-16, 2014

by An Hertogen

This week on Opinio Juris, the NYU Journal of International Law and Politics brought you a symposium on Professor Jedidiah J. Kroncke’s article Property Rights, Labor Rights and Democratization: Lessons From China and Experimental Authoritarians. In their comments, Cynthia Estlund looked at parallels with the US, Eva Pils pointed to a discrepancy in transnational civil society’s concern for labour and evictee rights in China, and John Ohnesorge reflected on why labor issues have not received much attention in the world of law and developmentJedidiah Kroncke’s response can be found here.

Kevin added the Security Council’s refusal to pay for any expenses related to an ICC investigation in Syria as another reason to be skeptical about the likelihood of a referral. More on Syria in a two-part guest post by Naz Modirzadeh who responded to the open letter to the UN on humanitarian access to Syria.

Deborah shared her opinion on the Al Nashiri case and the question whether an armed conflict existed. In another guest post, Ezequiel Heffes offered four arguments why international humanitarian law covers detention in non-international armed conflicts.

Finally, Duncan looked at the US job market for international law academics, and Peter wondered if an “anti-passport” could be helpful to deal with the FATCA woes of potential Americans overseas.

As every week, Jessica wrapped up the news and listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/05/17/weekend-roundup-may-10-16-2014/
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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.

http://opiniojuris.org/2014/05/14/nyu-jilp-symposium-response-commentary-property-rights-labor-rights-democratization/

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.

http://opiniojuris.org/2014/05/14/nyu-jilp-symposium-john-ohnesorge-responds-jed-kroncke/

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.

http://opiniojuris.org/2014/05/13/nyu-jilp-symposium-promoting-democracy-within-role-rising-civil-society-taking-authoritarian-government-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.

http://opiniojuris.org/2014/05/13/nyu-jilp-symposium-industrial-life-without-independent-unions-us-looks-china-china-looks-back/

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…)

http://opiniojuris.org/2014/05/13/new-york-university-journal-international-law-politics-vol-461-online-symposium/

Weekly News Wrap: Monday, May 12, 2014

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

http://opiniojuris.org/2014/05/12/weekly-news-wrap-monday-may-12-2014/
This entry was posted in Weekday News Wrap.

Weekend Roundup: May 10, 2014

by An Hertogen

A busy week on Opinio Juris with a book symposium on Just Post Bellum-Mapping the Normative Foundations. Kristen introduced the great definitional debate on the meaning of “just post bellum” (JPB). Jens Iversion contrasted JPB with transitional justice and Ruti Teitel discussed JPB as transitional justice. Jens Ohlin argued in his post that ideas about omission liability are stumbling blocks towards the acceptance of JPB. Where Eric de Brabandere offered a normative critique of JPB in international law, James Gallen was more optimistic that there was value in an interpretative conception of JPB. Jennifer Easterday focused on peace agreements as a framework for JPB, and Christine Bell explored the dynamics that have led to all these overlapping conceptualisations of international law’s role in post-conflict situations. Cymie Payne discussed the concept of environmental integrity central to her chapter and Dov Jacobs explained the thinking behind his chapter on the central role of sovereignty in JPB. Greg Fox shared his thoughts on how JPB discussions can navigate the unilateral/multilateral divide. James Pattison examined who has a duty to rebuild after a war and Carsten Stahn finished the symposium with a post on JPB and the ethics of care.

The Al-Nashiri prosecution also attracted commentary with Kevin expressing surprise at Judge Pohl’s order that hazarding a vessel is a war crime and arguing that the attack on the USS Cole did not take place in an armed conflict. David Frakt also wrote a guest post on the existence of an armed conflict in the Al-Nashiri case.

In another guest post, Hayk Kupelyants advanced an alternative interpretation of pari passu clauses.

Of our other regular bloggers, Julian discussed how Colombia’s Supreme Court had apparently followed the US Supreme Court’s lead in denying that ICJ judgments are self-executing under domestic law, and Peter evaluated the looming constitutional challenge against the Foreign Account Tax Compliance Act.

Finally, Jessica wrapped up the news and I listed events and announcements.

