A Response to Katherine Stone

by Alvaro Santos

I would like to thank Kathy Stone for commenting on my Article and agreeing to participate in this symposium. She has sharply characterized the main arguments of my paper and made two very helpful criticisms. Both of these are great prods for future work. Let me respond to each of these suggestions in turn.

Stone is right that I devoted most of my attention analyzing Doing Business’ main agenda, which I called substantive flexibility: increasing employers’ ability to fire, hire, and set working conditions, thereby decreasing employers overall labor costs. But let me clarify that I do not think labor flexibility can be reduced to an argument about labor costs. Indeed, my typology aimed to situate the DB project in the broader spectrum of what labor flexibility may include and to show just how narrow the DB objectives are.

DB claims that more flexibility (for the employer) leads to an adaptable firm. But I argue that this concept of adaptability has little to do with organizational flexibility, related to firms’ ability to respond to market conditions by changing their mode of production and innovating in their business model. One can imagine an employer who enjoys considerable flexibility in the employment relationship, such as a maquiladora plant, and nevertheless operates under a rigid production process of command-and-control, where workers repeatedly deploy a very limited set of skills.

I argued in the paper that overall labor-cost reductions are not necessarily conducive to organizational flexibility. In my visits to firms and factories in Mexico, I observed that it was generally the big, leading firms (which fully participate in the global economy) that had experimented with newer models of business organization like total quality management. They often enjoyed more functional flexibility, as their employees were trained and able to perform multiple tasks. Interestingly, these firms remain in what I called the employee-friendly labor regime, where enforcement rates and labor costs are higher than in the de facto deregulated employer-friendly regime….

A Response to Alvaro Santos by Katherine V. Stone

by Katherine V. Stone

[Katherine V. Stone is a Professor at UCLA School of Law]

In Labor Flexibility, Legal Reform and Economic Development, Alvaro Santos presents an analysis and critique of the World Bank’s Doing Business indicators for labor regulation.  Those indicators have been used to promote an agenda of legal reform dedicated to eliminating worker protections and rights throughout the developing world.  Santos presents a multi-pronged critique directed at the central tenet of the DB project – its assertion that labor market flexibility is the elixir of economic growth.

Santos does an excellent job of decentering and problematizing the concept of flexibility as it is used by the DB project.  For example, he usefully distinguishes three types of flexibility-formal, substantive, and organizational-and shows that the DB claim in the labor area is about substantive flexibility, not formal or organizational flexibility.  Hence the indicators applaud the rigid at-will rule of the common law countries and decry the flexible just-cause standards found in many civil law regimes.  This move alone is valuable because it delinks the DB labor project from the rhetorically powerful but vastly oversimplified claims of the legal origins theoretical framework that underlines the DB project, in which economic progress is equated with common law regimes (seen as “flexible”) and economic backwardness is associated with civil law regimes (seen as “rigid”).

Even more useful is Santos’ demonstration that by focusing only on formal written law, the DB indicators badly mischaracterize the labor law regimes they purport to describe.  Many factors make the law “in action” depart from the “law on the books,” as legal sociologists have long known.  Santos uses examples from Mexico to show that the DB’s characterization of Mexican labor law as rigid ignores several important aspects of the operation of the law in Mexico-the ability of collective bargaining and labor courts to modify seemingly rigid terms of employment, gaps in enforcement of labor rights that insert de facto flexibility into otherwise rigid labor laws, and informal norms that have developed in some sectors that deviate from the formal legal rules.  As one example, he shows the many ways Mexican employers have developed to hire employees on fixed term contracts even when such forms of employment are formally prohibited.

Santos’ most interesting claim is that there can exist multiple regimes of labor regulation exhibiting different combinations of flexibility and employment protection within a single country.  He uses Mexico as an example, and argues that there are three regimes present-an employee-friendly regime (i.e., “rigid” in the DB typology) in the manufacturing and energy sectors, an employer-friendly regime (i.e., DB-flexible) in the restaurant, transportation, communications, and professional sector, and an unregulated free-for-all in the informal sector of retail commerce, street vendors, and domestic services.  He points out a tension in the DB project in that it advocates relaxing the protections for the employee-friendly sector, but increasing regulation in the informal sector.  He also shows that wages have declined substantially in the employee-friendly sector, contradicting claims that employment protection generates high and sticky labor costs.

