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?

[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.

[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.

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.

[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.

[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.

[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.

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.

[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.

[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.

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.

[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.

[CarrieLyn Donigan Guymon is Adjunct Professor at Golden Gate University School of Law]

I would like to thank Opinio Juris and the staff of VJIL for providing this forum to discuss my recent article, The Best Tool for the Job:  The U.S. Campaign to Freeze Assets of Proliferators and their Supporters.
I started the article in the waning months of the Bush administration, but thus far the Obama administration appears to agree with my thesis that the past administration’s practice of freezing the assets of proliferators and their supporters is one worth perpetuating.  Between June 2005, when President Bush signed Executive Order 13,382 (the authority for imposing the asset freeze and related measures), and January 2009, when he left office, 135 entities and individuals were designated for these sanctions.  The Obama administration has already made a significant number of additional designations under E.O. 13,382.
This is actually a pretty sparing use of a very broad authority granted by the International Emergency Economic Powers Act, or IEEPA.  President Clinton was the first to use IEEPA in a more targeted way, against terrorist organizations and their members versus countries and their citizens.  President Bush went one step further by targeting not only terrorists, but also those who aid or abet terrorists or terrorism.  Bush then replicated that pattern of addressing support—particularly financial support—with respect to WMD proliferators and proliferation.  While terrorism and proliferation are undeniably grave threats to the United States, they are not a perfect fit for the authority envisioned by Congress when it passed IEEPA.  Congress intended IEEPA to be used by the President to address rare and brief emergencies, not such enduring issues on the U.S. agenda as terrorism and the proliferation of WMD.
The Bush administration attempted to make multilateral its unilateral asset freeze sanctions via the U.N. Security Council.  Resolutions directed at North Korea’s and Iran’s nuclear and weapons programs resemble E.O. 13,382 in targeting for asset freeze sanctions not only the proliferators themselves, but those who provide support (financial or otherwise) for proliferation or are owned or controlled by proliferators.  Resolutions 1718 (directed at North Korea) and 1737, 1747 and 1803 (all directed at Iran) have been implemented by the United States using E.O. 13,382.  In the case of Iran, the U.S. often justifies its designations of entities and individuals under E.O. 13,382 based on their presence on Security Council lists (or their relation to those on those lists).  And the U.S. also advocates the addition to the Security Council’s lists of entities already designated by the U.S. under the E.O.  With the private sector’s voluntary shunning of entities designated by the U.S., there is an argument that multilateral designation is almost a fait accompli.
This sanctions strategy toward proliferation has met with criticism both for doing too little and for going too far.  Many would prefer harsher sanctions on Iran in particular.  Others worry that freezing assets and blacklisting individuals and entities in this way denies those designated their rights to due process.
These sanctions actually strike the correct balance.  And attempting to make them multilateral also makes sense—the United States cannot go it alone when confronting the threat of proliferation.  The U.S. taking a stand that it will not allow its financial system to be accessed by proliferators, while asking others to do likewise, is the right thing—and the best thing—to do.  Legal challenges to the same approach with respect to terrorism—surveyed extensively in the article—have been unsuccessful.  Due process is not seriously infringed by targeted sanctions and it cannot be absolute in the face of the grave threat posed by proliferation.  While it is troubling that the national emergencies presented by terrorism and proliferation seem unlikely to ever be declared over, judicious use of the broad authority under IEEPA assuages that concern.

I begin by thanking Ryszard Piotrowicz and Jean Allain for agreeing to take on the somewhat delicate task of commenting on my critique of James Hathaway’s article.  I am sure they will not be offended by my expressing sincere regret that Professor Hathaway himself declined to participate in this symposium.

Neither respondent challenges (or seriously interrogates) my central conclusions: (i) Hathaway has misrepresented the nature and scope of the legal regime around both slavery and trafficking and, in relation to the latter, severely underestimated its impact and potential; (ii) his proposal for an alternative system of protection based on the international legal prohibition on slavery is highly problematic, based on an outdated understanding of the relevant structures, and likely unworkable; (iii) there is no evidence available to support his allegation that powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; (iv) there is no evidence available to support his contention that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the plight of asylum seekers and refugees; and, (v) the proposed ‘quagmire’ of human trafficking is a fallacy.  To suggest that efforts to stamp out trafficking are in opposition to core human rights goals is to misunderstand, completely, both the nature of the phenomenon and the central place of human rights in any effective and credible response.

