Articles

VJIL Symposium: Alvaro Santos Responds to Professors Howse and Lang

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. I am grateful to Professors Robert Howse and Andrew Lang for their comments on my Article. I am an avid reader of their work and am honored for the opportunity to have this exchange. My Article argues that contrary to the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy, there is still flexibility in the system for countries to carve out regulatory space and pursue heterodox domestic economic policies. The Article seeks to show that often the biggest obstacles to experiment in domestic economic policy are not the trade legal obligations but the beliefs that assign to the WTO a specific form of trade liberalization. These habits of thought assume a determinate meaning in what constitutes a trade distortion when these determinations are in fact the result of policy and value-laden choices. One concrete implication is that contrary to what is often assumed, the hands of the policy decision-makers in developing countries are not tied. Both Professors Howse and Lang seem to agree with the Article’s thesis about the existence of greater policy flexibility in the WTO and raise important points about its implications. I would like to respond by highlighting three themes that stem from their comments: the role of technical expertise, the institutional strength of the WTO’s Dispute Settlement Body (DSB) and the conceptual scope of policy autonomy. First, let me say a word about technical expertise. Professor Robert Howse’s work has been at the forefront of showing the wider range of policy choices available under the WTO agreements. In his response Howse provides an excellent example of narrowing down of policy flexibility using the TRIPs agreement. Although compulsory licensing is often interpreted as being available only in cases of emergency, it is indeed generally available. Howse emphasizes the importance of independent expertise on WTO law for developing countries. A kind of expertise that does not take for granted the conventional wisdom prevalent in the global trade policy elite, the WTO Secretariat or powerful interest groups but that looks instead at how to serve the needs of developing countries. This point relates to the concept of “development legal capacity”, which I use to argue that knowledge and expertise can be deployed to contest dominant interpretations of WTO to experiment domestically with heterodox economic policies. Howse makes clear that different political, social and philosophical views animate different interpretations of what the WTO obligations mean. Here, as in much of his work there is an impetus for the democratization of the global trade regime and for a vibrant public debate about the values we want the system to embrace that I find compelling. Similarly, Professor Lang notes that if developing countries are to be successful in advancing their economic agendas they ought to pay attention not only to their legal capacity in litigation but to the structural conditions that influence the receptivity or the impact that their arguments will have on legal interpreters. I agree and indeed regard countries’ developmental legal capacity as encompassing that kind of work. Lang points to the role of public criticism in the environmental cases. Similarly, one could see the access to medicines campaign in the context of the AIDS epidemic as another important example. Developing countries like South Africa and Brazil, as well as many NGOs, managed to reframe the understanding of TRIPs so that it could not be read to limit states’ rights to pursue their public health objectives. Thus, I agree that countries’ legal capacity and lawyering strategies can’t be limited to litigation. Countries need to devise strategies that would make their arguments gain traction in Geneva and among the trade policy network. This could include very visible work like public campaigns and forging political coalitions as well as the less visible and more gradual work of WTO committees, as Lang has examined elsewhere.

VJIL Symposium: Andrew Lang Comments on “Carving Out Policy Autonomy for Developing Countries”

[Andrew Lang is a Senior Lecturer in Law at the London School of Economics and Political Science.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It is a pleasure to be asked to comment on Alvaro’s most recent paper on ‘Carving out Policy Autonomy for Developing Countries in the World Trade Organization’. I spent a happy few hours reading and digesting the thoughts that Alvaro offers in this paper, and am richer for the experience. I am in sympathy with essentially all of the starting points of the analysis: that WTO law is more ambiguous than is usually appreciated; that it therefore is potentially more flexible than is commonly acknowledged; and that law is not epiphenomenal to relations of power in global trade politics but rather partly constitutive of them. And I appreciate the importance of what I take to be the article’s core point: that building the ‘legal capacity’ of developing countries in the trade regime should mean more than just building their capacity to bring and win cases in the WTO, but more broadly to integrate developing countries’ WTO legal strategies much more closely with their development goals and policies, to shape the terms of their integration into the global trading order. One thought that occurred is that if this project is to be successful, then work on building the ‘capacity’ of developing countries in WTO dispute settlement needs to be complemented by research into the ‘receptivity’ of the dispute settlement system to the arguments that developing countries make. The power to shape the interpretation of the law in WTO dispute settlement, in other words, is not just a function of the legal capacities of the parties to a dispute, but also about the structural conditions which make certain legal arguments appear more convincing, persuasive, institutionally appropriate, textually grounded, and so on to legal interpreters. Alvaro tells the story of the evolution of the law through US litigation of the Tuna and Shrimp disputes as an illustration of the winning strategies of Repeat Players, which might usefully be replicated by developing countries. But isn’t it also possible to explain the change in the law over the course of these cases as in part a response on the part of the regime to its greater public visibility and the rise of public criticism of the WTO? Presumably both play a role – the point is simply to say that building the capacity of developing countries to use the WTO dispute settlement system strategically would ideally be complemented by work on the conditions which make the dispute settlement system receptive (or not) to the strategies that developing countries thereby pursue. A related thought has to do with the pressures that this project will place on the WTO dispute settlement system. Alvaro, and other writing in this area, are right to say that struggles over the interpretation of WTO law are likely to become an even more central aspect of global trade politics over the next decades, partly as a result of more and more Members building their legal capacity in precisely the way Alvaro describes. Is the dispute settlement system equipped at present to respond to the challenges that this will pose? Does it currently possess a sufficient set of juridical tools and techniques to carve out both a legitimate and effective role for itself as it finds itself ever closer to the centre of trade politics? One of the tasks for the next decade or so it to try to craft a way of ‘doing law’ in international economic governance which bears the weight that strategies such as those described in this article will necessarily place on it.