In these and other respects, Santos illuminates the ideological nature of the seemingly neutral Doing Business labor indicators and shows how those indicators neither reflect an empirically accurate portrayal of the labor regimes they purport to describe nor provide an analytically sound program for reform.  But perhaps his most important contribution is to show that by foregrounding flexibility and relying on seemingly neutral indicators, the DB reform agenda obscures its true objective-to alter the distribution of power in the workplace.  As he says, when flexibility is enhanced for employers, it is diminished for employees.

Santos’ argument would be strengthened if he delved more deeply into the issue of flexibility.   I have two suggestions in this regard.  First, Santos is too willing to trace the DB project’s focus on flexibility as an issue of labor costs.  Like the DB project he criticizes, Santos considers flexibility in terms of employers’ ability to hire and fire, and to adjust labor time, compensation and working conditions unilaterally.  He claims that the DB project does not focus on the role of flexibility in firms’ capacity to innovate.  While this may be true of the narrow DB project, the larger debate over flexibility in labor law has been animated by arguments that firms need more operational and organizational freedom than current labor laws provide.  Operational flexibility is advocated not only to enable firms to engage in short term cost reduction measures, but also to enable them to deploy new production methods and promote innovative product development.  Thus, it is not a sufficient critique of the DB indicators that some of the programs they advocate do not, in fact, result in short term cost reduction.  I believe that, using Santos’ typology, flexibility’s goal is not only substantive flexibility, but organizational flexibility as well. If Santos were to consider flexibility from this larger perspective, he might draw somewhat different conclusions about how to formulate the relationship between flexibility, protection, and economic growth.

My second suggestion is that in discussing labor cost flexibility, Santos should say something about the distribution of risk.  Santos contends that when employers have more flexibility over hiring, firing, compensation, and working hours, employees have less.  Yet his analysis shows how labor market regimes allocate not “flexibility” in the abstract, but actual risks and rewards.  From this perspective, the opposite of labor cost flexibility is not so much rigidity, as the DB project suggests, but rather it is vulnerability.  Hence, Santos’ argument shows that by enhancing employers’ flexibility in the area of labor costs, the DB proposals heighten employees’ vulnerability.

Labor Flexibility, Legal Reform, and Economic Development

by Alvaro Santos

[Alvaro Santos is an Associate Professor at Georgetown University Law Center]

The current global financial crisis has provoked intense criticism of the regulatory framework for financial markets. Financial market flexibility, once considered the key to successful financial institutions and economic growth, has now come under intense scrutiny. In contrast, labor market flexibility is still promoted by scholars and international policymakers as an essential part of the recipe for economic development. I argue that the predominant understanding of labor flexibility is misguided and needs to be revised. To illustrate why, I undertake a critical examination of labor flexibility as developed by a leading World Bank project, called “Doing Business.” I argue that the Doing Business project mischaracterizes countries’ labor regulations by failing to consider the full range of legal sources, surveying mostly the law on the books, and remaining blind to the realities of lack of enforcement and rampant economic informality.

More importantly, Doing Business promotes a binary understanding of flexibility that fails to capture the relational character of legal entitlements. Proposed legal reforms in the direction of “flexibilization” can therefore be both costly and ineffective. As an alternative, I develop a framework which, incorporating insights from comparative law and legal theory, proceeds in two steps. First, my framework undertakes a doctrinal assessment of the respective rights, duties, and privileges of employers and employees in the labor market, and asks whose flexibility is enhanced. Second, my framework pays attention to the link between the formal and informal economic sectors. Using the examples of the United States and Mexico, I illustrate how this new framework can lead to a better sense of the relationship between labor law and a country’s economy, and how this framework can be used as a better map for regulatory reforms.

