A Response to Daniel Bodansky

by Nigel Purvis

Professor Bodansky is absolutely right that the success of U.S. climate change policy depends on whether our leaders can align domestic and international efforts.  Unless the United States does its fair share, other nations will not do theirs.  And yet a purely international solution – untethered to domestic political realities – has little chance of securing U.S. participation.  Bodansky’s own solution is a two-tier target – an initial level of effort that the United States pursues unilaterally, without pre-condition, and a second, more ambitious, mitigation target that the United States commits to only if other nations are also taking equitable action.  This makes perfect sense and, as Bodansky notes, it’s the posture Europe is taking now with respect to its post-2012 climate program.  Given America’s role in the world and its capacity to help solve the climate crisis, we should not hide behind China.  Rather, we must lead by taking an initial, cost-effective step forward.  Yet, given the costs and competitiveness concerns involved in transforming our economy, U.S. policy also needs to create incentives for other major emitting nations to act.  Holding out the promise of more ambitious U.S. emissions mitigation, coupled with new financial assistance for clean growth and climate adaptation, would lead China, India and other key countries toward sound climate policies.  As Bodansky notes, merely offering to turn the content of a new U.S. cap-and-trade law into a legally binding international commitment would not create a real negotiating dynamic at the global level.  Why should emerging economies move aggressively beyond existing policies when the United States would implement its cap-and-trade law regardless of what they do?  Kyoto created a free-rider problem by exempting developing nations.  A post-Kyoto agreement that asked for action by developing nations but gives them no incentives to make a deal could prove just as unhelpful and ineffective.

The real question is how best to implement Bodansky’s two-tier target approach.  There are several options.  The President could adopt the approach as a matter of executive branch policy.  Alternatively, the Senate or Congress could pass a non-binding resolution outlining the two-stage plan. Either of these would be a major improvement over the current situation – where neither the President nor Congress have been specific about what the United States needs in a post-Kyoto climate pact or about what carrots has to offer others.  Yet, neither a presidential policy nor congressional resolutions would give other nations confidence that the United States would actually follow through as neither would have the force of law, and neither would create a clear path for congressional approval of climate pacts.  Given the Senate’s treaty practice, in fact, developing nations would surely wonder whether the United States would actually join a new climate agreement – even if all U.S. conditions were met.

In contrast, the Congress could build both mitigation targets (the initial first unconditional step and the second conditional promise) into the heart of the cap-and-trade legislation it is considering right now.  By enacting into law both targets simultaneously and by delegating to the President the authority to certify to Congress when international conditions have been met, the United States would send a strong and clear signal to other nations about the sincerity of the U.S. offer and the benefits of meeting U.S. demands.  Congress too could have a voice in judging whether international conditions have been met.  Congress could vote on the question, using streamlined procedural mechanisms outlined in the cap-and-trade legislation itself to ensure a speedy and fair process.  If a majority of both houses agreed with the President that the conditions contained in the initial cap-and-trade legislation were met, for example, then the more stringent U.S. emissions target would take effect.  This sensible, collaborative process that would use domestic statutes and domestic procedural mechanisms to shape global climate negotiations is exactly what I mean by Climate Protection Authority.  Climate Protection Authority would have the force of law, and would give U.S. negotiators the credibility and leverage they need to lead global negotiations.  Climate Protection Authority, in short, is the legal mechanism we need to give life to Bodansy’s sensible two-tier emissions target approach.  More generally, Climate Protection Authority would allow the United States to negotiate agreements worth joining and join the agreements it negotiates.  Now wouldn’t that be a nice change?

How to Achieve US Ratification of a New Climate Agreement: A Response to Nigel Purvis by Daniel Bodansky

by Daniel Bodansky

[Daniel Bodansky is a Professor at the University of Georgia Law School]

In the international climate change negotiations, new ideas are a scarce commodity.  After almost twenty years of intensive work, most of the low-hanging fruit have already been plucked, and progress tends to be more incremental – a refinement to the possible types of emissions targets here, a new variation on a financing scheme there – these are the focus of attention.

So Nigel Purvis’s proposal to enact US Climate Protection Authority legislation is no small achievement.  It represents a bold idea to break one of the central impasses in the international climate change process: securing US ratification of a successor to Kyoto.  The proposal has two parts.  First, the Obama administration would work with Congress to define the elements of an acceptable international deal, through adoption of fast-track authority.  Second, the resulting international agreement would be submitted for legislative approval by Congress, as a Congressional-Executive agreement, rather than as an Article II treaty requiring advice and consent by 2/3 of the Senate.  Both parts have the same function – to maximize the odds of US ratification – but they operate independently.

