A Response to Tom Ginsburg, Michael Vandenbergh, Mark Cohen, and Jonathan Wiener

by Daniel Abebe and Jonathan S. Masur

We are very grateful to Professors Ginsburg, Vandenbergh, Cohen, and Wiener for engaging in this dialogue with us. The value of discussing these issues with such leading scholars in the field cannot be overstated.

Professor Ginsburg’s very helpful comments push us to focus on two main points: (1) the U.S. has similar internal dynamics that make committing to a climate change agreement difficult; and (2) China can more easily implement an agreement when it commits to “environmental policy  . . . over growth.” Professor Wiener’s post makes the first point as well. We agree that the US and other countries have internal divisions that complicate their attempts to deal with climate change.  We argue, however, that the differences in China are of a far greater magnitude than the blue state/red State divisions in the US and have more serious consequences for climate change. Eastern China is 5 times richer than Western China and the most serious fault lines that produce social instability—rich and poor, industrialized and agrarian, urbanized and rural—fit the East/West divide.  Moreover, in the US, blue states turn red and vice-versa; the CCP must satisfy its constituencies through economic growth, not representative government.  The cost of failure is much higher for the CCP (and China) than for the Democratic or Republican parties in the US.

Second, we agree completely that “when” China commits to climate change, it has the capacity to be effective in implementation. The question is how we should understand China’s incentives and when we can anticipate that this commitment will occur.  We don’t argue that it is impossible.  Rather, we argue that extant studies of China’s incentives miss the fact that the cost of restructuring internal center/province governance to address climate change is much higher than currently anticipated and that the projections of future emissions are too low because they don’t examine China’s internal dynamics.  We suggest that China will deal with climate change once it is more comfortable with the status of its domestic challenges, and that such a time will come later than most analysts predict.  Kyoto and Copenhagen suggest that more time is needed. While we certainly agree with Professor Ginsburg’s excellent comment that the US’s federal structure and adversarial legal culture can be an obstacle for climate change, we think that the internal obstacles that China faces—the necessity of aggressive growth policies, the social instability and East/West divisions—might be greater long-term obstacles for climate change.

Similarly, Professor Wiener may well be correct that internal dynamics will push China towards—rather than away from—an international climate change agreement. The mechanisms he points to are undoubtedly real, and we do not doubt that they exert some force. We suspect, however, that the opposite forces we describe in the Article will dominate any pro-regulatory tendencies, at least in the short term. Domestic Chinese movements for environmental protection are dwarfed by ongoing domestic demand for economic growth. And while Western China might have something to gain from a transition to a greener economy, it has much more to lose from curbs on cheap coal-based electricity and carbon-intensive cement production, to name just two industries.

Finally, we agree with Professors Vandenbergh, Cohen, and Wiener that innovative solutions—supply-chain pressures or the provision of extra pollution credits—might hold the key to inducing Chinese compliance with an international climate change accord. We hope that their optimism regarding these measures will turn out to be well-placed. We wish to emphasize only that we believe that the cost of implementing even these more creative and politically palatable approaches will be high—higher than any American policymaker yet realizes. Until the United States and Europe confront these costs squarely, a workable carbon emission agreement will remain out of reach.

A Response to Daniel Abebe and Jonathan Masur by Jonathan B. Wiener

by Jonathan B. Wiener

[Jonathan B. Wiener is the Perkins Professor of Law and Environmental Policy at Duke University; Eli Goldston Visiting Professor at Harvard Law School; and a University Fellow at Resources for the Future]

In their paper on the “Two Chinas” and climate change policy, Professors Abebe and Masur raise an important point about how China’s internal politics may affect its international relations. They observe that China has relatively richer eastern Coastal provinces and a poorer West, and that continued economic growth (especially in the West) is vital to the Chinese leadership’s priority objective of preventing internal unrest. They also suggest that a disaggregated look at these two Chinas portends higher CO2 emissions than seen in aggregated forecasts. Thus, they argue that the costs to China (both economic and political) of reducing greenhouse gas (GHG) emissions are higher than aggregate models have indicated. They posit that China will therefore not agree to reduce its GHG emissions without significant international side payments from wealthy countries (and may also need to generate internal side payments, from the Coast to the West). But they fear that direct financial transfers from the US to China are politically infeasible in the US. They see more promise in delivering such side payments via transfers of valuable technology from the US and Europe to China.

In this brief post, I can offer several reactions. First, I fully agree that internal politics are highly important to international relations and in particular to participation in international environmental treaties. (For earlier work making this point, see, e.g., Kal Raustiala, Domestic Institutions and International Regulatory Cooperation, 49 World Pol. 482 (1997); Jonathan B. Wiener, On the Political Economy of Global Environmental Regulation, 87 Geo. L.J.749 (1999)).

Second, while Abebe and Masur focus on the influence of China’s domestic divisions on its costs of reducing GHG emissions, they do not address the influence of China’s domestic politics on its benefits of reducing GHG emissions. I argued in a recent paper that the Chinese leadership may plausibly be concerned that political unrest may also be sparked by extreme storms and other environmental disasters that are perceived as linked to climate change. This is especially true in China, which has a history of dynasties falling after natural disasters, and a popular psychology that links the two. Hence China’s internal politics may also motivate the Chinese leadership to see greater benefits from avoiding climate change. See Jonathan B. Wiener, Climate Change Policy, and Policy Change in China, 55 UCLA L. Rev.1805 (2008). This is distinct from and on top of the more general trends that the appreciation of climate change damages in China may be rising, and the costs of GHG emissions abatement may be falling.

