Symposium Paper 2: Toward an International Criminal Procedure: Due Process Aspirations and Limitations

by Gregory Gordon

Abstract

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.

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Symposium Paper 3: Legislator of Last Resort: The Security Council’s Emerging Role in WMD Proliferation Crises

by Vivek Kanwar

Abstract

The questions asked by the organizers of this symposium on recent challenges facing public international law—whether international law is “too weak to make a difference” or whether its institutions are “invasive to the point of being undemocratic”— and the specific challenges mentioned by way of example (“terrorism, hegemony, illegitimacy”) all converge in the topic of this paper: an inquiry into the proper role of the Security Council in addressing ongoing nuclear, biological, and chemical proliferation crises. Put simply, the challenge of bringing WMD proliferation under control is complicated by the on-going task of bringing the Security Council itself under the rule of law. In this paper, I will contrast two conceptions of the Security Council’s role in non-proliferation, referred to here as “enforcement” and “legislation.” I ask which approach increases the legitimacy and capacity of the Security Council, and conclude that although the Security Council is more assured in its legitimacy as a law-governed “enforcer” than as a “legislator,” two arguments urge Security Council to pursue non-proliferation as an the appropriate subject of general legislation: (1) non-proliferation is a carefully defined and delimited area of legislation closely linked to the peace and security mandate. (2) that uniformity is consistent with the demand of states is sensitivity to formal equality a principled general obligations non-proliferation. Even so, insofar as the Security Council’s legislation entails legal effects and justifications, and promotes respect for general rules of international law, it should also be bound to respect UN Charter norms general principles of international law (e.g., jus cogens and the principle of ultra vires) as applied to international organizations.

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Symposium Paper 4: Inefficient Customs in International Law

by Eugene Kontorovich

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This Article explores whether and when rules of customary international law (CIL) can be expected to be efficient. Customary rules are often regarded as desirable because in certain circumstances, they promote the welfare of the group in which they arise. Unless these circumstances apply among states, the efficiency arguments for the legalization of customary norms do not apply.



The Article takes as its central observation the divergent treatment of custom in domestic and international law. In international law, if a customary behavior of states can be identified, it is automatically elevated to the status of legal obligation without any independent examination of whether the custom is a good one. International custom is customary international law. This reification of custom is in marked contrast to the treatment of custom in private law. No one doubts that customary behaviors exist in various societal subgroups, but tort law does not assume that customs are normatively desirable, and does not automatically transform customs into legally binding obligations. Thus tort law does not take custom to dictate the standard of care; the fact-finder must independently determine whether the practice is efficient, though its customary status has some positive evidentiary value.



Law and economics scholars have varied views about whether custom is presumptively efficient in the private law context. The most optimistic view holds that private custom will generally be welfare enhancing, and thus courts should give legal recognition to such practices. Yet even the optimistic view holds that efficient custom would only arise in certain circumstances: when there are thickly repeated dealings between members of an insular, homogenous group whose members play reciprocal roles.



The Article takes these earmarks of efficient custom and examines whether they apply to international custom. It finds that much of international custom should not be expected to be efficient even in the most optimistic view of custom. Some areas of CIL, like diplomatic privileges, might satisfy efficient custom criteria. This suggests that, contrary to current practice, CIL should not be treated as one undifferentiated phenomenon. Rather, the standards for establishing a CIL norm should vary across different substantive contexts and different groups of states.



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Symposium Paper 5: Climate Change Litigation as Pluralist Legal Dialogue?

by Hari Osofsky

Abstract



This thought piece will focus on the following question: What are the implications of conceptualizing of climate change litigation as pluralist legal dialogue? Part II provides the conceptual framework of the article by introducing and interweaving law and geography, judicial dialogue, and legal pluralism. Part III of the paper uses the example of California’s role in climate change litigation to explore the idea of substate actors as international lawmakers. Part IV of the paper considers the example of supranational climate change petitions to engage the complex informal role that these petitions play in making law. Part V of the paper draws from these examples to analyze how a pluralist approach might address issues of scale and formality, and the implications of a hybrid model of international lawmaking for the regulation of anthropogenic climate change. The paper concludes with reflections on the significance of how legal boundaries are drawn for the development of more effective approaches to transnational regulatory governance.



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