Few would disagree about the desirability, in principle, of seeking more Congressional buy-in to the US negotiating position internationally.  But doing so would involve broadening the current debate about US climate legislation from a debate focussing primarily on domestic policy (in the form of the Waxman-Markey bill) to one that also included international policy.  With the Waxman-Markey train leaving the station, there is little appetite at the moment for injecting new issues into the debate.  And even when Congress decides to focus more on international policy, it’s unclear whether it would be willing to adopt a pre-commitment strategy by providing fast-track authority, given the political volatility of the climate change issue.

With respect to the second part of Purvis’s proposal, the idea of a Congressional-Executive agreement has much to recommend it.  As Oona Hathaway has shown, Congressional-Executive agreements have considerable historical precedent.  They have greater democratic legitimacy than Senate-approved treaties.  And they make it less likely that important international agreements will be held hostage to the vagaries of Senate procedures, as has been the case with the Law of the Sea Convention.  Indeed, John Yoo – who recently came out against the idea in a New York Times op-ed – made many of these arguments himself in support of Congressional-Executive agreements in an earlier incarnation.

That said, the choice between a Congressional-Executive agreement and a treaty ultimately depends on a political calculation: Would it be easier to get 60 (or perhaps only 50) senators to approve a Congressional-Executive agreement than to get 67 senators to approve a treaty?  Purvis assumes that 60 votes are easier to obtain than 67, but this isn’t necessarily true, since some Senators might oppose a Congressional-Executive agreement simply in order to preserve the Senate’s special prerogatives in the treaty approval process.  Indeed, presenting a climate agreement for Congressional rather than Senate approval could give some senators a convenient procedural excuse to hide behind, rather than having to oppose the agreement on substantive grounds.

Regardless of whether Purvis’s specific proposal is politically persuasive, it highlights one of the central challenges in the climate change negotiations, namely to align US domestic climate policy with its international negotiating stance.  The failure to do so spelled doom for the Kyoto Protocol. The Clinton Administration’s assumption that it could negotiate a treaty internationally that would drive action domestically proved to be a colossal miscalculation. Having been burned by Kyoto, many have now veered to the opposite extreme, concluding that the US should not agree to anything internationally that goes even an inch beyond what Congress has already pre-approved domestically.  This approach would certainly make an international agreement as cost-free as possible to the United States. (Indeed, if an international agreement simply mirrored existing domestic climate legislation, then it might even be adopted as a sole Executive agreement, like the US-Canada Air Quality Agreement, rather than as a Congressional-Executive agreement.)  But such an approach would eviscerate US negotiating leverage. If the United States took the stance that it would agree internationally only to what it had already decided to do domestically, it would lack any quo to offer in return for the quid of action by China or other major economies.

To my mind, the only sensible solution is for the United States to take a two-track approach (like the EU), articulating what it is willing to do domestically on its own, and how much more it would be willing to do in return for action by other big emitters such as China.  A decision to do a certain amount unilaterally would show much needed leadership.   An offer to do more in exchange for reciprocal action by others would give US negotiators much needed leverage.  And if these positions had buy-in from Congress in advance, through the enactment of Climate Protection Authority, as Purvis proposes, that would give the US much needed credibility.  Those three ingredients – leadership, leverage and credibility – may not be sufficient to produce a successful outcome in Copenhagen.  But they are certainly necessary.

The Case for Climate Protection Authority

by Nigel Purvis

[Nigel Purvis is the President of Climate Advisers]

Climate change presents a clear and growth threat to the United States and the world.  America now has an important opportunity to lead.  Congress is moving toward enacting comprehensive climate legislation.  The House Energy and Commerce committee recently approved a “cap-and-trade” bill (Waxman-Markey) that would reduce U.S. emissions 17% below 2005 levels by 2020.  This bill is expected to pass the House this summer with Senate debate anticipated this fall.  Internationally, the United States is negotiating a new global climate agreement for the period beyond 2012, when the emissions mitigation commitments in the 1997 Kyoto Protocol expire.  President Obama and other global leaders hope to conclude this new agreement late this year in Copenhagen, Denmark, at the next meeting of the parties to the U.N. Framework Convention on Climate Change.