Moreover, China’s efforts to reduce the carbon intensity of its economy may also aid its Western economy. Although the Western provinces are major sources of coal, there are also growing new industries in wind energy and nuclear power that may be sourced or sited in the West. And there is some discussion of a domestic GHG emissions trading program within China being oriented to direct transfers to the West.

Third, the rapid rise in China’s GHG emissions in recent years (observed and extrapolated by Abebe and Masur) may also be due to other factors related to climate change policy, notably, possible leakage from the climate policies adopted in Europe and elsewhere. Thus, the type of economic growth and associated rising GHG emissions in China (both Coastal and Western) may be endogenous to the international climate change regime (or its failure).

Fourth, I agree that some side payments will likely be needed to engage China, and that direct government-to-government financial transfers are unlikely (and, worse, would be distorted by internal politics in both donor and recipient countries). The better method, as Dick Stewart and I argued in our book Reconstructing Climate Policy (2003), is through international allowance trading, with China receiving an implicit side payment in extra headroom allowances, and using these to trade back to the US and Europe in return for technology. Thus, the side payment would be delivered in myriad competitive private transactions, a much more cost-effective, and more politically palatable, approach; indeed, US firms would be selling technology to China in return for allowances obtained at lower cost than domestic US abatement.

Finally, and perhaps most interestingly from the standpoint of comparative law, the Coastal-Western tension that Abebe and Masur see within China may be not so different from the Coastal-Western tension within the US. If so, internal side payments may be necessary within both China and the US if the Coastal beneficiaries of climate policy in each country are to persuade the Western resource-rich provinces to go along with a national climate policy. Analogous regional tensions are present within European climate policy. Further study could compare the abilities of the rather different legal/political systems in China, the US and Europe to arrange internal transfers that serve the aggregate national and global interest in effective climate policy.

A Response to Daniel Abebe and Jonathan Masur by Michael P. Vandenbergh and Mark Cohen

by Michael P. Vandenbergh and Mark Cohen

[Michael P. Vandenbergh is Tarkington Professor of Law; Director, Climate Change Research Network; and Co-Director, Regulatory Program at Vanderbilt University Law School. Mark Cohen is Vice President for Research, Resources for the Future; Director, Vanderbilt Center for Environmental Management Studies; Professor of Management and Law, Owen Graduate School of Management at Vanderbilt University.]

Daniel Abebe and Jonathan Masur have made an important contribution to the international climate literature by emphasizing the importance of understanding China’s administrative and economic constraints. They argue that China does not have the incentive to enter into an agreement that requires substantial emissions reductions, and we hope that their paper is the first of many that will look inside the black box to better understand why it might not. A more complete understanding of the “Two Chinas” is all the more important given the lack of progress in Copenhagen. Of course, we note that the United States is not immune to administrative and economic constraints, and that a complete analysis of the prospects for an international climate change agreement must account for the incentives of all the major contributors.

In a forthcoming paper, Climate Change Governance: Boundaries and Leakage, 18 N.Y.U. Envtl. L.J. (forthcoming 2010) (available at http://papers.ssrn.com/abstract=1511797), we argue that global supply chains can be a source of additional incentives for China and other countries to join in and comply with an international agreement. Supply chain pressure also can generate emissions reductions in the absence of an international agreement. If corporate carbon footprints and product carbon labels include supply chain emissions, social license pressure on firms in the US and EU can lead to pressure for carbon emissions reductions by suppliers in developed and developing countries. This disclosure strategy is not a panacea, but it is one of the few viable ways to shift the incentives of both Chinas, creating economic incentives at the firm level in all areas of China and bypassing the political concerns that are the focus of the Abebe and Masur paper. Most of the public and private reporting schemes that have been proposed or adopted to date, however, do not include supply chain emissions within the corporate boundary (e.g., many include a 25,000 metric ton threshold). In fact, they risk making the problem worse by creating incentives for leakage via off-shoring to China and other developing countries.

Abebe and Masur also have highlighted the important fact that factories are heterogeneous with respect to carbon emissions. They argue that clear regional variations exist and that these variations cast doubt on existing emissions forecasts.  These types of variations can be accounted for in corporate carbon footprinting and product labeling schemes through the use of default GHG ratings by location of factory. All Chinese steel products might not be the same—some may be dirtier than others.  This heterogeneity highlights why bringing the analysis down to the factory level has value, even if it is an imperfect science.

A Response to Daniel Abebe and Jonathan Masur by Tom Ginsburg

by Tom Ginsburg

[Tom Ginsburg is a Professor at the University of Chicago Law School]

Thanks for this opportunity to respond to the Article by Professors Abebe and Masur.  My learned colleagues are certainly correct that, notwithstanding its status as a unitary and authoritarian state, China is an internally complicated place, with substantial de facto control at the provincial level.  Besides the East-West cleavages that Professors Abebe and Masur focus on, there are other internal tensions among different levels of government, different governmental agencies at each level, and different ideological groups within the Party. This internal complexity would complicate any climate change deal, were one to be within reach.

Of course, the United States also has internal tensions that undermine the possibility of reaching a climate change agreement. The U.S. also has an imperative of economic growth, and has a population not fully convinced of the benefits of addressing climate change. To over-simplify, the internal debate over climate change here roughly tracks the red-state/blue-state (or red rural/blue urban) distinction.   So there may be a “Two Americas” problem that is roughly symmetric with the “Two Chinas” problem.