VJIL Symposium: Robert Howse Comments on “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization”

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Professor Alvaro Santos's Article brilliantly illustrates how developing countries can use effectively the WTO dispute settlement system not only to defend but to promote their chosen economic developing strategies, even where these (as in the case of Brazil) diverge considerably from the neo-liberal, Washington Consensus approach that is often assumed, partly erroneously, to be embedded in the WTO treaties. His Article raises the question of whether the policy space available under the treaties is inadequate or whether in fact developing countries have been in some cases overly-influenced by what elites with a neo-liberal orientation have told them the provisions in question mean. To my mind, one of the clearest examples of the problem of who controls the understanding of what the treaty means is that of compulsory licensing under TRIPs. I hear it again and again suggested that TRIPs only allows compulsory licensing if there is some kind of emergency or crisis. This is simply not so. The TRIPs agreement merely imposes fewer conditions in the case of an emergency. But it makes compulsory licensing generally available. In some countries, there is no independent expertise about WTO law. The government and the people only hear the views of officials who have been more or less inducted into the global trade policy elite, or those of the WTO Secretariat, or those of interests who are using the notion of WTO illegality to block a policy they oppose for other reasons. Today, however, NGOs are playing an increasingly useful role in entering policy debates and contesting interpretations that are particularly restrictive of policy space (ICTSD's work on TRIPs is a good example). To be able to do this NGOs had to reposition themselves at least partly from being anti-globalization advocates trying to oppose and delegitimate the system to knowledgeable and shrewd lawyers who see the tensions, flexibilities, and balances in the existing norms that can be a basis for contestation within the legal framework as it stands. I am still struck by how journalists (many, though not all), who can be important in transmitting the meaning of WTO law in a domestic policy debate, will go to the same experts-mostly trade officials, lobbyists, or retired officials, and a few professors who are also consultants or closely connected to the WTO Secretariat-and take their views as the correct ones concerning the meaning of WTO law. When they are writing about questions of criminal law or constitutional law, journalists are much less naive: They often will try and get the views of experts with conflicting opinions, and they know that, at some level, political or social or philosophical views can matter to how one thinks the law should be interpreted and applied. In the case of trade law, they are often just looking for the conventional wisdom.

VJIL Symposium: Introducing “Carving Out Policy Autonomy for Developing Countries at the World Trade Organization”

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. I would like to thank the Virginia Journal of International Law for the invitation to participate in this online symposium and to Opinio Juris for featuring my article and hosting this discussion. In “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico”, I argue against the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy. Despite the presence of restrictions, I claim that there is still flexibility in the system for countries to carve out regulatory space for themselves. That countries can expand their policy autonomy means that governments of developing countries have more agency and responsibility than development scholars typically admit. At the same time, however, the asymmetry of power and resources between countries does affect their experience in the system and thus influences the outcomes to a greater extent than liberal trade scholars usually acknowledge. This Article provides an account of how countries are creating policy space in a way that is currently underappreciated in existing academic literature. This space relies on the ability of countries, as repeat players (RPs), to make use of textual open-endedness in legal obligations, to seek out favorable rule interpretation, and to actively participate in the WTO system through strategic lawyering and litigation. To pursue this strategy, countries invest in “developmental legal capacity,” through which governments recognize the need to make gains in policy autonomy in order to pursue economic policy goals that may be in tension with the WTO’s free trade objectives. This Article draws on two case studies to examine the availability of policy space within WTO obligations and the role of developmental legal capacity. It analyzes the trajectories of Brazil and Mexico in the WTO to show two different experiences of RPs. The divergent lawyering and litigation experiences of Brazil and Mexico reflect different attitudes towards the free trade regime inaugurated by the WTO. Mexico seems to have considered WTO membership — part of its trade liberalization policy — as a strategy for economic growth in itself. It has largely abandoned its powers to selectively promote specific sectors in which it may create comparative advantages with greater growth potential. In contrast, Brazil seems to have combined a strategy to promote market access for its exports with domestic measures to promote economic sectors it considers valuable. When other countries in the WTO have challenged those measures, Brazil has defended them and thus expanded its policy space within the system.