The fundamental challenge facing the United States on climate policy is making these two separate tracks come together.  U.S. domestic legislation must contribute to a genuine global solution but global arrangements must also fit or alter domestic political realities.  New domestic legislation designed to bring these two legal processes together, Climate Protection Authority, is essential.  Here is how it would work.

First, in consultation with Congress, the president would decide that future climate and energy agreements are to be approved by the United States by statute rather than as treaties. Statutes require a majority in both houses of Congress, whereas treaties require two-thirds of only the Senate. Federal courts have repeatedly upheld the constitutionality of bicameral statutory approval of international pacts – commonly called congressional-executive agreements. In fact, the United States enters into far more international agreements this way than by treaty, including some arms control agreements and environmental pacts and almost all trade deals.

Second, Congress should spell out in an international title in cap-and-trade legislation the conditions necessary for U.S. participation in new climate and energy agreements. For example, it should describe the role we envision for China, India and other major developing countries.  It should also make plain how, if U.S. conditions are met, the United States will help developing nations adapt to climate change and acquire clean energy technologies to enable them to pursue low carbon economic growth.

Third, cap-and-trade legislation should create a clear procedural pathway for new climate and energy agreements that meet these congressional preconditions. Good agreements should come into effect for the United States either without further congressional review or, more likely, pursuant to the streamlined approval process Congress has used for most trade agreements.  Trade Promotion Authority usually commits Congress to review new trade deals within ninety days with no holds, filibusters or amendments, and only a simple majority of both houses is required to approve these pacts.

The legal basis for Climate Protection Authority is clear and explained in the latest issue of the Virginia Journal of International Law.  The policy reasons for this approach are compelling.

Like trade and arms control agreements, energy and climate pacts are lengthy to negotiate, hard to undo and negotiated in successive “rounds.” This means that both ends of Pennsylvania Avenue need to work together upfront to make the agreements come out right and have in place procedures to ensure approval of agreements the United States actually negotiates.  And like trade talks, climate negotiations resemble the constant tinkering of domestic legislation far more than the long-lived treaties that the founders envisioned.  Statutory approval of climate change congressional-executive agreements would acknowledge this reality.

The Constitution gives a special role to the House on economic issues. Major energy legislation and negotiation will affect every sector of the economy and should come before the full Congress, not just the Senate.

Other nations would be more likely to meet our terms, for they have come to distrust our treaty-making process. These countries are reluctant to make politically difficult concessions only to see the United States stay out of the agreement in the end. By creating a workable approval process for agreements that meet enumerated statutory conditions, the path to U.S. participation would become clear and U.S. negotiators would be able to extract needed concessions.

It’s unrealistic to think Congress has the time and attention to take up domestic legislation and an international agreement separately (in whatever order). It is even more unrealistic to assume that an international treaty would be consistent with U.S. legislation and congressional wishes unless Congress has created in advance a process that helps ensure this alignment.  In twenty years of climate diplomacy neither Congress nor the Senate has given the President of the World a clear blueprint for U.S. global leadership on climate change.  The 1997 Byrd-Hagel resolution merely advised President Clinton to avoid signing what would become the Kyoto Protocol and more recent calls by the Senate for U.S. leadership have been general and vague.  America needs a well-defined plan for climate cooperation and that plan should have the force of law.

President Obama and Congress together have an opportunity to overhaul U.S. energy policy and build a durable global framework for protecting the climate. Given the challenges involved, they would be wise to create new Climate Protection Authority that moves the domestic and international transactions in tandem now.

A Response to Robert Ahdieh and David Fontana

by Mark Tushnet

I appreciate the comments from Professors Fontana and Ahdieh, and don’t have much to quarrel about with them.  They offer useful correctives or supplements to my argument.

On the question of the scope of the argument – that is, the nations where we can expect convergence in constitutional law – my essay notes one important exception, and Professor Fontana raises a question about another.  My essay excepts resource-extracting nations from its scope, largely because such nations do not need to compete with respect to attracting significant numbers of people with high levels of human capital.  Professor Fontana’s question about China raises, I think, similar issues.  It’s not that China is a firmly authoritarian nation, although of course it is, but rather two other things. First, it is simply so large that it might be possible for it to develop the requisite numbers of people with high levels of human capital on its own, without competing for them across borders – and its authoritarian nature might make it possible for it to retain them once trained.  Second, the Chinese market is so large that outsiders might be willing to suppress their preferences for fundamental rights in exchange for the profits to be gained by operating in China (or, alternatively, international businesses could supply people with high levels of human capital for work in China who come from the less rights-concerned tail of the distribution of preferences among such people).

