David Landau Responds to Mark Tushnet

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium of late January. It was originally posted on March 9, but we repost it today to avoid confusion with other journal symposia.]

I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means.

In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem.

The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue. (more…)

David Landau Responds to Mark Tushnet

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium].

I would like to thank Mark Tushnet for his thoughtful reply to my article. As he notes, it is a deeply positive development that we have moved from talking about whether constitutions should include social rights to how they should do so. The debate about means is a particularly difficult theoretical and empirical problem, one that is likely to be one of the central debates in the field of comparative constitutional law for a long time. And the question of the effect of social rights on the poor ought to be perhaps the central question in evaluating these various means.

In this light, we ought to consider the question of whether all four of the remedial methods I discuss can be improved upon. There seems to be little debate on the question of whether individual enforcement of social rights and enforcement of these rights via “negative injunction” are useful poverty reduction tools. Neither seems effective as currently constructed, but it is important to think about whether either device could be improved. For example, the individual enforcement model might be creatively engineered to have more of a system-wide effect, perhaps via a liberal use of contempt-like sanctions. Similarly, some of the recent South African jurisprudence may have demonstrated that even the “negative injunction” or status-quo-protecting model can benefit the poor in important ways, if cleverly deployed. The South African courts have refused to evict residents (thus freezing the status quo) in order to push the government to upgrade existing settlements rather than razing them and undertaking wholesale renewal. And in one case, a court refused to allow private property owners to evict impoverished squatters but allowed those private property owners to seek damages against the state – this may be an effective way to incentivize the bureaucracy to solve the problem.

The main disagreement between Professor Tushnet and my piece is on the other two types of remedies; in other words, on the question of softer, dialogue-based remedies versus harder, structural injunctions. Professor Tushnet tends to favor the former and I tend to favor the latter. I admit that this is a difficult choice, especially since courts are constrained by various features of their political environments – very hard remedies might well be infeasible in a one-party state like South Africa, for example. And as I note in the paper, structural injunctions are sometimes effective, but have considerable capacity costs on courts and often do not achieve much. So the choice of remedies seems to me to be one between highly imperfect options. Also, I see the issue of hardness or softness in system-wide remedies as basically lying on a continuum – these are differences in degree rather than in kind. That is, as Professor Tushnet points out, both structural injunctions and softer remedies like Grootboom are dialogical in nature, but there are important differences in whether the court or the legislature leads the dialogue. (more…)

Mark Wu Responds to Scott Kennedy

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

I want to thank Scott Kennedy for his insightful comments. Kennedy’s work has been instrumental in increasing our understanding of the forces driving the rising use of trade remedies in China and other emerging powers. He is certainly correct to point out that many questions remain unanswered. My hope is that this article will spark others to join in examining this phenomenon and debating the consequences of maintaining the global antidumping regime in its current form.

I agree with Kennedy that the methodology for the retaliation analysis is not as robust as one might hope. As I myself note in the discussion of the methodology in the article, my approach presents a real risk of Type I errors. I did try to limit the possibility of Type II errors by examining whether an action may be in response to another protectionist tool besides antidumping sanctions and found little change in my results. But the possibility exists that my approach may be both over- and under-inclusive in what it considers to be retaliation.

Proximity in timing is but an indicator of a retaliatory motive, and I agree with Kennedy that further confirmation through case studies would help buttress my retaliation argument. Unfortunately, I found that policymakers involved in deciding antidumping petitions were willing to only go as far as to discuss overall trends, but not specific cases, even when promised anonymity. This reticence limited my ability to rely upon case studies in my methodology. Here’s to hoping that others will find greater success in getting government officials to open up further about specific cases in future studies. (more…)

A Response to Mark Wu by Scott Kennedy

by Harvard International Law Journal

[Scott Kennedy, associate professor of Political Science and East Asian Languages & Cultures and director of the Research Center for Chinese Politics & Business at Indiana University, responds to Mark Wu, Antidumping in Asia’s Emerging Giants. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Antidumping: Less Change than Meets the Eye

Mark Wu’s article, “Antidumping in Asia’s Emerging Giants,” is an impressive piece of scholarship and deserves widespread attention. He analyzes how an already controversial element of the trading system, the antidumping regime, has become more problematic because of the growing use this tool by India and China. And he does so by assembling a comprehensive data set of antidumping cases at the national, industry, and product level for both countries.