VJIL Symposium: Andrew K. Woods Responds to Professors Baron, Haque, and Ohlin

[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Let me begin by expressing my gratitude to the Virginia Journal of International Law (VJIL) and Opinio Juris for hosting this discussion, and to Professors Baron, Haque, and Ohlin for their thoughtful responses to my recent VJIL Article. Rather than address every point raised by the comments, I thought I would make a few related points. Can It Still be Called Criminal Law? I want to resist the idea that finding a just deserts approach to be sub-optimal (on a consequentialist account – as I say, this project says nothing about the deontological merit of a purely retributive approach) calls for abandoning the international criminal model wholesale. That is, one can reject retributivism without rejecting a “rule-governed legal process that defines crimes, determines responsibility, and imposes punishment,” as Haque puts it. Judges, and the prosecutors who launch international criminal inquiries, need not speak in retributive terms, and they need not speak in retributive terms on behalf of all people everywhere. As I show in Part III of the article, there are a number of decisions within the regime -- such as who to indict, how long to sentence them, and with what sorts of sentences -- that could be made so as to enhance the regime’s effect on international crime without undermining its “criminal law” nature. There may be a first order question of whether criminal law inherently requires finger wagging, but even if we concede that it does we still need to figure out who should be the subject of the finger wagging, why, and on whose behalf. These are design choices within (not without) the criminal law model. I appreciate the point both Professors Ohlin and Haque make about aggregation: in theory, individual judgments need not be overtly consequentialist in order to maximize the overall utility of a particular tribunal. This is a key piece of the “utility of desert” argument, and disproving that argument in the abstract (or as it applies to domestic criminal law) was never the point of the project. Rather, the point was to evaluate what I think is an implicit and largely unacknowledged justification for retributivism in the international criminal system: the idea that just deserts for international crimes are not just right and true but will also serve the policy goals of international justice. In Part II, I gave reasons (six of them!) to think that a retributive system would cause a number of unwanted consequences, and my conclusion is that these consequences on balance will likely outweigh the aggregate benefits of a retributive approach. Scholars like Jonathan Baron and Cass Sunstein have shown how moral outrage can derail deliberative justice in domestic settings, and it seems that there are particular reasons to worry about this problem in the international criminal context. This is partly due to the politics of international justice, which I discuss below.

VJIL Symposium: Jens David Ohlin Comments on “Moral Judgments & International Crimes”

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Andrew Woods has done an admirable job tackling a truly foundational issue: the normative basis for punishment in international criminal law. This issue has engaged my thinking as well, and Woods is to be congratulated for moving the ball forward and asking the right questions. Woods starts from the assumption that international criminal punishment is essentially retributivist. He then proceeds to harness the lessons learned from the domestic punishment literature and then applies them to the international context. In particular, Woods invokes the well-known work by criminal law scholars Paul Robinson and John Darley. In a series of well-known articles and books, Robinson and Darley have argued that there is a utility to moral desert. In other words, (1) individuals have retributive sentiments regarding misbehavior; and (2) designing a system of punishment that tracks those sentiments will, as a whole, produce better consequences. This is one particular way of integrating retributivism and utility into a single coherent theory. For Robinson and Darley, the empirical fact of the matter is that people have retributive sentiments (step 1). At a normative level, however, what makes the system morally justifiable is that these sentiments have beneficial consequences (step 2) – hence the utility of desert. So the theory starts with a description of moral desert at the individual and wraps it in a normative argument at the institutional level that sounds in consequentialism. Woods then proceeds to apply these lessons to international criminal law. In short, he concludes that there is no similar utility of desert for international criminal law. While I think there is much to admire in Woods’ analysis, I take some issue with the first step of the argument: his assumption that international criminal law is fundamentally retributive. If he means this statement as a descriptive claim about the state of the field, I think he is wrong. I myself have argued that international tribunals ought to be far more retributive, so why am I complaining? Because I think that ICL ought to be more retributive, precisely because I think that ICL isn’t sufficiently retributive at the moment.