On another question Professor Fontana raises, I would note my view that the expansion of programs of international exchange at the student level has been quite dramatic – not merely the perhaps special case of the Erasmus program within the European Union, but more generally.  The presence of exchange students in classrooms around the world is another of the bottom-up processes that I think likely to affect convergence.

Professor Ahdieh’s discussion of bilateral investment treaties is an extremely important corrective to my argument, and I thank him for it.  Dispute-resolution mechanisms in BITs can indeed substitute for domestic constitutional protection of investment capital.  The question, I think, is how much they can substitute.  There’s a tradeoff between BITs and domestic constitutional law, with respect to the degree of control domestic decision-makers have over implementing institutions.  For domestic constitutional law to “work” in this area, the implementing institutions have to be independent of the nation’s political class – but the political class is not going to want them to be “too” independent.  Yet, outside investors will not be happy with an implementing institution that isn’t independent “enough.”  The converse tradeoff occurs with BITs.  The domestic political class will have to give up something when it agrees to arbitration under a BIT, but it won’t want to give up too much.  I think it’s an important enterprise – and I suspect that someone has already done some work on it – to determine the relative tradeoffs, or, put another way, the rate of substitution between BITs and domestic constitutional law.   Professor Ahdieh’s brief comment raises all these questions, and I would hope to take them into account in any revisit to my essay’s topic.

A Response to Mark Tushnet by David Fontana

by David Fontana

[David Fontana is a Professor at George Washington University School of Law]

Mark Tushnet has written another interesting paper, yet again combining his background in American and comparative constitutional law.  Tushnet argues—with some qualifications—that there are major structural pressures leading to the globalization of a genre of provisions of domestic constitutional law.  Tushnet’s paper is shorter, so there are many claims that can only be discussed by necessity in less detail.  But I want to use my space to raise some methodological questions and requests for clarification, and then raise some substantive responses to his article.

First, let me discuss my questions about methodology and calls for clarification.  Before being asked to evaluate Tushnet’s claims, I would want to know more clearly precisely which countries he is referencing.  He talks about “nations that compete internationally for investment and human capital, with classes of lawyers able to assert some autonomous pressure on a nation’s government.”  Does that include China, which surely meets the first criteria, and maybe less so the second criteria?  Does that include Colombia, which is better on the second criteria and maybe less good on the first criteria? This call for clarification is related to a note about methodology.  There are actually indices of protections of rights, and so it is possible to look into whether Tushnet’s claims about the globalization of constitutional law have actually played out in practice, and if not what caveats he might add to this analysis.

Second, let me discuss my substantive comments.  It strikes me that many of the pressures leading to the globalization of constitutional law that Tushnet discusses might just result in a quite narrow globalization.  As Tushnet briefly notes at a few points in his Article, the elites that prefer the protection of rights might prefer protection of the rights that global elites find most relevant.  The evidence that those involved in international business care about the rights of others (either for its own sake or because of a slippery slope concern that once rights are violated as relates to others they might be violated for international business) is not that strong.

This limited nature of globalization referenced above might be taken even farther.  Only certain schools might be subject to the globalizing pressures that Tushnet describes—maybe the top few elite law schools in other countries, and likewise here (the globalization of law faculty, students and classes is much less pronounced at schools outside of a handful of the top law schools in the United States).  Only certain lawyers might be subject to globalizing pressures.  It is true that the small town family lawyer in Nebraska might have more cases that involve non-American law, but all the evidence suggests that they deal with non-American law still only very, very rarely.  And only certain courts might be subject to the globalizing pressures that Tushnet describes.  It might affect the Constitutional Court in a country, but not other courts (since maybe only the Constitutional Court will have lawyers who practiced in big cities, went to super-elite law schools, and only that court will deal with major overseas interests).

Finally, there are many ways in which the globalization that Tushnet describes, however broad in terms of the substance or reach of the constitutional provisions being enforced, might be much more limited than we might imagine because preferences are not fixed.  An interest in the protection of rights and in constitutional principles is post-materialist.  As Ronald Ingelhart and others have discussed, our interest in post-materialist political issues is a product of a certain sense of economic security that has pervaded the developed world (Inglehart is really talking about global political life after 1970).  When countries hit hard economic times, the structural dynamics that led to globalization might cut against it.  Global elites care less about protecting the rights of others, or non-business rights, when their very existence is at stake.  In other words, much of constitutional law involves luxury goods.  And with us facing a global recession, there might be to reason to believe there will be at least some inevitable retrenchment of the globalization of constitutional law.