A Response to John Knox by Marc Limon

by Marc Limon

[Marc Limon is Counsellor of the Mission of the Government of the Maldives to the United Nations, in Geneva, Switzerland]

As Professor Knox recognises in his paper, international human rights law is essentially concerned with the relationship between an individual and his or her own State.  This makes it difficult to usefully leverage human rights law in the context of global climate change, beyond noting that, irrespective of their level of responsibility for global warming, all States retain an obligation to protect the human rights of their citizens from its negative impacts and to do so in a way that is consistent with the full enjoyment of human rights.

For most developed countries in the Human Rights Council, that should be (and indeed, in their mind, is) the end of the matter. For them, conceding that climate change undermines a range of internationally protected human rights is fine, insofar as it serves as a reminder to developing countries that a) they should not use globalised phenomena like climate change as an excuse for backsliding on human rights, and b) countries which observe and respect human rights (especially civil and political rights) are inherently more resilient and adaptable to all crises-including climate change.

However, for most developing country delegations in the Human Rights Council, especially delegations of countries that are most vulnerable to the impacts of climate change, this traditionalist reading of human rights law is not the end of the matter.  These delegations argued, in various interventions during the March and June sessions of the Council, that it is fundamentally unfair, in the context of a globalised concern such as climate change, to suggest that relevant human rights obligations lie solely with the State wherein harm is suffered.  Rather, one must strike a balance between drawing attention to and clarifying human rights obligations applicable within vulnerable States on the one hand (i.e., domestic application), and drawing attention to and clarifying extraterritorial human rights obligations on the other-especially obligations applicable to those countries that bear the major responsibility for having caused climate change.  These countries argue, rightly, that to fail to strike such a balance would be to consign vulnerable States to an ultimately futile attempt to protect human rights in the face of a problem that they cannot control and that will, in the end, consume them.

The question, then, is whether it is possible to strike such a balance.  Can human rights obligations be applied extraterritorially, and can accountability permeate national borders? There is no doubt that attempts to answer and respond to such questions will be extremely difficult.  However, developing countries at the Human Rights Council have proposed a number of options.

One option, which Professor Knox rightly presents as the most practicable, is to strengthen jurisprudence around the concept of the “duty of international cooperation.”  Unfortunately, there are doubts as to what real impact this course of action would have on international climate change policy.  A second option is to build on the idea that while it may be the case that States have a primary responsibility to promote and protect human rights within their jurisdiction, other countries carry a concurrent obligation not to interfere with the enjoyment of human rights elsewhere.  For example, the Maldives State may be responsible for protecting the human rights of Maldivians, but other States also have a responsibility to ensure a permissive international environment.  The third option is to go against the logic presented in the OHCHR report and Professor Knox’s paper, by arguing that climate change impacts can indeed be conceived as human rights violations-with identifiable victims and perpetrators (even in a transnational context).  According to this view, the power to protect human rights in the face of climate change rests primarily with large emitting States-States which have undertaken legal commitments to reduce their emissions to “safe levels” (levels consistent with the preservation of the environment and consistent with the full enjoyment of human rights)-and thus these States must bear a responsibility for fulfilling human rights in vulnerable States.  If they renege on that responsibility, they are guilty of violating human rights and should be held accountable.

All three of these options were advocated during the dedicated panel debate on human rights and climate change that took place during the June 2009 session of the Human Rights Council. The question now facing the main sponsors of that debate, and of the Council’s earlier resolutions on human rights and climate change, is if and how these options should be further explored.