Both respondents nevertheless raise questions on several aspects of my critique. The following counter-response is provided with an accompanying observation that the issues raised do not call into question any of the conclusions listed above.  Ryszard Piotrowicz opines that trafficking may be best approached as a tort and a crime rather than as a human rights violation.  Certainly at the national level, this will often be the preferred approach, not just for trafficking, but also for many other human rights violations for which criminal or civil law may be invoked including discrimination and torture.  When it comes to righting wrongs, a functioning justice system will almost always offer superior odds to its international or regional equivalent.  That conclusion does not negate a central place for international law, including international human rights law, in providing impetus, authority (including legal justification) and structure to an effective national response.  International law also furnishes the foundation upon which the critical secondary rules of responsibility can be identified and applied.  In the present context, such rules affirm a range of obligations on States – not just to protect, support and provide remedies to victims, but also to investigate and prosecute trafficking cases with due diligence; to act against public sector complicity in trafficking; to cooperate with other States; and to prevent future trafficking.

As a result of his involvement in the drafting of UNHCR’s Guidelines on the issue, Piotrowicz is well-placed to warn of the limits of international refugee law for those who have been trafficked.  He is indeed correct that subsidiary/complementary protection will generally be of most relevance to trafficked persons.  As I noted, the very modest advances that have taken place are ultimately as constrained as international refugee law itself and will likely only permit a small fraction of individuals moved into exploitation across national borders to secure the protection they need (845).  In the end, this does not detract from the finding that developments in international law around trafficking do not appear to have further damaged an already deeply compromised international system for protection of refugees.

Regretfully, Jean Allain’s response does not address the issue of trafficking, rather focusing on one sub-aspect of my critique: the definition of slavery in international law.  I am happy to have provided Dr. Allain with the opportunity to canvass his recent, extensive and admirable scholarship in this area.  As my article makes clear, the much-overdue release of the travaux preparatoires to the Slavery Conventions has provided a new and important dimension to the question of what is slavery.  The decision of the Australian High Court in R v. Tang (which I also cite) represents another step forward in clarifying the parameters of slavery in contemporary international law.  We are indeed on the cusp of a new era.

It is with a considerable measure of gentleness (and perhaps a dash of scholarly pride) that Allain excuses Hathaway’s manipulation of the legal definition of slavery on the basis of the latter’s lack of access to the travaux preparatoires.  I disagree completely.  The debate over the substantive content of the international legal norm around slavery did not begin with the travaux preparatoires and will likely not end with them.  My principle objection (strongly buttressed by, but ultimately not reliant on, the travaux preparatoires) was to Hathaway’s uncritical adoption of an understanding of slavery that did not even match the language of the universally accepted international legal definition.  I also objected to his failure to take account of recent developments that were a matter of public record.  These included advances within international criminal law on the closely related issue of enslavement: advances that affirmed, independently of the travaux preparatoires, the application of the relevant prohibition to both de jure and de facto slavery and that provide clear warning against the kind of popular, expansionist conception of slavery espoused by Hathaway and increasingly favored by crusading legal scholars, politicians, social campaigners and the mass media.

International law is burdened with an unedifying record when it comes to dealing with private exploitation.  Amongst those of us working (literally) in the field, there is widespread agreement that forced labor, forced and otherwise exploitative prostitution, child sexual exploitation, coerced marriage and debt bondage are certainly not going away and are quite probably getting much worse.  The international community is struggling to deal with new waves and even new forms of profiteering.  Viewed from that perspective, the requirements of an international legal framework are clear: an unambiguous definition of the problem; an equally sharp identification of core State obligations; and effective means of monitoring and encouraging compliance.  After decades of wasteful prevarication not particularly challenged by the academy, that goal may finally be in sight.  Certainly the Trafficking Protocol, and its associated legal developments which I have documented, provide justification for cautious optimism. I respectfully submit that at this important juncture, the appropriate task of the international legal practitioner is a relatively modest one: our job is to document, to analyze and to explain the law, including its weaknesses, to those who, (in the words of d’Aspremont, note: 228) are engaged in actually using it.  We do our profession and our most important constituents a favor by remembering that, at the end of the day, it is the law that properly directs the legal scholarship, and not the other way around.