Many thanks to our guest contributors and have a nice weekend!

http://opiniojuris.org/2014/05/10/weekend-roundup-may-10-2014/
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Jus Post Bellum Symposium: Jus Post Bellum and the Ethics of Care

by Carsten Stahn

[Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University, and Programme Director of the Grotius Centre for International Legal Studies.]

Jus post bellum comes in many forms and variations. One of the main shortcomings in existing discourse is the lack of engagement with the interplay between law and morality. Like the laws of war, and the law on the use of force and intervention, jus post bellum is grounded in both moral (e.g., ‘principles of humanity’, ‘dictates of public conscience’) and legal considerations. The two are often portrayed as in conflict with each other.

In just war theory, the concept has been traditionally linked with ‘judgment’ of conduct in international society (e.g. fairness of behavior, sustainability). In his ‘After War Ends’, Larry May has offered six jus post bellum principles that he considers as ‘primarily moral norms’: (i) rebuilding, (ii) retribution, (iii) restitution, (iv) reparation, (v) reconciliation and (vi) proportionality. They are framed as ‘obligations’, but are approached with caution by lawyers, since they are based on an abstraction of context-specific legal norms and principles or de lege ferenda considerations.

Lawyers have typically remained skeptical of the role of morality and ethics in their theorization of jus post bellum, partly based on risks of instrumentalization and abuse of authority. For centuries, discourse on jus post bellum has been dominated by claims over rights and duties of victorious states, entitlements after war and post-war justice. In the 20th century, approaches towards fundamental concepts (e.g. ‘punishment’ of states, ’occupation’) have changed through the increasing concern of international law with peoples’ and individual rights. A nucleus of legal principles is developing incrementally through practice and lawmaking in different areas, such as peace treaties (see e.g., Christine Bell pp 191-204, Jennifer Easterday, pp 379-412), peace operations (Dieter Fleck, pp 43-57), (post-) occupation law (see e.g,. Adam Roberts, Kristen Boon, Yael Ronen, pp. 428-445), international criminal justice (Fréderic Mégret, pp. 519-541) and statebuilding practice (Matthew Saul, pp. 447-464). One of the deficits of modern jus post bellum principles (e.g. accountability, vetting, reparations) and approaches to peacebuilding is that they are often presented in technical labels (‘rule of law’, ‘capacity-building’, ‘civil administration’) that mask their normative agenda or try to foster acceptance through reliance on ‘global community’ standards.

This trend is artificial and detrimental to the development of jus post bellum. The concept offers not only criteria for the evaluation of behavior (e.g., legality or morality of acts and/or omissions), but is geared at facilitating and guiding ‘choices’ in transitions. Such ‘choices’ require normative grounding, justifications and a moral stance that goes beyond legal rules and standards. Some rules and legal regimes in the areas of justice (‘principle of legality’), governance (‘political participation’) or human rights (property, reparation) require adjustment in order to accommodate the specific tensions inherent in the management of transition from conflict to peace (e.g., via targeted accountability, provisional centralization of authority, mass claim mechanisms). Moreover, the very meaning of what is ‘just’, ‘fair’ or conducive to societal peace in a specific context emerges through discourse and processes of interaction (e.g., demonstration and contestation) and is shaped by ‘institutional’ ethics and individual decision-making processes that cannot be seen in isolation of the law.

In the past decade, the turn to ethics under jus post bellum has gained a new turn with the focus on ‘sovereignty as responsibility’ under the Responsibility to Protect (R2P) which emerged as a modern extension of just war theory after Kosovo. The association of post-conflict responsibility with legal duties of reconstruction or rebuilding after conflict’ has created anxieties and fears among states. This has led to a marginalization of the ‘responsibility after conflict’ in UN practice (e.g. ‘Implementing the Responsibility to Protect’). Where ‘responsibility’ is invoked in public and legal discourse, it is typically conceptualized through the perspective of the agent (wrongdoing, causality) or the exercise of control (e.g. the Pottery Barn rule ‘If you break it, you own it’), as demonstrated in Iraq and thereafter. The inadequacies of this approach have been criticized by others, such as James Pattison, who suggests a ‘capacity’-based model (here) that might have some parallels with the ICJ’s approach towards prevention in Bosnia and Herzegovina v Serbia and Montenegro (para. 430).