In the longer term, the difficulties posed by the application of human rights law to harm caused by climate change are indicative of a broader systemic tension between the traditional state-centric conceptualisation of human rights, and the realities of individual connectivity in the globalised world.  In the 21st Century, a given State no longer holds the sole power to shape the life of its citizens or to determine their welfare.  Rather, the phenomena which determine the degree to which an individual can enjoy the full range of human rights are increasingly international or extraterritorial in nature.  This tension is visible in a range of issues currently taking up the Human Rights Council’s time, such as the human rights implications of the global food crisis, or the human rights implications of the global financial crisis.  However, of these crises, climate change, with its global character and basis in unequal and even destructive power relationships, is perhaps the globalised challenge which most acutely draws attention to the need for a thorough reconceptualisation of a body of law developed in the post-War world of nation States and unassailed sovereignty.

Climate Change and Human Rights Law

by John Knox

[John H. Knox is a Professor at Wake Forest University School of Law]

My Essay tries to answer a simple question (simple to state, anyway):  What duties, if any, does human rights law place on states to address climate change?  At first, the answer may seem equally simple.  It may seem evident that climate change already violates human rights, including rights to life, health, and property.  As the Arctic warms, survival has become more difficult for the Inuit, for example, and shrinking glaciers endanger mountain communities that depend upon them for water.  If climate change continues unabated, the effect on human rights will grow in scope and severity.  To take the most dramatic example, rising sea levels will force millions of people to abandon their homes and, eventually, require the evacuation of small island states.  Since climate change threatens such massive interference with human rights, it may seem obvious that states must try to ameliorate its effects.

It is more difficult than it may first appear, however, to nail down whether and how climate change triggers obligations under human rights law.  For the most part, that law sets out vertical duties that states owe to their own people, not diagonal duties that they owe to residents of other countries.  There can be no doubt that states have vertical obligations to do what they can to protect their own people from the effects of climate change.  By themselves, however, those duties may not go far enough.  Because of our country’s wealth, size, and location, Americans are very unlikely to suffer harm from climate change as rapidly or drastically as residents of the Maldives, for example, one of the lowest-lying countries in the world.  At the same time, the Maldives cannot protect its citizens from climate change by itself.  Does human rights law impose obligations on the United States to help the Maldivians and others like them?  Are states’ duties under human rights law diagonal as well as vertical?

For the last two years, a group of small island states led by the Maldives has successfully pressed the UN Human Rights Council to consider the implications of climate change for human rights.  In response to a request by the Council, the Office of the High Commissioner for Human Rights (OHCHR) published a report in January 2009 concluding that climate change gives rise to obligations on states that extend not only to their own residents, but also to people living in other countries.  Not all states have accepted this conclusion, however, or its possible implications.

My Essay examines the connection between climate change and human rights law in light of the large and rapidly growing jurisprudence of human rights bodies on environmental rights.  The jurisprudence imposes strict procedural requirements on states, such as a duty to carry out environmental impact assessment, but it largely defers to states’ substantive decisions on environmental standards.  That approach makes sense in the context of the cases that have developed it, which have involved environmental costs and benefits felt within a single polity, which can decide for itself how to balance them.  The approach does not easily apply to harm such as that caused by climate change, however, whose causes and effects concern many different polities.

I argue that the solution is to look to the duty of international cooperation, which requires states to try to act as a single global polity to address the global threat of climate change.  By providing a basis for the application of the environmental human rights jurisprudence, this approach would allow states some flexibility as to the substance of their joint decisions, but only if they follow procedures designed to ensure full, well-informed participation by those most affected.  Moreover, the substance of decisions that result from such processes would not be entitled to complete deference: under no conditions could states allow climate change to destroy the human rights of the most vulnerable.

This issue continues to percolate through the UN human rights system.  In response to the OHCHR report, the Human Rights Council adopted a resolution in March, at its tenth session, encouraging its special rapporteurs and other special mandate-holders to consider climate change within their mandates.  At its next session, in June, the Council held a panel discussion on human rights and climate change, at which a surprisingly large number of governments made statements.  There seemed to be something close to a consensus among them that human rights law does have something to say about climate change.  What exactly that is will become clearer over time . . . although perhaps not quickly enough to help to avert the coming global disaster.