A Response to Mark Tushnet by Robert Ahdieh

by Robert Ahdieh

[Robert Ahdieh is a Professor at Emory Law School]

At the outset, my thanks to the editors of the Virginia Journal of International Law for inviting me to contribute to this symposium, to my friends at Opinio Juris for hosting it, and to Professor Tushnet for his valuable contribution to ongoing debates about constitutionalism, globalization, and their interrelationship.

Needless to say, Professor Tushnet’s essay posits a bold claim: that we are moving inexorably toward a globalized constitutional law. I am deeply sympathetic to this claim – not merely as a positive matter, but in normative terms as well. Bracketing these sympathies for the moment, however, I propose to devote this post to a critique of the first of the pair of “bottom-up processes” of inevitable globalization that Professor Tushnet – borrowing from Professor David Law – highlights in the essay.

That first claim posits that national-level competition for investment capital will drive nations toward heightened constitutional protection of property rights, including by way of independent courts. I concur with Professor Tushnet about the underlying market dynamic at work. Global competition for capital – a competition in which the United States itself is increasingly a competitor – is quite fierce. Mechanisms of competitive advantage, including in the supply of desired institutions, would consequently seem to be a high priority for national policymakers.

If recent years are any indication, however, national advantage in such competition has not primarily been sought by way of constitutional law and independent courts. Rather, it has been sought by way of international law and independent arbitral tribunals.

I refer, of course, to the much-discussed rise of bi-national investment treaties (“BITs”) over the last several decades. In the 1970s, fewer than a dozen BITs were entered into each year. By the 1980s, that number had doubled, generating a total of 700 BITs by 1994.

As a matter of substantive law, BITs are designed to provide foreign investors with just the kind of protection against threatened expropriation that Professor Tushnet suggests can be expected to drive substantive changes in national-level constitutional norms. By way of process, meanwhile, BITs empower investors to bring non-espoused claims directly against the host state – an innovation that remains the exception rather than the rule in international law, yet would seem to offer a ready alternative to investors’ reliance on the national court system. (In their earliest incarnation, of course, such investor protections – including against “denials of justice” – were designed precisely to allow foreign nationals to avoid national courts.)

National competition for investment capital, then, can be – and has been – pursued with no need to engage in messy efforts at constitutional reform, let alone the extension of constitutional protections to domestic constituencies.

The BIT route may, of course, be inferior to national-level constitutional reform in any given case. Given the particular dynamic in a given country, for example, BITs’ differential protection of foreign and domestic actors and their seeming whiff of imperialism might prove politically problematic.

But a more important caveat might be the following: Some (including myself) have identified a species of “constitutional” harmonization in the gradual emergence of substantive and procedural norms at the international level, by way of the decisions of transnational institutions, including the international arbitral tribunals charged to adjudicate investor-state disputes arising under BITs.

This would seem to echo what Professor Tushnet casts as a “top-down” process of the globalization of constitutional law. Given its genesis in the competition for investment capital he identifies as a “bottom-up” process, on the other hand, it might be better understood as a hybrid dynamic of sorts.

In fact, one might wonder whether much of the globalization of constitutional law does not take place at the confluence of top-down and bottom-up processes, such that any sharp demarcation between them becomes difficult to sustain.

At a minimum, however, the widespread reliance on BITs noted above would suggest that constitutional globalization in the form of national-level constitutional reform and the emergence of independent courts may not be entirely inevitable.

The Inevitable Globalization of Constitutional Law

by Mark Tushnet

[Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School]

The argument for “The Inevitable Globalization of Constitutional Law” identifies two general processes – top-down and bottom-up – pushing toward convergence of basic constitutional principles in a rather large number of jurisdictions, those that participate in world-wide markets requiring significant cross-border flows of investment and human capital.  We can talk about which jurisdictions are included and excluded, and why, if that’s the way the conversation develops, but for this initial post I’ll confine myself to describing the mechanisms of convergence.

The top-down processes have received the most attention in the literature.  These include the development of networks of judges who exchange ideas and become familiar with the way constitutional law is done in other jurisdictions, and the influence on domestic law of transnational “adjudicatory” bodies such as the European Court of Human Rights and the various United Nations committees dealing with human rights.  In addition, many transnational NGOs advocate the adoption of universal rules.