One way to re-think this ‘responsibility’ dilemma that has not received enough attention in jus post bellum is the concept of the ethics of care. The theory of ‘care’ offers an alternative normative grounding for responsibility than rationalist accounts (e.g., power, influence, interests etc). It shifts the attention from the ‘agent’ to the ‘other’, and provides a ‘relational account’ between actors, based on ‘need’, ‘empathy’ and concern. The connection between ‘care’, morality and modern accounts of responsibility has been drawn by various scholars  (see e.g., Virginia Held, in relation to international law; Louise Arbour and Craig Barker, in relation to R2P; and Signal Ben-Porath in relation to jus post bellum). This argument takes into account the interdependence between agents and subjects of protection, and places greater attention to the needs of individuals, their treatment as subjects rather than objects, and the relationships arising through the assumption of agency in international action. This care-based approach is often discarded as a utopian project. I would argue that it deserves greater space in the theorization of particular areas of jus post bellum.

Many of the existing humanitarian norms guiding intervention and armed force assume the existence of a relationship of ‘care’. Care is a fundamental prerequisite of the ‘precautionary’ principle. Duties of care have been identified as an essential element of the application of R2P (‘Responsibility while Protecting’). Arguments of ‘care’ inform the interpretation and application of certain normative concepts under the law of armed force, such as ‘necessity’, ‘proportionality’ or ‘humanity’. These principles reach beyond warring parties, apply both during armed conflict and in post-conflict contexts and entail duties of care for the aftermath of conflict. The regime governing the protection of the environment (see Cymie Payne, pp. 502-518) is a paradigm example. It encompasses a duty to remedy violations irrespective of the legality of conduct or intended harm.

Many fundamental aspects of peacebuilding cannot be explained without the existence of relationships of care. The concept of ‘care’ is an inherent element of the justification of the exercise of public authority over foreign territory. It underpins the legitimacy of ‘trusteeship’ under the law of occupation or idea of ‘caretaker’ government under international administration. The ethics of care require agents to justify for whom they exercise authority, and to test whose consent (Aurel Sari, pp. 467-501) matters. Moreover, they determine fundamental parameters of ‘exit strategies’ (see Dominik Zaum, pp 334-344), such as the balance between continuing commitment and the necessity of disengagement of international actors.

The need to frame responsibility through ethics of care is reflected in regulatory practice. In past decades, there has been a significant rise in the development of ethical principles, code of conducts and informal instruments (Geneva Call, ‘Ruggie’ principles) determining the conduct of individual actors (e.g. UN personnel, non-state actors companies) in conflict and post-conflict environments. They rely on the ethics of care and are necessary to translate abstract obligations into tangible guidelines for action. Rather than denying the space of the ethics of care in international law and the development of jus post bellum, we should embrace it.

http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-jus-post-bellum-ethics-care/
This entry was posted in Book Discussions, Featured Posts, Human Rights, Law of War and tagged .

Jus Post Bellum Symposium: The Responsibility to Protect, Jus Post Bellum, and the Duty to Rebuild After War

by James Pattison

[James Pattison is a Senior Lecturer in Politics, University of Manchester.]

It’s often been claimed that there exists a responsibility to rebuild after war on behalf of the international community in cases such as Afghanistan, Iraq, Kosovo, Somalia, and so on. For instance, this was one of the key tenets of the report by the International Commission on Intervention and State Sovereignty on the responsibility to protect (R2P). But who has the responsibility to rebuild? So, for example, who should rebuild Libya, Mali, and Afghanistan? Should the U.K. and U.S. have been tasked with rebuilding Iraq, given that they fought the war, or were other states, such as France and Germany, morally required to help rebuild Iraq, even though they didn’t take part in the war?

As I discuss at greater length in a forthcoming article in the British Journal of Political Science (on which this blog draws), some have offered an (often implicit) assignment of the issue of who should rebuild. In particular, many leading advocates of the relevance of jus post bellum for Just War Theory (such as Gary Bass) hold what we might call the ‘Belligerents Rebuild Thesis’. This asserts that those who have been involved in the fighting should be tasked with the duty to rebuild. This is often asserted about the unjust aggressors: they should rebuild after to repair the mess that they have caused. This was a claim that was frequently made in the aftermath of the 2003 War in Iraq. For instance, Colin Powell purportedly claimed ‘you broke it, you own it’. But it may also be applied to the victors in general, regardless of the justice of their war in terms of the principles of jus ad bellum. For example, the victors should rebuild to ensure that the basic needs of those in the defeated belligerent are met. But it’s perhaps more often defended for those that fight just wars, such as those that undertake just humanitarian interventions. For example, Michael Walzer argues that

Once the Vietnamese had sent an army into Cambodia, for the best of reasons, to save lives (whatever their other reasons), they were bound to keep on saving lives in Cambodia. They had to secure and maintain some kind of law and order and establish a nonmurderous government to replace the one they had overthrown.