Wu is clearly a strong critic of antidumping no matter who uses it. He shows how the standards for initiating and proving antidumping have declined over time, and that rather than ensuring fair trade, antidumping is essentially an illegitimate protectionist tool of those who want to avoid foreign competition. Wu argues that the antidumping regime is becoming a more widely abused tool because India and China have joined traditional users in wielding this weapon. If antidumping reforms are not enacted, the likely consequence will be an explosion of cases by India and China, further distorting international trade patterns and leading to welfare losses. Hence, he encourages the United States and European Union to alter their stance in the Doha Round and embrace reforms before the system they created turns decisively against them. (more…)

Antidumping in Asia’s Emerging Giants by Mark Wu

by Harvard International Law Journal

[Mark Wu, Assistant Professor of Law at Harvard Law School, describes his recently published article, Antidumping in Asia’s Emerging Giants. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet, this behavior has triggered little concern in the United States and Europe. Why? Two leading theories suggest that the recent spike in Indian and Chinese antidumping measures is temporary. Moreover, the balance of benefits under existing international legal rules continues to favor American and European producers. As a result, the United States and European Union have viewed attempts to reform global antidumping laws as against their interests.

This Article challenges this conventional wisdom. It argues that India and China’s antidumping regimes pose a larger long-term threat to the global trade regime than is commonly believed. Through novel empirical tests of the two leading theories, I demonstrate why China and India’s recent increase in antidumping protectionism is not temporary and not destined to level off. Instead, as more industries discover the benefits of antidumping laws and as China takes a more aggressive retaliatory stance against its trading partners, both countries’ use of antidumping sanctions will likely continue to increase. To guard against this increased protectionism, this Article argues that World Trade Organization members should reverse their opposition to reforming global antidumping rules and instead enact proposals that place greater restrictions on antidumping laws. It highlights why the present moment is an opportune time for reform, but notes that the window for reform is likely to close as China and India acquire increased economic strength.

David Sloss Responds to Carlos Vázquez

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

I appreciate Professor Vázquez’s thoughtful response to my article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. Professor Vázquez is a brilliant scholar whose many writings on self-executing treaties have made a valuable and enduring contribution to the literature. As he acknowledges, he and I agree on many issues related to the self-execution debate. In this brief reply, I will focus on one area of disagreement: the correct interpretation of Chief Justice Marshall’s opinion in Foster v. Neilson, decided in 1829.

Marshall stated clearly in Foster that Article 8 of the 1819 treaty with Spain (the “Florida treaty”) required legislative implementation. What was the rationale supporting that conclusion? Professor Vázquez contends that Marshall applied the “intent-based approach” in Foster. Under that approach, the distinction between self-executing and non-self-executing treaties turns entirely on a treaty interpretation analysis. In contrast, I contend that Marshall applied the “two-step approach” in Foster. Marshall’s conclusion rested partly on a treaty interpretation analysis (step one), and partly on an unarticulated assumption about the constitutional allocation of authority to dispose of property belonging to the United States (step two). (more…)

A Response to David Sloss by Carlos Vázquez

by Harvard International Law Journal

[Carlos Vázquez, Professor of Law, Georgetown Law Center responds to David Sloss, Executing Foster v. Neilson:The Two-Step Approach to Analyzing Self-Executing Treaties. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties. In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic. But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson. Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster. I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends.

The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation. Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do. This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation. This, Professor Sloss argues, is entirely a matter of U.S domestic law, not a matter of treaty interpretation. Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent. Professor Sloss notes that treaties seldom address the question of which domestic officials – legislative, executive, or judicial – are responsible for enforcing the treaty. Instead, treaty parties almost always leave that question to the domestic law of the states-parties. (more…)

Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties by David Sloss

by Harvard International Law Journal

[ David Sloss, Professor of Law and Director of the Center for Global Law and Policy, Santa Clara University School of Law, describes his recently published article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create. (more…)

Kevin Jon Heller Responds to Professors Darryl Robinson and Carsten Stahn

by Harvard International Law Journal

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris. (more…)