[Ryszard Piotrowicz is a Professor of Law at Aberystwyth University]

I would like to make three points in relation to the articles by Prof. Hathaway and Dr Gallagher.
First, It seems to me that Dr Gallagher effectively refutes the basic argument of Prof. Hathaway, that the developments in trafficking in human beings (THB) have served to distract attention from what is asserted to be the much wider problem of slavery.  I do not wish to comment on the core issue of that debate but rather to focus on two further matters which are nevertheless relevant to our understanding of THB, and which do come up in these articles.
Second, I think that it is not always helpful to insist on THB as a human rights violation. THB is fundamentally a private enterprise, i.e., a tort and a crime.  In the absence of State involvement or complicity, where is the human rights violation?  Of course, the State has obligations towards victims but these really occur after the person has been trafficked (e.g., obligations towards appropriate care and support) or else to prevent future trafficking (possible international protection obligations).  It is not the THB itself, but the aftermath, that gives rise to State obligations for the rights of victims.  Of course I accept that the State has an obligation to ensure rights for all those within its jurisdiction – which it does through passing appropriate legislation which is then enforced.  Dr Gallagher says there are plenty of human rights instruments that address States’ obligations regarding private exploitation (823).  I agree, but the actual THB is not normally a breach.  That is why I prefer the term “human rights approach” to THB – this can acknowledge the human rights dimension of THB.  I think there is an inherent good in calling THB what it is: a serious crime.  That does not demean the victims; nor does it deny their human rights (where relevant).  Dr gallagher says that the public/private split has been eroded and that it is not credible for States to deny an obligation to deal with THB just because it is a private activity (824-5).  I agree, but this is because States have an international obligation to tackle THB.  The THB nevertheless is not the fault of the State (usually) and, to that extent, one can maintain the public/private distinction.  I nevertheless agree with Dr Gallagher’s point that desirable changes have been effected, even if human rights law has not always been the medium of change (847).
Third, specifically on refugee status for victims of THB – it is clear to me that the law of international protection is very important in assessing States’ obligations with regard to THB.  But this will be more with regard to subsidiary/complementary protection than refugee status. At page 844, Dr Gallagher focuses on refugee status while acknowledging that it may have limits.  In actual fact, normally the only way potential victims of THB will qualify is if they are members of a particular social group.  This is possible but I don’t think it will occur very often.  In particular, it might apply to those in the foreign State who fear return to their home State because of risk of re-trafficking (and who therefore might argue that their status as victims of THB, which is an immutable fact, like being left-handed, or blue-eyed) is something they have in common with others beyond the mere fear of persecution, hence making them MPSG.  So the risk will be with regard to future danger, of course.  How many people will be in a foreign country, who have never been trafficked before, but fear being trafficked if they go home? Surely the real risk is that of re-trafficking?  In this sense, even if Prof. Hathaway is right, that anti-THB law has been used to promote border control laws in destination countries, that does not matter here from a protection perspective because those needing international protection have, despite apparent legal obstacles, ended up in a foreign country.  They have probably been trafficked there.  The border controls have not stopped this.  All that said, the more likely obligation of the destination State will probably be subsidiary/complementary protection.

[Dr. Jean Allain is a Reader in Public International Law at the School of Law, Queen’s University Belfast and author of The Slavery Conventions: The Travaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (2008) and “The Definition of Slavery in International Law” 52 Howard Law Journal 239 (2009)]

There is nothing like a ‘response’ piece to give readers a stark sense of the open schisms with regard to an issue of law. Anne Gallagher’s piece in the most recent edition of the Virginia Journal of International Law does just that, taking on James Hathaway’s overarching critique of the legal regime of human trafficking.  I would invite readers to consider both pieces, as they are well-written and researched, giving a sense of the meta-narrative of contemporary legal thought on human trafficking by two leading experts.  For my part, I wish to consider but one basis of the Gallagher’s critique of Hathaway’s piece: the definition of slavery in international law.
Gallagher takes issue with the definition of slavery being put forward by Hathaway as “‘any form of dealing with human beings leading to the forced exploitation of their labor’, including ‘the exercise of any or all of the powers attaching to the right of ownership over a person’”; stating that the first elements (re: “any form of dealing…their labor”) “remains unsupported in international law.”  I accept that conclusion, but it should be recognised that when Hathaway drafted his piece, he was not privy to the material on which Gallagher stakes her claim that the “expansionist interpretation, given wide currency through a series of UN reports, has now been rejected.”  That material is my 2008 The Slavery Conventions.

In April 2008, I was contacted by the Australian Human Rights and Equality Commission (HREOC), which was looking to intervene in a case, and asked if I might assist.  I provided them with a copy of the galley proofs of my book, as The Slavery Conventions, which had yet to be published.  In May, the online newspaper, The Australian stated that, “Brett Walker SC, the counsel for HREOC, quotes a book by a certain Monsieur Allain.”  Holding up the work in question, he says: ‘I understand I have the only copy in the country.’”   Published in June, the book is cited in the August 2008 case, before the Australian High Court, The Queen v. Tang which sets out for the first time in an authoritative manner that the definition of slavery in international law (re: ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’) applies in cases of both de jure but also de facto slavery.  It was in reading to The Queen v. Tang that I came across a citation for Hathaway’s piece.  As a result, Hathaway would not have been aware of The Slavery Conventions when drafting his piece.