VJIL Symposium: Adil Ahmad Haque Comments on “Moral Judgments & International Crimes”

[Adil Ahmad Haque is an Associate Professor of Law at the Rutgers School of Law-Newark.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. I want thank Andrew Woods, the Virginia Journal of International Law, and Opinio Juris for the opportunity to respond to such a rich and provocative Article. I could probably write 600 words on any single section of Andrew’s paper, but for present purposes I’ll confine myself to some big-picture issues. Reordered somewhat, Andrew’s core argument works like this: 1. The apparently retributive features of international criminal law often interfere with the maximization of various good consequences including conflict prevention, conflict resolution, and reconciliation. In particular, moral condemnation and retributive attitudes interfere with consequentialist reasoning. (Part II.B) 2. In the domestic context, similar contra-consequentialist features might be justified by ‘the utility of desert’: departures from lay intuitions of justice (‘empirical desert’) seldom deter much crime and may even increase crime by undermining the moral credibility of the law and with it voluntary compliance. (Part I). 3. However, international criminal law cannot effectively harness the power of empirical desert, leaving the contra-consequentialist features undefeated. (Part II.A). 4. Therefore, international criminal courts should deemphasize moral condemnation and depart from empirical desert when this will produce better consequences. For example, courts should consider imposing higher or lower punishments to avoid local backlash; alternative sanctions such as public hearings, naming and shaming, revoking professional licenses, and lustration; paying rebels to disarm; granting amnesties; ordering restitution; economic development; and forward-looking conflict prevention. (Part III). My sense is that accepting many of Andrew’s proposals would make “the international criminal regime” (Andrew’s phrase) either no longer a criminal regime or no longer a legal regime. For this reason, his arguments are best understood as arguments against deploying the international criminal regime in the first place and using other means to prevent, resolve, and respond to conflict.

VJIL Symposium: Comment – Second Party and Third Party Punishment

[Jonathan Baron is Professor of Psychology at the University of Pennsylvania.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you to the Virginia Journal of International Law for inviting me to participate and to Opinio Juris for hosting this discussion. I found this Article to be interesting and informative. It all makes sense to me, and I have no major criticisms. I would like to mention a different approach. An important distinction not mentioned (made in experimental economics and other fields) is that between second-party and third-party punishment, abbreviated as 2pp and 3pp. In 2pp, the victim punishes the injurer. In 3pp, a third party does. In experiments it is often simply another subject in the experiment. In real life, it is often the state, or someone given the power to punish in order to enforce the rules of a group, although it may be simply an uninvolved third person. Roughly, the rise of government over human history coincided with the replacement of 2pp by 3pp. Modern governments, when they can assert their authority, usually forbid 2pp, calling it "taking justice into your own hands" or "vigilante justice" (which can also include 3pp but may also be 2pp by an offended group). The norms of 2pp tend to be based on retribution, although of course this is correlated with (at least specific) deterrence, so that both rationales can be used at once, whichever is primary. ("I'll teach that SOB not to mess with me anymore. And, anyway, he deserves what he's going to get.") The norms of 3pp arise less from the idea of retaliation, since the punisher is not the victim, and are thus more open to other rationales, such as the standard utilitarian rationales of deterrence, incapacitation and rehabilitation, although explicit recognition of these norms came long after state power was well consolidated around the world. In general people tend to see the replacement of 2pp by government-controlled 3pp as a reform. Culture moves from feuds and warring gangs to a more orderly state of affairs.

VJIL Symposium: Introducing Moral Judgments & International Crimes

[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this online discussion on...

Introduction to the Virginia Journal of International Law/Opinio Juris Online Symposium for Issue 52:3

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the third Issue of Volume 52 of the Journal. The complete Issue 52:3 can be downloaded here. On Tuesday, we begin our discussion an Article by Andrew K. Woods (Harvard Law School) – “Moral Judgments & International Crimes: The Disutility of Desert.” In this excellent Article, Professor Woods comprehensively examines the “utility of desert” theory and argues that there is reason to be skeptical about the theory’s application in the international context. Excellent commentary will be provided by Jens David Ohlin (Cornell Law School), Adil Ahmad Haque (Rutgers School of Law-Newark), and Jonathan Baron (University of Pennsylvania). On Wednesday, we continue with Alvaro Santos’s (Georgetown University Law Center) Article, “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Mexico & Brazil.” Santos contends that developing countries in the WTO can use strategies of lawyering and litigation to influence rule interpretation to advance their own interests. He uses the experience of Mexico and Brazil to illustrate the different strategies that have been employed and discusses the different results. Robert Howse (New York University School of Law) and Andrew Lang (London School of Economics and Political Science) will respond. Finally, on Thursday, Jason Webb Yackee (University of Wisconsin School of Law) will discuss his thought-provoking Essay, “Investment Treaties & Investor Corruption: An Emerging Defense for Host States?” Yackee brings attention to the recent trend by host nations of using investor corruption as a defense to liability in ICSID arbitration. In his Essay, Professor Yackee suggests a model framework for dealing with this new trend. Responding to his piece will be Jarrod Wong (Pacific-McGeorge School of Law). Andrea K. Bjorklund (UC-Davis School of Law) and Daniel Litwin (McGill University) will also offer a joint response.