There are several problems with this view, that is, the Belligerents Rebuild Thesis. The first is that the belligerent may not be the most suitable agent to rebuild. This is perhaps most obvious when it has fought an unjust war. For example, its post-war occupation may be heavily opposed by the local population leading to a reigniting of the conflict. This point can be made more precisely: the belligerent may not have the (i) right to rebuild. They might, for instance, be likely to do a very poor job of rebuilding. But, even if belligerents have the right to rebuild in certain cases, it doesn’t follow that they are likely to have the (ii) duty to rebuild. Other agents may be better able to carry out the rebuilding than the belligerent.

But why does the Belligerents Rebuild Thesis seem so popular? What lies at the heart of its intuitive appeal is that belligerents sometimes possess duties of reparation, by which I mean duties to redress the wrongdoing for which they are morally culpable. But duties of reparation are of limited relevance for the issue of who should rebuild. It may be difficult to trace causally which agents were the belligerents—and so owe reparative duties—and there might not always be left belligerents to which to assign the duty rebuild. For instance, a war between two statist parties may be so acrimonious that the institutions of both states no longer function. Alternatively, especially in the case of a non-state war, the belligerent (for example, a guerrilla movement) may no longer exist after the war.

The second problem with the Belligerents Rebuild Thesis is that it seems unfair in cases when the belligerent has fought a just war. Such a belligerent has done nothing wrong that means that they, rather than anyone else, should bear the costs of rebuilding.

Third, and related, the Belligerents Rebuild Thesis wrongly excludes non-belligerents from the rebuilding process. Non-belligerents (for example, the UN) may sometimes be required to rebuild since they are best placed to do so. In fact, if the Belligerents Rebuild Thesis is premised on the claim that ‘you broke it, you own it’, it seems to be too narrow, since certain non-belligerents may have also been culpable for the war, such as those that finance the war and provide military equipment.

The fourth problem is that it may have problematic consequences for future wars. If it were required of just belligerents that they have to rebuild the other party after the war simply because they are a belligerent, this may discourage potential future just interveners and defenders from launching their wars.

Instead, I’ll now briefly suggest that there exists an international, collective duty to promote and to establish just political institutions, which translates into a duty to rebuild for the most justifiable rebuilder.

An International Duty to Rebuild

Why is there this duty? It stems from a ‘Natural Duty of Justice’ to promote and to establish just political institutions, as presented by John Rawls and Allen Buchanan. If we accept certain natural duties of justice, such as to establish just political intuitions, which there is a strong case for if one is committed to moral equality, then it seems that there is a duty to rebuild. The international duty to rebuild after war involves an important set of cases for this duty–—that is, where just post-war political institutions do not exist.

In fact, the duty to rebuild after war seems to be one of the most important implications of the Natural Duty of Justice for two reasons. First, post-war societies may comprise several of the cases in which societies lack just political institutions. Second, the strength of the Natural Duty of Justice may be much greater in cases of the duty to rebuild because war-torn societies (for example, Somalia) sometimes have no effective political institutions, let alone just ones. It may be even more morally urgent to address anarchy and to establish basic order than to put in place just institutions where there are currently unjust ones.

Assigning the Duty to Rebuild

So, there’s an international, collective duty to promote and to establish just political institutions. But who should act upon this duty and deliver the duty to rebuild? To answer this question, it helps to consider two central issues: (i) which agent has the right to rebuild and (ii) which agent has the duty to rebuild.