Perhaps more importantly, China has a distinct advantage over the United States in climate change policy.  In China, when major political decisions are taken, they can be (though by no means always are) effectively implemented.  Were the center to decide that environmental policy was a priority over growth, it would probably be able to effectuate it, just as China has dealt with numerous other formidable challenges in building a “socialist market economy.” (Consider how the CCP divested the military of its profitable businesses, implemented tax reform, fired hundreds of millions of workers, suppressed major political reform movements etc.)  While it is unlikely that China would decide that, say, the Western regions should subsidize the richer coastal regions, do Professors Abebe and Masur really believe that China could not implement such a program if it wanted?  The capacity for executive enforcement is quite formidable once decisions are taken.

In this regard, the democratic U.S. may have a more difficult time implementing costly policies.  We have a formally federal structure that complicates policy implementation. We have a culture of “adversarial legalism” in which no major decision ever goes unchallenged in the courts. And we seem to be quite unwilling to take any positions that require political will.  Bottom line: the U.S. may be just as much an obstacle as China in this area.

International Agreements, Internal Heterogeneity, and Climate Change: The “Two Chinas” Problem

by Daniel Abebe and Jonathan S. Masur

[Daniel Abebe and Jonathan S. Masur are Assistant Professors of Law at the University of Chicago Law School. Their Article may be found here.]

On July 8th and 9th, 2009, the New York Times published two seemingly unconnected articles about China. One focused on China’s rejection of an agreement to curb greenhouse gas emissions, while the other concerned clashes between Uighurs and Han in Xinjiang Province in Western China. Although these two stories appeared to have little to do with one another, they were actually closely linked. China’s unwillingness to join a climate change agreement is related to its internal political, economic, and social dynamics: the regime’s future depends on its ability to ensure social stability in Western China by guaranteeing high rates of economic growth. A climate change agreement threatens this continued growth, and thus threatens China’s internal balance.

Scholars miss this because they mistakenly treat China as a “black box”: a unitary state whose domestic idiosyncrasies are unimportant. This error has consequences, producing overly optimistic projections about China’s incentives to fight climate change and producing an inability to appreciate the international impact of China’s internal challenges.

The conventional wisdom on China’s willingness to join a climate change agreement reflects this error. The consensus is that the world would benefit from such an agreement, and that such an agreement would be worthless without China. Scholars acknowledge that joining an agreement is not in China’s self-interest. China’s will lose from emissions limitations, while China has little to gain because it stands to lose relatively little if global warming occurs. Despite this difficult problem, scholars conclude that China can be persuaded relatively easily through a series of side payments and that this can be accomplished in a manner that is palatable to the U.S. and Europe.

We believe that this conclusion is flawed. We pry the lid off the Chinese “black box” and explore the impact of internal dynamics on China’s interest in an agreement. Our conclusions suggest that it will be far more difficult to reach a meaningful agreement in the immediate future.

China has several striking internal characteristics. First, China has delegated tremendous authority to provincial and local governments. Second, the Chinese Communist Party’s (CCP’s) success is measured by its ability to create private-sector economic growth. Third, China encompasses an industrialized, prosperous East, and a more agrarian and poor West. Among industrialized nations, China is remarkable in its domestic heterogeneity.

The presence of “Two Chinas” will create problems for negotiating a meaningful agreement. First, the CCP has adopted economic growth to justify its rule. In Eastern China, the CCP’s growth policy worked. Western China, however, is far behind: per capita GDP in Western China is less than half of Eastern China, resulting in income inequality and social instability. Economic growth in Western China has become important and the CCP has prioritized it. China is likely to balk at any agreement that might imperil growth.

Second, as a result of its growth-driven delegation of power, the CCP suffers from an erosion of state capacity: the provinces often ignore the central government, frequently without meaningful consequences. Environmental regulatory agencies are often subordinate to the bodies they regulate.

Finally, the vast majority of economic and scientific projections appear to have underestimated China’s future emissions by failing to account for internal heterogeneity. Eastern China is already industrialized and wealthy; it will likely move towards cleaner technologies and services. Western China is poorer and more agrarian, and the development pattern for such an area involves a shift towards industrialization and higher per capita energy consumption—and Western China is moving in this direction.

Every quantitative forecast of Chinese emissions—save for two—uses only national-level data and washes out distinctions between East and West. Of the two that employ sub-national data, one projects higher emissions than any of the national-level studies; the other projects much higher emissions. This suggests that Chinese carbon emissions in the future may be greater than the models have anticipated, increasing the cost to China of an agreement. Given the importance of economic growth, the structure of Chinese governance, and the need to develop Western China, the prospects for China choosing to join such an agreement in the immediate future seem slim.

Medellín, the Alien Tort Statute, and the Domestic Status of International Law

by David H. Moore

[David H. Moore is a Professor at J. Reuben Clark Law School, Brigham Young University]

The Supreme Court’s decision in Medellin v. Texas has understandably generated substantial debate on the status of treaties in domestic law. Medellin has significant implications for three other areas of foreign relations law as well: Alien Tort Statute litigation, the domestic legal status of customary international law, and the development of a uniform doctrine governing the domestic status of both treaties and customary international law.

ATS Litigation

While most ATS claims are grounded in CIL, treaty-based claims are also raised. Treaty-based claims will not succeed, however, unless the treaty is self-executing and the plaintiff has a cause of action. By endorsing a broad notion of non-self-execution and by endorsing the presumption that treaties do not create domestic rights of action even when treaties “directly benefit[] private persons,” Medellin restricted prospects for treaty-based claims under the ATS. Medellin also undermines the more common CIL-based claims. In Sosa v. Alvarez-Machain, plaintiff Alvarez cited the International Covenant on Civil and Political Rights as evidence that CIL prohibits the type of arbitrary detention he suffered. The Court discounted the evidentiary value of non-self-executing treaties like the ICCPR in identifying actionable norms of CIL, stating that even if Alvarez properly represented the ICCPR’s content, he had mustered “little authority that a rule so broad has the status of a binding customary norm today.” Medellin’s broad view of non-self-execution reduces the evidence available to establish viable CIL-based claims.