Bottom-up processes are less familiar but perhaps more important.  David Law has brought to our attention some effects of economic globalization on constitutional law.  He emphasizes the interests of transnational investment capital and of people with relatively high levels of human capital who migrate, temporarily or permanently, to maximize the returns on their human capital.  As the so-called Washington consensus showed, transnational investment capital has a strong interest in constitutional protection of property rights, to insure returns against the risk of expropriation.  And, independent courts created to protect property rights may have spill-over effects on the protection of other basic rights.

People with relatively high levels of human capital tend to have a preference for basic rights like privacy and free speech, at least for themselves.  They may be reluctant to relocate to jurisdictions where they will not have those rights.  To attract such capital, regimes will offer constitutional protection for those rights.  It may be difficult to “segregate” constitutional protections so that they are provided only to those with high levels of human capital and not to the population generally.  And, it may be that the preferences for constitutional protection are not entirely self-interested:  People with high level of human capital may prefer to live in jurisdictions where everyone has freedom of speech, for example.

In addition, in public law as in private law transactional lawyers have an interest in reducing the costs of transactions, many of which must be developed with an eye to domestic constitutional law, by reducing the differences among the law applicable in different jurisdictions.  Convergence in constitutional law is an attractive method of cost-reduction, though of course not the only one.

Finally, I should note that “convergence” or globalization doesn’t mean that the specific versions of constitutional principles will be identical across jurisdictions.  There may be family resemblances among the principles, or – as discussions of proportionality as a “universal” rule of law suggest – approaches to constitutional interpretation.  Such resemblances may be enough to reduce the learning costs for transactional lawyers sufficiently, and to enable people with relatively high levels of human capital to move comfortably from one to another jurisdiction.

Of course there are lots of qualifications that need to be inserted to flesh out the argument and identify its precise scope, but I hope that this is enough to give a general sense of why I think that the globalization of constitutional law is inevitable.

A Response to Ronald Slye

by Lisa Laplante

As an eminent scholar on the topic of amnesties, I appreciate Ron Slye’s thoughtful response to my analysis of the Barrios Altos case.  His critiques are certainly ones that I anticipated when offering my broad reading of the Inter-American Court of Human Rights’s landmark ruling.  As a regional body, the Court can only issue judgments that bind member States.  Thus, we will need to wait and see how the Barrios Altos jurisprudence influences decisions in other regional and international systems, and whether these bodies also begin to challenge the legality of amnesties.  Ultimately, even in the event that an international consensus develops rejecting amnesties (which preclude any type of criminal investigation or prosecution), it is unlikely that every human rights violator in the world will be criminally prosecuted.  Indeed, in transitioning countries similar to those mentioned by Slye (Rwanda, Cambodia, Nazi Germany), it will rarely be possible nor feasible to bring all alleged human rights violators to trial.  Instead, as Slye suggests, we may witness countries seeking to address mass atrocities relying on mechanisms like prosecutorial discretion, plea bargaining, sentence reduction and pardons to provide a more nuance –and local– approach to accountability.  Undoubtedly, these options might result in more leniency for “foot soldiers” and greater focus on civilian and military leaders who hold the greatest responsibility for setting policies of state violence and repression –a trend already underway in international, hybrid and national tribunals.  However, these criminal law mechanisms at least do not force societies to confront the all or nothing option of trials v. total forgetting for the sake of political expediency.  Instead, a flexible criminal justice process emerges that upholds the primacy of accountability, important for building the rule of law and meeting the justice demands of victims-survivors.  On this last point, I believe that Slye and I concur.