A Response to Kevin Jon Heller by Carsten Stahn

by Harvard International Law Journal

[Carsten Stahn responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium. 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. He is inter alia editor of ‘The International Criminal Court and Complementarity: From Theory to Practice’, Cambridge University Press, 2011. ]

One Step Forward, Two Steps Back? – Second thoughts on a ‘sentence-based’ theory of complementarity

I am delighted to comment on Kevin Heller’s thought-provoking essay. I have been following his scholarship for a number of years. It is a great honor to engage with this challenging topic on ‘Opinio Juris’. His scholarship stands out for his obvious originality and critical engagement with policy dilemmas of ICC practice. This piece is no exception. I have no doubt that it will give rise to significant debate and might even divide scholars and practitioners engaged in the complementarity debate. I share certain hesitations regarding the central claim of the article. In my view, the argument that the ICC should focus ‘exclusively on sentencing’ when determining whether ‘ordinary’ crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability. (more…)

A Comment on Kevin Jon Heller’s Piece by Darryl Robinson

by Harvard International Law Journal

[Darryl Robinson, Assistant Professor, Faculty of Law, Queen’s University, responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

In Defence of the “Same Conduct” Test for Admissibility

Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion on complementarity (regarding when the ICC should defer to national proceedings over a case). The article has two main features. The first is a convincing critique of approaches to admissibility that would focus on the charges brought at the national level (for example, whether the state charged using international definitions or ‘ordinary’ offences). The second is a proposal to replace such approaches with one focused on the sentence.

I examine Kevin’s main arguments in more detail elsewhere (Three Theories of Complementarity). I agree with Kevin’s critiques of approaches to admissibility that focus only on the charges. However, I argue that that an exclusively sentence-based approach also raises some quite serious difficulties, including inter alia that comparing a particular sentence to international ‘averages’ is not sufficiently subtle to evaluate national proceedings. I therefore suggest a third option, a process-based approach. A process-based approach can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process. I think that Kevin’s work offers some very important insights about the limited role of charges and the potentially significant role of sentences, which should be incorporated into any theory of complementarity.

In this posting, I want to focus on one narrow issue raised in A Sentence-Based Theory and in other recent thoughtful scholarship. Kevin and others have raised important concerns about the “same conduct” test, which is the test employed by ICC chambers to determine if a state is proceeding with the same “case”. Because this question is very current in scholarship and in the blogosphere, it is timely and valuable to examine it here. While I partially agree with the concern, I will try to demonstrate that the problem is actually much narrower than it is widely perceived. (more…)

A Sentence-Based Theory of Complementarity by Kevin Jon Heller

by Harvard International Law Journal

[ Kevin Jon Heller, Senior Lecturer, Melbourne Law School, describes his recently published article, A Sentence-Based Theory of Complementarity. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.]

Article 17 of the Rome Statute prohibits the International Criminal Court (“ICC”) from pre-empting a national prosecution of an act that qualifies as a war crime, crime against humanity, or act of genocide unless the State is “unwilling or unable genuinely to carry out” that prosecution itself. Scholars have long debated to what extent Article 17 permits states to prosecute international crimes as ordinary crimes. Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions guard against unwillingness determinations and better promote the Rome system of justice.

This Article challenges both theses, demonstrating that the best reading of the Rome Statute is that states are permitted to prosecute international crimes as ordinary crimes and that discouraging states from prosecuting international crimes as ordinary crimes is counterproductive, because national prosecutions of ordinary crimes are far more likely to succeed than national prosecutions of international crimes. This Article then defends an alternative theory of complementarity that focuses exclusively on sentence. It addresses how the Court should distinguish between acceptable and unacceptable national prosecutions of ordinary crimes. It argues that the traditional complementary heuristic, which limits states to prosecuting “serious” ordinary crimes that are based on the same conduct the ICC is investigating, is inadequate and should be replaced by a heuristic in which any national prosecution of an ordinary crime satisfies the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC. This Article also addresses the most serious objection to a sentence-based complementarity heuristic: namely, that prosecutions for ordinary crimes fail to capture the greater expressive value of international crimes. The Article concludes by discussing less radical alternatives to the sentence-based complementarity heuristic and expresses the hope that, because of increased national capacity to prosecute international crimes as international crimes, such a heuristic may eventually be unnecessary.