A Response to Mark Drumbl

by Alexander K.A. Greenawalt

Let me thank Mark Drumbl once again for taking the time to provide his thoughtful response to my Article.

As Mark and I agree on many points, I will focus on what appears to be the clearest point of difference between us:  our respective answers to the practical question of how the ICC should instantiate its complementarity principle.   Absent contrary guidance from the Security Council, I support ICC prosecutor Luis Moreno-Ocampo’s targeted insistence on conventional prosecutions for Kony and the remaining suspects for whom the ICC has issued warrants.  Mark, as I understand him, would instead have the ICC apply the “light touch” to complementarity that he has advanced in his book Atrocity, Punishment, and International Law.   The fact that I differ with Mark on this point is somewhat surprising given that (1) I believe that Mark has developed a compelling normative framework for evaluating state responses to mass atrocity, (2) I agree that his approach is defensible as a valid interpretation of the ICC’s statute, and (3) I believe that the prosecutor’s stated policy is uncompelling and even incoherent if viewed as a general normative framework for evaluating state responses to mass atrocity.  I nevertheless reluctantly endorse Moreno-Ocampo’s insistence on traditional prosecutions for the accused because I am skeptical of the ICC’s ability to safeguard its legitimacy while making the kinds of judgments that Mark’s approach demands.  In other words, my position hinges on distinguishing the specific institutional setting of the ICC from a general normative framework for transitional justice.

To elaborate on the source of my unease, I proceed from the realization that legal responses to mass atrocity often require compromise and sacrifice.  I am enough of a retributivist to acknowledge that there is something inherently tragic and regrettable in the prospect that a mass murderer like Joseph Kony will evade the punishment that is generally deemed appropriate-in Uganda and elsewhere-for offenses of the magnitude he has committed.  But I agree that other considerations-including the desire to end or prevent war, the interest in fostering societal reconciliation, and the difficulty of processing overwhelming numbers of perpetrators-can override individual desert-based considerations and justify the sorts of compromises that Uganda has explored.

I am skeptical, however, that the ICC can develop a judicially manageable framework that does justice to the complexity of the considerations that inform these compromises.  Because the ICC itself has targeted only a handful of LRA suspects, and thus does not preclude alternative measures for most perpetrators, the specific case for dropping the ICC warrants emphasizes that Kony’s personal participation is necessary to a peace agreement that will both save lives and facilitate the broader accountability scheme.  Is the ICC an appropriate venue to evaluate the merits of that argument?   Are the Court’s prosecutor and judges competent to assess the chances of Uganda apprehending Kony absent a peace agreement, or the probability that Kony will honor his side of the bargain?   How should the analysis balance the incommensurable goals of protecting human life and pursuing criminal accountability?   One irony of a more permissive complementarity test is that it requires adjudicating these difficult determinations through precisely the sort of conventional trial procedures that Mark would deemphasize for more traditional questions of criminal guilt and innocence.

Once the door to compromise has opened, moreover, there is no obvious stopping point. There may be situations where the best case scenario falls short of even Mark’s relatively deferential standards.   For example, deference to a dictator’s imposition of blanket amnesty paired with some minimal truth-telling process might be necessary to prevent imminent atrocities, even though the arrangement might fail some of Mark’s preferred criteria, such as those pertaining to good faith and democratic legitimacy.  Should the specific guidelines still constrain in that circumstance, or should the Court revert to a general choice-of-evils analysis?  To some degree, the ICC can protect itself against misjudgment by affording states ever broader deference to judge these matters by themselves, but doing so risks ignoring that the ICC exists in large part to impose limits on state discretion.

Otherwise, I agree with Mark that we should resist simplistic dichotomies between law and politics, both with respect to the ICC and otherwise.   I also agree with many of his more specific observations along these lines, several of which I make or at least hint at in my Article.  (I will say parenthetically, however, that I am not convinced the evidence of Ugandan control over the ICC is quite as strong as Mark suggests).  Part of my argument is that a more accurate account of the ICC’s political authority raises special problems for the Court given that the ICC’s standard justification-invoked repeatedly by its supporters, prosecutor, and judges-so emphatically rejects the idea of the ICC as a political actor.