To have the right to rebuild, agents must have just cause for rebuilding. Their rebuilding must be likely to be reasonably effective. And, it helps their justifiability if they are representative of the opinions of those in the political community that they are rebuilding on the means, methods, and goals of the rebuild. For instance, if those in the political community don’t want their community to be rebuilt by the agent or in a particular way, the agent should respect these wishes. They also should have a suitable intention and be authorised by the appropriate international political institution. This account of the conditions to have the right to rebuild will potentially shrink the possible pool of rebuilders. Within the remaining pool of agents–—all of which would meet these conditions–—who has the duty to rebuild?

The duty to rebuild should fall on the potential rebuilder whose rebuilding is likely to be most morally justifiable, which will turn on the likely capability of the rebuilder. To that extent, amongst those that have the right to rebuild, it should often be the most capable rebuilder that rebuilds.

What does this mean in practice? Who should actually rebuild? I can’t offer a full account of this here, but I’ll offer some brief remarks. First, there should be a presumption against the belligerents rebuilding. Instead, it seems that the rebuilding process shouldn’t only be authorised by the UN (that is, by the Security Council), but also generally be carried out by it (for example, by UN peacekeepers or a UN transitional administration). The UN, despite notable flaws, seems generally (if not always) best placed to rebuild in the most justifiable manner for several reasons. But all current potential agents have several pretty serious deficiencies; there needs to be significant reforms to our rebuilding architecture. There might be the case for a stronger UN Peace-building Commission to be able to handle all cases of post-war rebuilding fully justifiably that, for example, has improved coherence and coordination, and is very well resourced.

It seems that we have a duty to carry out such reforms. If the responsibility to rebuild requires a stronger UN system for rebuilding so that the responsibility to rebuild can be properly realised, there is a further duty of justice to act upon this. So, there is a duty to build an international institution in order to fulfill the duty to rebuild.

http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-responsibility-protect-jus-post-bellum-duty-rebuild-war/
This entry was posted in Book Discussions, Featured Posts, Human Rights, Law of War and tagged .

Jus Post Bellum Symposium: Navigating the Unilateral/Multilateral Divide

by Gregory H. Fox

[Gregory H. Fox is a Professor of Law and Director of the Program for International Legal Studies at Wayne State University Law School.]

How should the idea of a jus post bellum be integrated into existing international law?  A wide array of norms now applies to post-conflict states: international humanitarian law, jus ad bellum, human rights law, the law of international organizations, and occupation law to name only a few.  If a jus post bellum is to be seen as essentially normative — as opposed to serving as a set of ethical guidelines — it must come to terms with certain essential attributes of the international legal system it seeks to join.

In my chapter of Jus Post Bellum: Mapping the Normative Foundations, I argue that one of the most fundamental attributes of the contemporary post-conflict period is the distinction between norms regulating unilateral action and those regulating multilateral action.  The two are distinguished by the presence or absence of a Security Council resolution under Chapter VII of the Charter.   A Chapter VII resolution may remove the actors addressed by its terms from the regulatory regimes listed above.   A jus post bellum that ignored this bifurcated structure would risk either incoherence or irrelevance.   If it regulated only unilateral actors then it would become largely irrelevant, since the Security Council now issues Chapter VII resolutions on virtually all post-conflict states.  If it sought to regulate multilateral actors it would become incoherent, since a Chapter VII resolution trumps virtually all other sources of law.  A jus post bellum that asserted primacy over such resolutions would find little support in contemporary doctrine.

My argument relies on three propositions.  The first is that absent a Chapter VII resolution, the most significant legal regimes applicable to the post-conflict period – jus ad bellum, occupation law and the law of human rights — are almost exclusively directed at states.   The codification of jus ad bellum in Charter article 2(4) applies by its terms only to states.  The same is true for Article 51 concerning the right to self-defense.  By contrast, the Security Council is not limited by the jus ad bellum.  The criteria in Charter article 39 triggering application of Chapter VII have been interpreted to allow a much broader scope of action than Article 2(4) permits states acting unilaterally.

The modern law of occupation is set out in the Fourth Geneva Convention of 1949.  Like all the Conventions, the Fourth governs the conduct of the treaty’s “High Contracting Parties.”  To date, these have been limited to states.  Neither the U.N. nor any other international organization has even attempted to ratify the Convention.   In 1999, the U.N. Secretary-General issued a Bulletin declaring that U.N. forces would abide by a generalized set of humanitarian norms “when in situations of armed conflict they are actively engaged therein as combatants.”  The Bulletin contains no guidelines specific to occupation, though the protection of civilians (“protected persons”) is emphasized.  Some have suggested a functional approach:  occupation law should bind IOs when they are capable of complying with its terms.  But because, as Marco Sassoli notes, “some provisions of IHL cannot be applied to the UN since it lacks, e.g., a territory, a penal system, or a population,” the result would be less than full compliance with occupation norms.