A Response to Lisa Laplante by Ronald Slye

by Ronald Slye

[Ronald Slye is the Director of International and Comparative Law Programs and Professor at Seattle University School of Law]
Lisa Laplante provides those of us interested in international criminal law, and more specifically the legitimacy of utilizing amnesties during a period of societal transition, with a valuable service by pointing us to, and carefully parsing, the Barrios Altos decision of Inter-American Court of Human Rights.  It is a decision that, as she rightly states has not received as much attention as it deserves.  While I am sympathetic to her claim that this decision stands for the position that all amnesties are illegitimate and that there is thus an obligation to prosecute, I think the question is much more open and fluid.  There is, first, the minor and more technical point that no matter how well reasoned the decision, it is only one decision of one regional court that has no precedential force on any other international body.  Thus, even if one interprets it the way that Ms. Laplante does, its force is mostly persuasive, or at best evidence of an emerging rule of customary international law on the legality of amnesties.  The more important point for me is that I think we risk oversimplifying the issue by reducing it to criminal trials versus amnesty.  Ms. Laplante does not do this – and in fact is clearly aware of the many different types of mechanisms that fall under the rubric of amnesty.  The question is really one of accountability, and more particularly what is the minimum required to address adequately gross violations of human rights.  It seems to me that some forms of amnesty, selectively used, may be justified in some situations.  Surely international law cannot, and should not, require criminal prosecutions in all cases.  The enormity of the task such a rule would create in the context of the Rwanda genocide (though one could point to the Nazi Holocaust or the Cambodian atrocities to make the same point) must give us pause.  On the other extreme, of course, it is clear that blanket amnesties are illegal – and the jurisprudence of the Inter-American human rights system has been at the forefront of converting this assertion into a principle of international law.  There is, however, a lot of grey area in between.  It is the area in which one also finds other less controversial legal mechanisms such as pardons, prosecutorial discretion, sentencing, and statutes of limitations.  I do not think that international law clearly speaks to whether some of the amnesties that fall within this middle area are legal or not.  Of course, one might even ask whether international law should answer this question, or whether instead it is better to leave some discretion to communities to develop their own forms of accountability for mass atrocities.  My view is that international law must require some form of accountability for mass atrocities, but what form that accountability may take must allow for more than traditional criminal prosecutions.

Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes

by Lisa Laplante

[Lisa J. Laplante is Visiting Assistant Professor at Marquette University Law School]

Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights.  The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities.  Latin America exemplified this trend in the 1980s, while also popularizing truth commissions.  The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties.   Recognition of individual rights chipped away at absolute state sovereignty by building recognition of the state duty to investigate, prosecute, and punish those responsible for serious violations of human rights.  In addition, the end of the Cold War saw a new reliance on international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945.  Jurisprudence emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states.

Currently, scholars now acknowledge that to be legitimate, amnesties must conform to legal norms thus creating a standard of ‘qualified amnesties’ for customary and treaty law prohibiting bars to prosecution for war crimes, enumerated treaty crimes, and crimes against humanity.  Yet, this discourse suggests that it is still possible for nations to resort to amnesties for other serious human rights violations during political transitions.  Yet, by merging the fields of human rights law and international criminal law, one can arguably resolve this current debate by finding amnesty in transitional justice settings to be unlawful.  Specifically, the Barrios Altos case, a seminal decision issued by the Inter-American Court of Human Rights (IACHR) in 2001, declared that amnesty laws promulgated in 1995 by former Peruvian president Alberto Fujimori were contrary to the American Convention on Human Rights, and thus international law.  Recent scholarship has ignored this decision, or otherwise interpreted it overly narrowly, despite its potentially sweeping impact on the field of transitional justice.   Yet, I argue for a broader reading based on a close reading of both the Judgment on the Merits (and its concurring opinions, the IACtHR’s own Interpretation of the Judgment, subsequent opinions issued by the IACtHR, as well as and state practice relying on Barrios Altos.  These sources suggest that the Barrios Altos ruling stands for the principle that all amnesties are contrary to international law and not just self-amnesties.   Thus, a state cannot satisfy the duty to investigate through other types of noncriminal investigations such as truth commissions and moreover, they cannot provide immunity for serious human rights violations which do not rise to the level of crimes against humanity, treaty crimes and war crimes.  Arguably, with this more expansive reading, it is possible that the truth v. justice dilemma may no longer exist: instead, criminal justice through trials must be done.