I also appreciate and agree with Mark’s observations about the Security Council.  In general, I am focused less on the Council’s de jure authority (which I acknowledge) than on the body’s ability to address the ICC’s legitimacy deficit.  If the complementarity determination exceeds the ICC’s own institutional abilities, then perhaps more active Council guidance should be welcomed rather than feared.

Many thanks again to the Virginia Journal of International Law and Opinio Juris for organizing what, for me at least, has been a stimulating and thought-provoking exchange.

A Response to Sasha Greenawalt by Mark A. Drumbl

by Mark Drumbl

[Mark A. Drumbl is a Professor at Washington and Lee University School of Law]

In Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, Professor Alexander Greenawalt strikes a cautionary note. He underscores that the ICC cannot on its own effectively serve transitional justice interests. It needs help. In the end, Sasha concludes that “the Ugandan peace process reveals the [ICC] to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders, including the very political actor – the UN Security Council – whose importance the Rome Statute was designed, in part, to diminish.”

I am broadly sympathetic to Sasha’s concerns; and in agreement with his analysis and of the important discursive space he creates within the field. However, at times I had difficulty discerning the thread of his argument. Other than generically suggesting that Security Council “guidance … may be desirable in a great number of cases,” I also hope that Sasha might provide more in the way of practical guidance regarding how the ICC should instantiate its complementarity principle, which animates several key portals of the Rome Statute, in particular admissibility (Article 17) and interests of justice (Article 53).

I think it important not to essentialize the Security Council as being all about politics. The Council can act in a quasi-judicial capacity, whether it comes to declaring an act as violative of Article 39 of the Charter, or deliberating on the kinds of forcible and non-forcible violations that might be apposite. Moreover, it is important not to overstate the ICC’s supposed independence from the Security Council. After all, the option of referral from the Security Council remains; as do Article 16 deferrals. Looking ahead, were a crime of aggression eventually to be defined in the Rome Statute, Security Council authorization foreseeably could be a prerequisite to the exercise of jurisdiction over this crime.

Nor is the ICC all about law. Whatever the intentions of the drafters of the Rome Statute, states like Uganda and the DRC have neatly managed the ICC, just like Rwanda has neatly managed the ICTR, to focus on the atrocities committed by rebel groups only (or in the case of Rwanda, of the Hutu génocidaires only). President Museveni does well at playing with the ICC, co-opting it, massaging it, shunning it, and integrating it into national life as a tool of domestic politics. And the ICC is willing to dance with him, even haltingly staccato. After all, without his political cooperation, there would be no prosecutions or, in the event any defendants are brought into custody in the Ugandan situation, limited ability to generate the requisite evidence to convict. Regardless of the etymology of the institutions (namely, whether created by international treaty or Security Council resolution), the role of their chief prosecutors is much more about politics than it is about law. Although Sasha is right that the ICC may involve legal actors implementing legal rules, I would add that in this process the ICC often acts as a political actor implementing policy. Furthermore, the ICC represents the zenith of liberal legalism as a response to terrible communal violence. In this regard, and to crudely paraphrase Cardozo, the ICC is a creative project, not a voyage of discovery.

Sasha is skeptical of the value of ex ante guidelines to clarify how complementarity might inform the admissibility of cases. He argues that guidelines are not useful. He needs to make a stronger case here. I have argued elsewhere, in a point that Sasha discusses, that a light touch to complementarity (as articulated through a qualified deference standard), would better serve overall justice interests. In any event, developing guidelines, even simply to frame a conversation, would promote transparency, dialogue, and some predictability. Each of these elements is relevant to the legitimacy of law or policy, though certainly excessive rigidity or adherence to faulty guidelines is undesirable. These guidelines could equally apply whether the Security Council or the ICC is the entity tasked with making the admissibility determination. A broader analytic heuristic that accords greater deference to the local might expand our vocabulary in assessing the merit of post-conflict accountability. Currently, our focus is narrow and hews closely to the singularity of trial justice. Instead, we should push for a much broader lexicon of transitional justice.