But even if fully applicable to Chapter VII operations, a central provision of occupation law would severely limit the Security Council’s ability to carry out the broad-based reforms that have become central to its post-conflict missions.  Occupation law prohibits broad legislative acts by occupiers in an effort to preserve existing laws and political institutions in the territory.  Unlike the human rights obligations in occupation law, this “conservationist principle” does not duplicate IO practice; indeed, it is the very antithesis of what multilateral post-conflict missions seek to accomplish.  Those missions are reformist by their nature.

Finally, while human rights law famously helped break the state’s near-monopoly on legal capacity to acquire rights under international law, it has not generally expanded obligations beyond the state.  Robert McCorquodale puts the matter directly: “The international human rights law system is a state-based system, a system in which the law operates in only one area: state action. It ignores actions by nonstate actors, such as the United Nations . . . Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and do control all their activities.”  This despite the obvious reality that IOs such as the UN “can and do violate human rights.” (96 Am. Soc’y Int’l L. Proc. 384, 384 (2002))

The second proposition: even assuming one or more of these bodies of law would apply to both sets of actors in a post-conflict state, portions of the rules may be preempted under Chapter VII.  Security Council preemption is a consequence of Charter Article 103, which prioritizes commitments under the Charter over those imposed by other treaties.   This legislative power of the Council is now unexceptional, supported both by the ICJ and respected commentators.

The third proposition: if the web of treaty rules particularly important to post-conflict states – jus ad bellum, occupation law and human rights – was designed to regulate states acting unilaterally, the modern era has taken a decidedly different approach.  Starting in the early 1990s, the Security Council began engaging with all aspects of armed conflict.  The goal of multilateralizing warfare – integral to the Charter’s original design — has largely succeeded.  According to two major datasets of armed conflict, there were ten inter-state armed conflicts between 1990 and 2010.  All but two of these were addressed in one form or another by the UN Security Council.  The Council is also regularly involved in all aspects of civil wars, though precise data is not readily available.  For both types of conflict, the Council’s involvement has not been episodic but holistic, as it regularly addresses every stage and virtually every issue in armed conflict, from inception to termination.   This move to multilateralism has been particularly evident at the post-conflict stage.  The UN has become the indispensable actor in rebuilding political, economic and social institutions.  Its involvement has ranged from full international governance to advising transitional regimes.

The norms applicable to post conflict states are thus highly bifurcated.  On the one hand, the existing treaty regimes are state-centric in their design and also largely in their application.  On the other hand, the Security Council has multilateralized the post-conflict period for almost all states experiencing armed conflict in the last decade (to a greater or lesser extent to be sure).  But if we can assume the Council will not retreat from these reconstruction initiatives in the near future, existing post-conflict norms barely regulate the most important actor in the field.

Architects of a nascent jus post bellum thus face a dilemma.  The new regime can mirror the state-centrism of existing law, in which case it will be of questionable relevance to the IOs and IO-sanctioned operations dominating today’s post-conflict missions.  Alternatively, the new regime can expand its application to include multilateral actors.  But in that case it must provide a convincing justification for subordinating Council authorizations under Chapter VII to a set of treaty-based or customary rules.  That seems an impossible task.  A third alternative would be to acknowledge the difficulty of including both states and multilateral actors under the same normative rubric and either (i) settle for a jus post bellum that remains exclusively state centric or, (ii) include multilateral actors within the scope of the new norms but fully recognize that the Security Council may depart from those norms when it chooses to do so.

Perhaps jus post bellum’s ascent into law is premature.  If the roles of individual states and the Security Council in post-conflict states can be harmonized, perhaps a more uniform body of norms can emerge that does require tailoring to the unique characteristics of each.  At that point the division between the two might recede in importance.  But for now it remains fundamental and a jus post bellum cannot avoid reckoning with its implications.

http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-navigating-unilateralmultilateral-divide/
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