I believe The Queen v. Tang delivered in August 2008 is a watershed for a legal consideration of slavery with the Hathaway and Gallagher pieces standing on either side of the divide.   Before August 2008, the most authoritative pronouncement on the definition of slavery in international law comes from the United Nations in the guise of the work of David Weissbrodt and Anti-Slavery International. It is this stream which Hathaway correctly follows. I might add here that I do not think Hathaway would be offended if I were to mention that I contacted him in November to congratulate him on his piece saying that it was one of the few works I had read which took the issue of slavery seriously.

And yet the Australian jurisprudence marks a shift in the understanding of slavery as defined by the 1926 Slavery Convention.  In 2007, the Court of Appeal of the Supreme Court of Victoria, Australia noted:

The understanding of the scope of the definition of slavery stated by Jean Allain is at odds with that of David Weissbrodt in his paper commissioned by the Office of the United Nations High Commissioner for Human Rights.  Weissbrodt concluded that the definition was intended to include the broader range of practices that had been addressed by the Temporary Slavery Commission of 1924, including debt bondage, serfdom, practices involving restrictions of liberty and personal control analogous to slavery, practices such as acquisition of women and girls in the guise of payment of dowry, and so forth.  It was not limited to chattel slavery, but required examination of the degree of restriction and control exercised over the person, rather than concentration on the criterion of ownership.

In that case, the Supreme Court of Victoria concluded that, “in final analysis, it is unnecessary to resolve the dispute between Allain and Weissbrodt.”  However, in August 2008, with The Queen v. Tang, the High Court of Australia did, in fact, resolve that dispute; using my research from the League of Nations Archives to demonstrate that the definition as set out the 1926 Slavery Convention has not been expanded to include lesser servitudes, but is to be read in such a manner as to include both situations of legal ownership of a person (which would bring to mind the Trans-Atlantic Slave Trade, but see the contemporary finding of chattel slavery in the 2008 Mani v. Niger case before the ECOWAS Community Court of Justice – and my case note in the April 2009 edition of American Journal of International Law); but also de facto slavery.  To understand what this distinctions means, consider the analogy to the drug dealer: he cannot make a claim before a judge against the theft of his heroin – he does not ‘own’ the heroin in law— but can still be found to exercises powers of ownership over his drugs, such as possession, if brought before a court of law.  In the same manner, a person may not – in law – own another human being, but she could exercise powers attaching to ownership – such as buying or selling a person in a de facto manner.

One must understand that where issues of slavery, human exploitation, and the law are concerned, there has been very little serious scholarship – both Hathaway and Gallagher – bring some much needed rigour to the area.  But much work still needs to be done and the field is evolving quickly.  For instance, the interchangeable use of the terms ‘practices similar to slavery’ and ‘slavery-like practice’ is – in law – wrong.  The first of these is a term of law, the ‘practices similar to slavery’ being those items set out in the 1956 Supplementary Convention as servitudes to be suppressed (i.e., debt bondage, serfdom, servile marriage and child exploitation); whereas ‘slavery-like practice’ is a term of art, coined at the height of the decolonisation process to apply to apartheid and colonialism but which never found its way into the corpus of international law.  In counter-distinction, the difference between ‘practices similar to slavery’ found in the 1956 Supplementary Convention and ‘servitude’ as found in international human rights instruments (see the ICCPR, the ECHR, the ACHR), should be understood as a false one; one brought on by the unwillingness of the negotiating States of the 1956 Convention to commit to ending servitude forthwith despite the Universal Declaration call to do exactly that (see my forthcoming “On the Curious Disappearance of Human Servitude from General International Law”, 11 Journal of the History of International Law 25 (2009)).  I expect the terrain of human exploitation in law to be re-drawn over the next few years in ways that it has not been throughout the twentieth century.

Hathaway’s consideration is state of the art at its time; while Gallagher’s critique, some six to eight months later, bringing into the equation an emerging narrative which takes slavery – in law – back to first principles and seeks to build an understanding of slavery in the shadow of the human right of an accused to know the charges against him. That narrative has yet to run its course and may challenge some of the elements of Gallagher’s own piece in the same way she challenges Hathaway’s work.  Beyond the Hathaway and Gallagher pieces, contemporary legal issues of slavery, trafficking and human exploitation have been left, on the whole, to a less than rigorous consideration of the law.  In so doing it raises the question of the regime of human rights as the best place to deal with such issues; as the twentieth century has demonstrated the failure to adequately deal with the prohibition against slavery as a human right.  Whereas the establishment of the International Criminal Court and the UN and European trafficking conventions, all products of the twenty-first century, have already done more within a criminal law paradigm to advance the jurisprudence and the agenda of anti-slavery and the fight against human exploitation than anything seen under the auspice of international human rights law.