Sasha delicately hints at this near the end of his Article, but I think there is more to the expansion of international criminal law than simply the inexorable épanoiussement of substantive law. International criminal lawyers have a vested bureaucratic interest in the growth of the field. Expansion marketizes our skills and expertise, which are now rendered a necessary element of every post-conflict transition everywhere. We lawyers have become indispensible. Not an indispensible nation in a Clintonian sense, but certainly an indispensible epistemic community. Unless this indispensability is challenged, it remains doubtful to me that the ICC ever will pursue a light touch to complementarity and, in turn, alternative justice.

Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court

by Alexander K.A. Greenawalt

[Alexander K.A. Greenawalt is an Associate Professor at Pace University School of Law]

Let me start by thanking Opinio Juris and the Virginia Journal of International Law for hosting this online symposium. I am also honored that Mark Drumbl has graciously agreed to be my respondent.

In 2005, the International Criminal Court issued warrants for the arrest of Joseph Kony, the leader of Uganda’s murderous Lord’s Resistance Army, as well as four other high-level LRA suspects (two of whom reportedly have since died) to answer charges of crimes against humanity and war crimes. The warrants proved controversial when the fate of promising peace negotiations appeared to hinge on the ICC’s willingness to defer to Ugandan efforts to address LRA atrocities in other ways. According to the terms of a draft accord, the highest-level LRA suspects would face a special domestic court charged with imposing “alternate penalties and sanctions,” whereas lower level suspects would undergo traditional, highly ceremonial village proceedings. In all cases, the apparent goal was to emphasize truth-telling, forgiveness, and reconciliation over prison time. Notably, Uganda cited strong support among the LRA’s victims for this solution. When Kony ultimately refused to sign the long negotiated agreements, he blamed the ICC warrants for his hesitation. Since then, LRA atrocities have continued, spreading outside Uganda’s borders, while military efforts to defeat the group have failed.

For students of international law and politics, the episode presents a familiar dilemma of transitional justice. For the ICC, however, the dilemma points to a parallel institutional crisis that exposes deep uncertainties in the Court’s mandate. On the one hand, the ICC exists as a court of last resort: its system of “complementary” jurisdiction requires deference to “genuine[]” domestic investigations and prosecutions. On the other hand, the Court’s statute fails to resolve perennially contentious debates over precisely what sorts of legal responses to mass atrocities-including arrangements that fall short of conventional prosecution-are permissible….

Virginia Journal of International Law, Vol. 50-1: Online Symposium

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three pieces recently published by VJIL in Vol. 50:1, available here.

On Wednesday, Professor Alexander K.A. Greenawalt, Associate Professor of Law, Pace University School of Law, will discuss Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court. Professor Greenawalt examines the difficult institutional problems faced by the International Criminal Court (ICC or Court) in the context of the Ugandan peace process. In recent years, the government of Uganda has been engaged in peace talks with the rebel Lord’s Resistance Army (LRA) to end the nation’s devastating civil war. In 2005, the ICC issued arrest warrants for a handful of LRA leaders accused of crimes against humanity and other grave offenses. Although it was Uganda that initially referred the matter to the ICC, the government later took the position that it would seek withdrawal of the ICC warrants if the accused agreed to undergo a traditional tribal justice ritual requiring a public confession and an apology without threat of incarceration. Professor Greenawalt argues that the Ugandan peace process presents the ICC with its first crisis of this kind. As indicated by the Ugandan experience, Professor Greenawalt explains that the Rome Statute leaves fundamental questions unanswered regarding how far states recovering from mass violence should be required to go in pursuit of criminal justice. Professor Greenawalt proceeds to consider both the interpretive dilemmas facing the Court and the efforts of Prosecutor Luis Moreno-Ocampo to address them. Specifically, he explains that although the ICC is structured to give deference to domestic proceedings, application of Article 19′s framework for complementary jurisdiction, and the Article 53 “interests of justice” dictate to the Ugandan peace process reveals deep uncertainties regarding the ICC’s core relationship to domestic governance. Professor Greenawalt concludes that the Ugandan peace process reveals the Court to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders.