The Domestic Status of Customary International Law

Medellin also bears on the more substantial question of CIL’s domestic legal status. That question has split scholars into two primary camps: a modernist camp that perceives CIL as federal common law that the federal judiciary may apply in the absence of positive authorization, and a revisionist camp that maintains that the political branches or Constitution must authorize federal judicial use of CIL as a rule of decision. I have argued, based on Sosa, that the Supreme Court favors the revisionist perspective. Medellin strengthens that argument by displaying the same separation of powers vision evident in Sosa. In that vision, which is consistent with the revisionist view, the political branches take the lead in making domestic law based on international law and in conducting foreign affairs. The vision is evident in the considerations Sosa provided to guide lower courts in identifying actionable norms of CIL in ATS cases—the intent of the political branches, specific definition, wide acceptance, practical considerations, effects on foreign affairs and the political branches’ foreign affairs authority, and alternative means of enforcement. The vision is also evident in the Sosa Court’s comments on the limited role of the judiciary in exercising common law powers and managing foreign relations.

Medellin manifests the same separation of powers vision. In deciding whether the relevant treaty obligations were self-executing, the Court considered the intent of the U.S. treaty makers, the specificity of the treaty obligations, other state parties’ understanding of the treaty obligations, the potential consequences of classifying ICJ judgments as inscrutable federal law, the effects on foreign affairs and political branch authority of eliminating political discretion to reject ICJ judgments and of rendering self-execution a case-by-case judicial question, and the existence in the Security Council of an international alternative to domestic judicial enforcement. These considerations reflect the view that Congress and the executive should have “the primary role in deciding when and how international agreements will be enforced.” In short, the separation of powers vision that undergirds both the revisionist position and Sosa appears in Medellin.

Medellin supports the revisionist position in two other ways as well. The Court’s repeated (and confusing) suggestion that non-self-executing treaties are not domestic law and not merely judicially unenforceable, evidences a view that international law, absent incorporation, generally resides outside domestic law. And Justice Breyer’s divergent conclusions in Sosa and Medellin—favoring a more limited role for CIL than the Sosa majority allowed but a more expansive role for treaties than the Medellin Court permitted—indicates that he, at least, may appreciate the revisionist suggestion that treaties should, absent statute or constitutional amendment to the contrary, have a broader domestic role than CIL.

A Developing Uniformity

Not only do the considerations that Medellin invoked to determine self-execution reveal a separation of powers perspective similar to Sosa’s, those considerations significantly resemble the guidance Sosa provided for the creation of common law causes of action based on CIL. With regard to both treaties and CIL, the intent of the political branches, specificity, mutuality, practical consequences, foreign affairs effects, and alternative means of enforcement (at a minimum) affect the domestic legal import of international law. The Supreme Court’s most significant explanation of self-execution analysis thus supports the notion that a uniform doctrine governing the domestic status of both treaties and CIL is developing.

A Response to Guy Mundlak

by Kevin Kolben

I would first like to thank Professor Guy Mundlak for generously taking the time to respond to my Article, and Opinio Juris for hosting this forum.

Professor Mundlak is very correct to note that over time civil liberties and socioeconomic matters have become more intertwined. What’s more, the overlapping identities and realms in which workers function mean that to be protected and empowered in the sphere of work, they must also be protected in other spheres of human functioning. The same holds true in the inverse. Accordingly, the study of labor and labor law is no longer relegated solely to the workplace, and the study and protection of human rights is no longer only about civil liberties and the relationship to the state. With this I agree.

Professor Mundlak also suggests that the differences that I highlight between labor and human rights movements are perhaps somewhat overstated. And in fact I agree that they probably are—but not by much. Human rights, such as privacy rights, or the rights to water and education that Professor Mundlak mentions, no doubt penetrate into the private sphere. And indeed, as I mention in the Article, there are increasing efforts to try and apply international human rights regimes to non-state actors by scholars and practitioners. But the fact that there is overlap does not mean that there are not still fundamental differences in the conceptualization of these rights. I would be interested, for example, in thinking about what would constitute a democratic, or citizenship approach to privacy in the workplace—notions that I believe are intrinsic to labor rights.

Professor Mundlak in fact draws on the notion of citizenship to propose a very interesting way to think about a traditional cleavage between labor and human rights—that labor rights were traditionally thought of as the power to have rights, while human rights were the rights to have power. What has occurred, he suggests, is that scholars and activists from both arenas have come to understand that both sides of the coin are needed. But I wonder if this is in fact somewhat overstated; and I do believe that the nature of power—who wields it to what ends—remains very different for these two groups. For example, power in human rights discourse tends to mean legal power and rule of law: social movements are fine, but only to the extent that they stay within certain bounds, and help institutionalize desirable legal regimes. In other words, human rights discourse and activists (at least in the United States) tend to underemphasize the power to have rights, in favor of the right to have power. I believe this under-emphasis is particularly notable in the case of groups such as workers and the poor, whom human rights elites might be wary of acquiring “too much power.”

I would very much like to see more of a convergence, but I have yet to see it in practice, culture, or ideology.