A Response to Paul Dean

by CarrieLyn Guymon

I share Paul’s hope that my article will prompt further consideration of the use of IEEPA sanctions to address the problem of proliferation.  The article aims to demonstrate that the way E.O. 13,382 has been used so far is unlikely to prompt any successful legal challenge, but that does not mean the issue should not give us all pause.  Since the first use of IEEPA by President Carter, succeeding administrations have gradually expanded its use.  Yet not one of the institutions empowered to constrain the executive’s powers has shown the inclination to do so.
The U.S. Congress, as author of IEEPA, is best equipped to put the brakes on this expansion of presidential power.  Congress could pass a joint resolution to terminate the fourteen-year-old national “emergency” declared by the President related to the proliferation of WMD, perhaps on the basis that such an ongoing state of affairs cannot properly be classified as a temporary emergency.  Congress has shown neither the inclination to do so, nor the possibility of having the veto-proof supermajority necessary to make it happen against the wishes of the President.  Congress could also amend IEEPA to give itself more control over the exercise of presidential discretion in imposing sanctions.  But no such bill has been proposed.  Instead, Congress appears to be one of the biggest fans of the executive use of IEEPA to declare emergencies and impose sanctions and seems to wish it were used even more often.
As discussed in the article, U.S. courts also provide no meaningful check on the use of IEEPA-authorized sanctions programs like E.O. 13,382.  Under every possible legal theory for challenge, judges find an easy out for judicial deference to the executive.  For example, courts have concluded that those who support terrorism receive all the process that is due when their assets are frozen without prior notice or an opportunity to be heard because the government interest at stake is too great and prior notice would allow the funds to be spirited away to support terrorism.  The interest in preventing proliferation—like stopping terrorism—is simply too compelling for courts to question.  European Courts have likewise deferred to sanctioning authorities, due to the primacy of international legal obligations (like Security Council actions taken under Chapter VII) over domestic law within the E.U.
Thus, the law as it currently stands allows the executive to impose economic sanctions on foreign persons deemed to be supporting proliferation without prior notice given the grave threat to national security posed by proliferation.  The law, however, could be changed.  Neither President Obama nor the current Congress nor the courts shows any indication of changing the law.   Excessive use or abuse of this broad grant of authority in the future could certainly shift the tides.

A Response to CarrieLyn Guymon by Paul B. Dean

by Paul Dean

[Paul B. Dean is Attorney-Adviser, Office of the Legal Adviser, at the U.S. Department of State]

Thanks to Opinio Juris and VJIL for hosting this discussion and
thanks of course to Professor Guymon for raising this interesting topic.  I’m happy to provide what I hope will be a constructive response.  I
must emphasize that any views expressed herein are my own and not
necessarily those of the State Department or the U.S. Government.  Professor Guymon touches on a host of interesting topics in her article
and blog post, including whether the problem of WMD proliferation can be
appropriately addressed by targeted “emergency” sanctions based on IEEPA
authorities, how best to “multilateralize” these targeted sanctions, and
whether the U.S. asset blocking program under E.O. 13382 raises Due
Process concerns. 

Rather than attempt a critique, I’d simply like to highlight some
aspects of these topics that I think could benefit from further thought.  Professor Guymon concludes her post by noting that the executive’s
”judicious use” of E.O. 13382 adequately addresses any concern that an
IEEPA national emergency might continue indefinitely.  I would like to
see this developed a bit more.  For example, while “judicious use” might
ameliorate some policy concerns, I wonder if Professor Guymon is
introducing a legal argument that the use of IEEPA authority in such
circumstances might be dependent on someone (the executive? the
Congress? the courts?) concluding that its use was “judicious.” 

Professor Guymon also argues that “Due Process is not seriously
infringed by targeted sanctions and it cannot be absolute in the face of
the grave threat posed by proliferation.”  I’d like to see that
developed a bit more too.  In her article, Professor Guymon points out
that the reality of the nonproliferation challenge is that – in order to
use E.O. 13382 (and similar E.O.s) effectively – the executive must
sometimes block assets without prior notice and rely on classified
information that might not be available to the blocked entity in
subsequent litigation.  Further, entities sanctioned under these
authorities are almost uniformly non-citizens.  This presents
interesting questions regarding the applicability and scope of
Constitutional Due Process protections.  In other words, what process
(if any) is due when the U.S. has classified information indicating that
Foreign Company X is facilitating the transfer of missile technology to
a country of proliferation concern, such as Iran?  The cases arising under E.O. 13224 – which allows for asset blocking in
the terrorism context – may be instructive, and courts usually accord a
high degree of deference to agencies in asset blocking cases.  It may
also be useful to study the EU’s experience with similar targeted
sanctions programs. 

I’d also like to hear others’ views on these subjects, which will likely
remain in sharp focus as the U.S. develops flexible tools to combat
increasingly transnational, non-governmental proliferation patterns, as
typified in the black market nuclear network of A.Q. Khan. 

I think Professor Guymon’s article provides a very useful starting point
for an important and interesting discussion (certainly important for
everyone; interesting, at least, to me) about our legal tools for
addressing the problem of WMD proliferation.