Professor Mark A. Drumbl of Washington and Lee University School of Law will serve as respondent.

On Thursday, Professor John H. Knox, Professor of Law, Wake Forest University School of Law, will discuss Climate Change and Human Rights Law. Professor Knox seeks to identify certain duties that international human rights law places on states to address the effects of climate change on human rights and to provide a framework for further clarification of these duties. To that end, Professor Knox looks to the jurisprudence that human rights tribunals have established to address other types of environmental harm to human rights. Professor Knox explains that this jurisprudence sets out detailed duties, including prior environmental impact assessment, full participation in decisions by those affected, judicial recourse, and compliance with minimum human rights standards. He then argues that such duties can and should be extended to apply to global environmental harm such as climate change. Although Professor Knox discusses practical and legal obstacles to this extension, he ultimately finds a feasible legal basis in the duty of states to cooperate to address common challenges to human rights, a duty rooted in the Charter of the United Nations and the International Covenant on Economic, Social and Cultural Rights. Professor Knox determines that although the international effort to address climate change complies with human rights norms in some respects, states must do more to ensure that the ongoing climate negotiations result in an agreement that provides both for the reduction of greenhouse gases to levels that will not interfere with the human rights of those vulnerable to climate change, and for adaptation to unavoidable changes that would otherwise harm their human rights.

Marc Limon, Counsellor, Mission of the Government of the Maldives to the United Nations, in Geneva, Switzerland, will serve as respondent.

On Friday, Professor Alvaro Santos, Associate Professor of Law, Georgetown University Law Center, will discuss Labor Flexibility, Legal Reform, and Economic Development. Professor Santos argues that the dominant understanding of labor flexibility-a binary between flexibility and rigidity-is misguided and should be revised. To illustrate the shortcomings of the dominant conception, he turns to the highly influential World Bank project “Doing Business.” The Doing Business reports propose legal “best practices” in labor and employment regulation, heralding so-called labor law “flexibility” as a recipe for economic development. Professor Santos argues that the project’s assessment of labor law flexibility contains a number of very serious omissions that seem to stem from a flawed understanding of regulation. Specifically, Professor Santos contends that the Doing Business indicators fail to consider the full range of legal sources by relying primarily on the written law, while remaining blind to the reality of law in action and to widespread economic informality. On the whole, Professor Santos argues that Doing Business promotes a conception of legal flexibility that fails to capture the insight that flexibility for some may mean rigidity for others. As an alternative, Professor Santos develops a framework that unpacks the concept of labor flexibility by assessing the respective entitlements of employers and employees in the labor market. The framework he proposes shows the need for two analytical steps that are currently missing in the literature. First, he argues that it is necessary to undertake a doctrinal assessment of the respective rights, duties, and privileges of the different players in the labor market. Professor Santos contends we need to ask: flexible for whom? Second, Professor Santos argues that we need to pay attention to the social links between the legal regime and the realities of economic life, and that we must pay particular attention to the differences between the formal and informal economic sectors. Based on this analysis, Professor Santos lays out a typology of three different labor regimes that combine flexibility and rigidity in different ways and that can coexist within the same economy and the same country. Professor Santos argues this framework provides a better comparative description of countries’ current labor regimes, as well as their size and distribution in the economy. This framework can serve as a better lens through which to analyze the labor regimes that underpin successful development experiences, and it could, therefore, also provide better guidance for labor regulatory strategies.

Professor Katherine V. Stone of UCLA School of Law will serve as respondent.

We encourage you to join in the discussion online this week by sharing your questions and thoughts in the comment boxes below each posting. When the symposium concludes, we hope that you will keep in contact with us through our website to continue the conversation.