The right to Have Power and the Power to Have Rights: A Response to Kevin Kolben by Guy Mundlak

by Guy Mundlak

[Guy Mundlak is a Professor at Tel Aviv University Buchmann School of Law]

I opted for law school because I wanted to take part in the practice of human rights. Several years later I found myself deeply engrossed in the study of labor law. At the time, Israel was still considered to be strongly collective, solidary, and densely covered by collective agreements. Being organized was not a contested topic. However, the rights of Palestinians, minorities and identity groups were considered to be fragile. Over time, I learned that the rights of people in poverty, of workers, and of the unemployed could no longer be taken for granted. The collective system was never as encompassing as it seemed, and it has since fragmented, disadvantaging many workers.

Kevin Kolben went to law school with a strong urge to make a difference in the field of labor. In the exceptional industrial regime of the United States, being unionized was itself a matter of minority identity and a field of struggle. Yet the United States was considered to be a world leader in diffusing principles of democracy and human rights across borders. Several years later, he found himself taking part in a human rights movement. Since 9/11, the challenges of security and national tendencies have reminded those at the heart of western democracy that human rights must be constantly nurtured, and that socioeconomic matters are intertwined with fundamental human liberties. Over the years, our social circumstances have brought us to Virginia Leary’s metaphor of parallel tracks, and since then we’ve been hop-scotching together from one track to the other.

For both of us, the study of labor law is no longer about defending rigid work routines and lifelong tenure, both of which were governed by detailed collective agreements. Both of us read the literature on the East/West and North/South divides, patterns of migration, and global chains of production and care as matters that can no longer be relegated to the old conflicts of communism v. capitalism. The current discussion on varieties of capitalism is also informed by the important realization that civil liberties and social rights are intertwined. Protecting the insiders can no longer be accomplished by looting all the goods at the expense of the outsiders. To the extent that we research and teach those matters that concern us as human beings, the tracks can no longer be kept separate.

Kevin Kolben’s Article is important because he provides the details and examples that demonstrate how the tracks gradually meet. He also warns that fundamental differences remain. It seems to me, having taken the Article apart and looked at the stylized differences, that they are somewhat overstated. The practice of human rights probes the private sphere much more deeply today than in the past. The right to privacy, for example, is of concern to private interests just as much as it is to the state. Commercial interests in information have commodified personal experiences and made private information a matter that human rights must protect. While state censorship is still a matter of utmost concern, lack of access to commercial platforms of communications is currently a significant hurdle hampering the ability of minority groups and dissenting opinions to reach the broader audience. In this era of intense privatization, the rights to water, adequate subsistence and educational resources are matters that target the private and the public equally. Similarly, the assumption that labor is collective, whereas human rights are individual, is a stylized version of our past experiences. Individual rights in employment seek to empower individuals vis-à-vis employers and labor collectivities alike. In the human rights discourse, individuals are increasingly being seen not only as unencumbered selves, but as socially embedded humans, whose interests and goals cannot be separated from the many collective associations in which they take part. The right to human development is a prime example of integrating individual and communal futures. The distinction between rights of outcomes and rights of process can be similarly unpacked. The Maastricht guidelines on social rights hold that social rights (but, in fact, all rights) contain both dimensions within them.

Stylized differences of the type that is highlighted by Kolben are easy to deconstruct, but should not be undervalued. Rights of all kinds are not a sterile mode of legal argument. They carry historical baggage, common intuitions, and the scars of failure and prizes of victory. Kolben’s Article is an attempt not to neatly model a cost-benefit analysis, but to realistically confront the lost assumption of labor and human rights activists that any one single body of rights discourse can resolve debates, ensure results, establish just processes, and serve a well rounded promise of inclusion. Yet, what is the lesson of this observation? Are labor rights and human rights gradually converging into one, or do they remain distinct fields of praxis? Reading Kolben’s Article opens many possibilities. Let me try to suggest one.

Drawing on the wisdom of citizenship as ‘the right to have rights,’ the pooling together of labor rights and human rights can be conceptualized as the right to have power, and conversely—the power to assert and exercise rights. Recognizing the right to associate in a trade union aids in empowering workers. That is the paradigmatic example of the ‘right to have power.’ Being able to act in concert, whether as workers, minorities or other disempowered groups, is the power to assert rights. Acting together can take the form of collective organization at work, but also of mass demonstrations against censorship of dissenters, or consumers’ exchange of information on the labor and environmental practices of multinational corporations. Neither the power to assert rights (traditionally the domain of labor) nor the right to assert power (traditionally the domain of human rights) is currently exclusive to any one type of rights discourse. Moreover, power is not a monolithic term. It designates the power of one over another, the power of public and private agents to normalize perceptions and norms of conformance, but also the power of the many to succeed in acting together. Fighting power, obtaining power, realizing the strength of being together and challenging prevailing norms have become a common practice of scholars and activists who are engaged with different types of rights. The gradual merging of labor rights and human rights is therefore the product of realizing the benefits and limitations of old traditions that emphasized rights or power. The gradual convergence of the two fields provide a coherent scheme that suggests that whatever cause is being endorsed, the right to power and the power for rights are the essence of caring for the disempowered.

The meshing of human rights and labor rights puts many of us in mind of the telos that brought us into these fields of practice and research—to speak on behalf of and organize the disempowered. A history of mutual critique, elaborate deconstruction of each side, and phases of outright animosity, has gradually given way to the fundamental shared empathy for those situated by society in the margins, and acceptance that rights discourses are a strategic legal tool and not an algorithm for just solutions. Human rights and labor rights are gradually becoming indistinct sets of the rights of the disempowered. This may be a naïve portrayal of the complexity Kolben aptly lays out. It clearly does not erase intrinsic conflicts within the discourses of rights and power, but I believe that Kolben’s Article is an important step towards accepting that the tracks must meet.