[Dr. Anne T. Gallagher is the Head of Operations at Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and the former UN Adviser on Trafficking]

My response to James Hathaway, written with the benefit of close involvement in the development of the new legal framework, as well as in its implementation at the national level in over forty countries, provides an alternative and a sharply differing perspective on the global battle to combat trafficking.  In considering each of Hathaway’s major concerns in turn, and discrediting the assumptions and authorities on which they are based, I identify a number of serious flaws in both interpretation and application.

First: The scope of the new legal regime has been misrepresented and its impact and potential underestimated.  The international legal definition of trafficking covers not the claimed three percent but a considerably greater proportion of those who have been exploited for private profit – both within and outside their own country.  Despite its serious weaknesses, the Protocol has served very well as both a framework and impetus for the generation of a comprehensive range of rights-based international, regional, and national norms and standards that articulate, with much greater clarity and precision than was ever previously possible, the obligations of states in relation both to ending impunity for traffickers and providing support, protection, and justice for those who have been exploited.  It is not helpful for the human rights lawyer or advocate to be aggrieved about the fact that these changes were generated outside the formal human rights system.  Nor is it productive to sound dire, ex post-facto warnings about the dangers of consorting with the enemy.  The international human rights system amply demonstrated, over many years that it was incapable of doing anything serious about trafficking and related forms of exploitation.  That system has now been given new and better tools with which to work. The real test of its effectiveness and relevance will lie in the way it responds to this challenge.

Second: As an alternative legal framework for dealing with exploitation of individuals for profit, the prohibition on slavery is not without its own serious problems and limitations. The definition of slavery in international law (certainly much narrower than claimed), the substantive content of the relevant norm, and its application to modern manifestations of exploitation remain contested and, in legal terms, relatively untested.  Accordingly, it is not likely that the prohibition could readily apply to more than a modest portion of those who require protection from contemporary forms of exploitation, including debt bondage and forced labor.  Critiques of the application and monitoring of the prohibition on slavery within the international human rights system serve to confirm the inadequacy of this prohibition as a sole or even primary framework of protection.

Third: There is no evidence available to support Hathaway’s two central contentions in relation to refugees: (i) that the powerful countries of destination were able to trick the rest of the international community into accepting a covert extension of border controls; and (ii) that the development of an international legal response to trafficking and migrant smuggling has resulted in a worsening of the already dire plight of asylum seekers and refugees.  In marked contrast, from a purely legal perspective, the response has served to reinforce the principle that asylum claims are to be considered on their substantive merits and not on the basis of the applicant’s means of entry.  It has also affirmed the applicability of international refugee law to asylum seekers who are smuggled and/or trafficked, and expanded the potential basis for the determination of refugee status to include those whose flight was caused by the threat or fact of trafficking.  The likelihood that stronger border controls against smugglers and traffickers will make it even harder for asylum seekers to meet the technical requirements of international refugee law serves to highlight the failings and inadequacies of the international system for refugee protection.  To propose, however, that states refrain from dealing with organized, profit-driven migrant smuggling (and trafficking) because doing so will inevitably make access to asylum more difficult is to confuse the problem and to obscure its most obvious solutions.

Finally, to suggest that efforts to stamp out trafficking are in opposition to core human rights goals is to misunderstand, completely, both the nature of the phenomenon and the central place of human rights in any effective and credible response.  Far from damaging human rights, the issue of trafficking has provided unprecedented opportunities for the renewal and growth of a legal system that, until recently, has offered only platitudes and the illusion of legal protection to the millions of individuals whose life and labor is exploited for private profit.

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles and two essays recently published by VJIL in Vol. 49:4, available here.
Today, Dr. Anne T. Gallagher, Head of Operations of Equity International, Technical Director of Asia Regional Trafficking in Persons Project, and former UN Adviser on Trafficking, will discuss her article Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway.

On Tuesday, Professor CarrieLyn Donigan Guymon, Adjunct Professor, Golden Gate University School of Law, will discuss her article The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters.
On Wednesday, Professor Lisa J. Laplante, Visiting Assistant Professor, Marquette University Law School, will discuss her article Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes.

On Thursday, Professor Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, will discuss his essay The Inevitable Globalization of Constitutional Law.

On Friday, Nigel Purvis, President of Climate Advisers, will discuss his essay The Case for Climate Protection Authority.