Labor Rights as Human Rights?

by Kevin Kolben

[Kevin Kolben is an Assistant Professor at Rutgers Business School]

This Article argues that the move to human rights discourse and international legal institutions by labor scholars and labor movements, particularly American scholars and movements, deserves more reflection, debate, and perhaps reconsideration.

Its thesis is grounded primarily in an intuition borne of personal experience. After graduating from college, I worked for several years as a labor organizer for several American unions. When I later entered law school, my attentions turned to transnational labor issues and I spent my summers with labor rights NGOs in India and Cambodia. Then upon graduation, I joined a well-known human rights organization, which at the time was called the Lawyers Committee for Human Rights (LCHR), and which has since changed its name to Human Rights First (HRF).

HRF’s entry into labor issues was representative of what I argue is a general convergence of human rights and labor rights movements and discourse. First, human rights groups such as HRF, Amnesty International, and Human Rights Watch are increasingly entering the realm of labor rights, particularly (although not exclusively) in the international sphere, where they perhaps have a comparative advantage. Second, there has at the same time been an increase in the number of non-union organizations, such as the International Labor Rights Forum, the Workers Rights Consortium, and the Fair Labor Association to name but a few U.S. examples, that address labor issues using human rights tools and language.

The third example of convergence, and the one that forms the main subject of the Article, is the adoption by labor unions of human rights discourse, institutions, and methods to support their primarily domestic labor agendas. Their aim is to advance the formula that “labor rights are human rights.” Many academic commentators have been major advocates of such an approach, seeking to bring international human rights law to bear on the United States in an effort to change its legal regime and create stronger protections for freedom of association and collective bargaining rights.

The deployment by the U.S. labor movement of human rights discourse is thus a highly pragmatic strategy to reverse the declines in union membership, and to bolster its intellectual and political support. By aggressively promoting the notion that labor rights are human rights, labor unions and labor rights groups have attempted to take advantage of the hegemonic status of human rights discourse to achieve several goals: First, to reform U.S. labor law, particularly in the area of freedom of association; second, to effectively target multinational corporations that are susceptible to accusations of being human rights abusers; third, to bolster public support for labor campaigns and to help encourage grassroots organizing through legitimizing labor rights as fundamental human rights issue; and finally, to address labor rights violations in global supply chains.

Yet while there are compelling strategic reasons to deploy human rights discourse, methods, and institutions towards labor issues, I believe that it is vitally important to parse the ways in which labor rights and labor rights movements have properties and normative commitments that differ from those of the broader corpus of human rights law and human rights movements, and to ask how these differences could be problematic.

The first set of differences is more conceptual in nature. The first important difference is that while labor rights primarily affect private actors, human rights primarily affect states. That is, labor rights require the entry of the state to intervene in the private sphere in a way that the bulk of human rights do not. Second, the key labor rights that are of concern to U.S. labor unions and labor movements—freedom of association and collective bargaining—are collective in nature, emphasizing solidarity over individualism. Human rights, however, by and large privilege the individual as the central unit of analysis. Third, human rights, specifically social and economic rights, tend to focus on guaranteeing the provision of basic materials goods to individuals. I call this a “rights as outcomes” approach. Freedom of association and collective bargaining rights, however, tend to emphasize processes, and I refer to them as “mobilization rights.” That is, there is something central in the core of labor rights thinking about worker agency and democratic participation in the workplace. They say something central about workplace power and economic ordering that human rights tend not to.

In addition to these conceptual differences, there are vitally important institutional, cultural, and political differences between human and labor rights movements, and between the people who constitute them. One difference is in the importance of law in social change. While law is highly privileged and is the central mechanisms of change for human rights movements (hence the number of human rights scholars and clinical teachers in top law schools), law for labor movements is secondary—an instrument to help facilitate grassroots action.

Second, labor movements tend to understand history and social change as results of collective action. Human rights movements, on the other hand, tend to privilege individuals as agents of social change—very often middle class and educated human rights activists like themselves.

This reflects a third difference, which is that human rights movements tend to approach labor issues from a philanthropic perspective—”helping those in a less privileged position.” Labor movements tend to conceptualize the solution to labor issues as facilitating worker agency.

Fourth, all of these differences reflect a very material difference between the composition of these two movements, which might not be determinative, but is at least informative. Labor movements and their professional staff tend to be composed and led largely, although certainly not entirely, by rank and file staff. Human rights movements, on the other hand, tend to be staffed and led by elites who often come from financially and educationally privileged backgrounds. Indeed, it is very difficult to get a job at the human rights organizations without having graduated from an elite university and, often, coming from independent wealth to subsidize your relatively low pay.

All these foregoing points are related, I believe, to the final cleavage, which is the difference in emphasis that human rights movements and human rights activists tend to place on freedom of association and collective bargaining rights, at least compared to labor movements. While there are notable exceptions to this, such as in the seminal reports of human rights watch, my own experience reflected a basic discomfort among human rights organizations with trade unions, and more generally with the concept of workplace democracy or industrial citizenship.

Despite these cleavages and differences, which I discuss more expansively in the Article, my major point is not to boldly claim that “labor rights are not human rights,” which is not particularly enlightening or helpful. Rather, I wish to emphasize that despite the strategic appeal for labor scholars and activists in making labor rights and human rights synonymous, there are in fact important conceptual and practical differences that need to be highlighted and recognized in order to better understand a) the differences and similarities between these two discourses and movements, and b) the pitfalls that might lie ahead.

A Response to Geoffrey Corn

by Sean Watts

Thank you to Professor Corn for his exceptionally thoughtful response to the article. His observations illustrate vividly, and persuasively, the apparent choices undergirding the traditional approach my Article critiques. I’ll reply briefly to some of his comments and conclude by highlighting what I perceive to be larger issues in the law of war that our dialogue might provoke.

Professor Corn casts application of the traditional four combatant criteria to CNA participants as a presumption, bringing with it the attendant benefits of clarity and predictability. His Miranda analogy suggests that law of war application in the context of CNA reflects a weighing of costs and benefits parallel to that produced by decades of experience in U.S. criminal procedure. Reflection on his parallel rekindled two thoughts that both inspired and informed the article. First, my research did not reveal evidence of the type of state deliberation, debate, or dialogue that inspired adoption of the Miranda presumption. As an international lawyer with strong sovereigntist sympathies, I was especially eager to find such evidence. It quickly became apparent, however, that application of the combatant criteria to CNA merely represents a reflexive or rote application of the only existing positive legal framework. It is in this regard that the extant approach might actually evince a doubly empty formalism—one of both procedure and substance, although we appear to disagree on the latter.

Second, and on the point of the latter, while I think he’s correct to highlight and defend the benefits of legal presumptions, I wonder whether the traditional combatant qualification presumption adequately accounts for its costs. The Article concludes with what I regard to be one of the law of war’s great cautionary tales: Admiral Doenitz’s conviction at Nuremberg for violating war rules universally discredited and regarded as out-of-touch. The Doenitz conviction illustrates the laws of war’s acute susceptibility to irrelevance as well as the extent to which it relies upon its end users’ trust that it accounts for the realities they face in combat. As Professor Corn notes, I do not advocate abandoning the traditional combatant criteria wholesale. However, the criteria have enjoyed their relevance, longevity, and perhaps their presumptive application, precisely because they have, for so long, actually reflected both States’ will and accounted for battlefield realities. My sense is that, in CNA, the criteria cannot operate long without provoking harmful distrust of the law’s efficacy. The Article set out to highlight what I perceived to be a threatening dissonance between that law and the realities of a rapidly changing and increasingly relevant realm of combat.

It seems our discussion reveals potential normative and theoretical points about the evolution of the law of war as well. Professor Corn and I are perhaps like-minded in our assumptions about what constitute valid sources of law and worthwhile norms. However, his observation that some combatants’ exposure to hostilities may be out of proportion to their participation calls to mind schools of thought that take greater account of individuals’ interests, combatant and civilian, in the formation of the law of war than perhaps my own sovereigntist view does. Additionally, competing international law compliance theories might shed additional light or cast doubt on the viability and desirability of the article’s proposal. Although compliance theory is well integrated into jus ad bellum scholarship, I note less thorough treatment from jus in bello work. I wonder whether a better developed in bello compliance theory would enrich our discussion of the costs and benefits of presumptive application of existing law to emerging forms of warfare?

A Response to Sean Watts by Geoffrey Corn

by Geoffrey Corn

[Geoffrey Corn is an Associate Professor at South Texas College of Law]

Let me begin by extending my compliments to Prof. Watts for his exceptionally well-written article, and my thanks for his suggestion that I provide comment. I am also grateful to my friends at Opinio Juris for extending this opportunity to me—it is nice to be back!

CNA obviously represents one of the most complicated intersections between the evolution of military operations in the efficacy of the law of war regulatory norms. Prof. Watts carefully and comprehensively explains in his Article why the evolution of CNA infrastructure and architecture increasingly calls into question the underlying logic that animates the existing law of war framework for determining who may lawfully participate in hostilities associated with an armed conflict. In response to this evolution, Prof. Watts proposes a reassessment of this framework that would abandon the existing rules that limit participation in hostilities to members of the armed forces. Instead, he asserts that for purposes of CNA operations, the relationship between the operator and state authority should be the focal point of legitimate participation.

Prof. Watts makes a compelling case in support of his assertion that the traditional four element test for determining lawful combatant status (carry arms openly; wear a fixed distinctive emblem recognizable at a distance; operate under responsible command; and comply with the law of war) is functionally inapposite to CNA operations. This provides the foundation for what he suggests is a more logical focus to determine the permissibility of employing civilians as CNA operatives: relationship to state authority. According to Professor Watts, this revised focus would produce a more logical and credible criteria for the regulation of CNA operations. Ultimately, he concludes that because the traditional “combatant” qualification criteria—developed in large measure to enhance the ability of combatants to distinguish participants in hostilities from the civilian population—provides no meaningful regulatory benefit for CNA operations conducted “over the horizon” where the initiation of effect will almost inevitably be geographically attenuated from the impact of the effect, restricting participation in CNA operations is nothing more than empty formalism.

In essence what Prof. Watts has done is to expose an area of over-breath inherent in the regulatory regime of the law of war. The regime is premised on a system of group affiliations, with accordant consequences flowing from these affiliations. Combatants have a right to participate in hostilities, and as a consequence are presumed to be hostile and therefore subject to attack based solely on a status determination. That presumption is rebutted only when they are no longer capable of acting pursuant to the will of their group. Civilians are not permitted to participate in hostilities, and as a consequence benefit from a presumptive immunity from attack. That presumption is also rebuttable, but the burden is placed on the combatant to determine whether the individual conduct of a civilian justifies the loss of that immunity.

It is, of course, difficult to dispute that in the interest of providing operational certainty or clarity the law subjects members of the Armed Forces to an overbroad risk of harm and in the view of many provides civilians with an equally overbroad scope of immunity. This over-breath is clearly intended to mitigate the risk to civilians while at the same time to facilitate the ability of Armed Forces to bring their opponents to submission. Nonetheless, the reality that many members of the Armed Forces pose an insignificant or even nonexistent actual threat to their enemies, while many civilians engage in activities that could easily be regarded as even more threatening to the armed forces, reveals that the interest in establishing bright line categorizations based on the general assumption that members of the Armed Forces pose a threat while civilians do not, has led states to accept the consequences of this over-breath.

Presumptions, however, serve an important purpose: clarity and predictability. They also create an almost inevitable consequence of factual over-breath and under-inclusiveness. The classic illustration of this reality is the Miranda warnings requirement that has become perhaps the most widely known legal presumption in our society. It was clear when the Supreme Court created the presumption that a statement made during custodial interrogation was involuntary, the Court recognized the risk of over-breath. Nonetheless, the Court accepted that risk when it held that whether a suspect in fact understood her rights without a warning, or whether a suspect in fact did not fully understand them after a warning and waiver, would be irrelevant in future assessment of whether an individual’s response to custodial interrogation was voluntary. The reason for this seemed clear: the Court was willing to tolerate this inevitable over-breath and under-inclusiveness on the factual fringe in exchange for the far more important benefit the presumption would produce in the vast majority of cases.

I certainly appreciate the logical rationale of the proposal Professor Watts offers. However, I am not convinced that modifying the bright lines produced by the presumptions of the law of war in order to address the factual over-breath at the fringe is worth the cost of opening the door to altering the group based presumptions that define who may participate in hostilities. In my view, his argument is analogous to an argument that a police officer or a district attorney need not be advised of Miranda rights prior to custodial interrogation because doing so is really just adherence to empty formalism. Factually, this is undoubtedly true—such suspects probably know their rights better than most defendants who are advised of them. Nonetheless, I believe that in situations where the over-breath of such presumptions produces factual dissonance, the critical question is whether the value of complying with the presumption is more than mere formalism, but instead is a means of protecting the regulatory presumption to dilution.

I question whether Prof. Watts has provided an answer to that question. It strikes me that the many academic and military proponents of applying the traditional combatant/civilian dichotomy to CNA operatives—a position Prof. Watts discusses and challenges in his Article—are likely motivated by an analogous willingness to accept the risk of over-breath in order to achieve the advantage of clarity. The ultimate question that I believe must be asked before states discard what Prof. Watts characterizes as empty formalism in favor of his newly proposed state association test is how a simultaneous acknowledgment that the functions performed by civilian CNA operatives are indeed combatant functions is how deviation from the traditional presumptions will impact the evolution of the law in other areas.

To his credit, Prof. Watts points out that it is the attenuation from the traditional battlefield that in large measure justifies deviation from the traditional combatant civilian dichotomy and that his proposal should not be viewed as a general condemnation of that tradition. Nonetheless, I believe his proposal will beg the question: if state association should be the singular focus for determining who can engage in CNA operations when the operative is unlikely to be observed by the enemy and therefore will not implicate the principle of distinction, why shouldn’t that be the focus for determining who should engage in other activities associated with the infliction of kinetic and non-kinetic harm on an opponent so long as the operative is not in immediate proximity to the enemy? For example, how likely is it that an enemy will observe who is flying a bomber? So long as the bomber itself is distinguished from civilian aircraft, the logic applied to CNA operatives should extend to the bomber pilot? This is the door I think it might be wise to keep closed.

Ultimately however, I do believe Prof. Watts has added tremendous value to the discourse on the issue of CNA operations, and that his emphasis on the link between these operatives and state authority will bolster the view of many experts in the field that the potential consequences of CNA operations renders it imperative that states ensure a regulatory and disciplinary framework is applicable to individuals who engage in those operations. I, for one, am not ready to concede that it is a mere act of formalism to require that these operatives be members of the Armed Forces. However, by challenging convention—both literally and figuratively—Prof. Watts will force proponents of this position to consider not only the potential flaws in their positions, but also whether the benefit that might derive from adopting this proposal could ultimately outweigh the accordant risk.

Combatant Status and Computer Network Attack

by Sean Watts

[Sean Watts is an Assistant Professor at Creighton University Law School]

A stunningly prescient, yet unfortunately anonymously authored, piece in the 1921 British Yearbook of International Law, argued that the application of science to warfare would inevitably lead to more destructive and intolerable forms of war. From this gloomy premise, the author concluded that efforts to develop laws of war were misplaced and would ultimately discredit international law, which could never keep up with the pace of invention. Although the author wrote nearly a century ago, and conjured hydroplanes and aerial bombardment as he wrote, his concerns are echoed in current law of war scholarship examining innovations in warfare.

Alongside transnational terrorist threats, the national security implications of computer network attacks (CNA) have prompted major adjustments to states’ defense strategies. A growing number of states now recognize cyberspace as a realm of combat operations equivalent in importance to land, sea and space, with many now capable of launching offensive CNA. My Article examines the question of combatant status in such CNA—specifically, who, under the existing law of war, may lawfully participate in CNA? Existing accounts evaluate combatant status in CNA under traditional criteria applicable to kinetic and line-of-sight warfare. I argue such approaches are outmoded and induce states to engage in practices that amount to no more than empty formalism. With historical, textual, and normative analysis, I argue that state sanction or imprimatur is an appropriate standard for evaluating combatant status in CNA. The analytical framework proposed not only aligns with existing law and emerging state practice, but may also resolve the question of status in other remote combat engagements.

Thanks to Opinio Juris for hosting this forum and also to the Virginia Journal of International Law (VJIL), whom I’d like to congratulate on the publication of their 50th Anniversary Volume. I’m honored that Professor Geoff Corn, a longtime mentor, has agreed to comment on the article—I look forward to his thoughts and those of Opinio Juris readers.