Articles

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris.

[Carsten Stahn responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is inter alia editor of 'The International Criminal Court and Complementarity: From Theory to Practice', Cambridge University Press, 2011. ] One Step Forward, Two Steps Back? – Second thoughts on a ‘sentence-based’ theory of complementarity I am delighted to comment on Kevin Heller’s thought-provoking essay. I have been following his scholarship for a number of years. It is a great honor to engage with this challenging topic on ‘Opinio Juris’. His scholarship stands out for his obvious originality and critical engagement with policy dilemmas of ICC practice. This piece is no exception. I have no doubt that it will give rise to significant debate and might even divide scholars and practitioners engaged in the complementarity debate. I share certain hesitations regarding the central claim of the article. In my view, the argument that the ICC should focus ‘exclusively on sentencing’ when determining whether ‘ordinary’ crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

[Darryl Robinson, Assistant Professor, Faculty of Law, Queen's University, responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] In Defence of the “Same Conduct” Test for Admissibility Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion on complementarity (regarding when the ICC should defer to national proceedings over a case). The article has two main features. The first is a convincing critique of approaches to admissibility that would focus on the charges brought at the national level (for example, whether the state charged using international definitions or ‘ordinary’ offences). The second is a proposal to replace such approaches with one focused on the sentence. I examine Kevin’s main arguments in more detail elsewhere (Three Theories of Complementarity). I agree with Kevin’s critiques of approaches to admissibility that focus only on the charges. However, I argue that that an exclusively sentence-based approach also raises some quite serious difficulties, including inter alia that comparing a particular sentence to international ‘averages’ is not sufficiently subtle to evaluate national proceedings. I therefore suggest a third option, a process-based approach. A process-based approach can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process. I think that Kevin’s work offers some very important insights about the limited role of charges and the potentially significant role of sentences, which should be incorporated into any theory of complementarity. In this posting, I want to focus on one narrow issue raised in A Sentence-Based Theory and in other recent thoughtful scholarship. Kevin and others have raised important concerns about the “same conduct” test, which is the test employed by ICC chambers to determine if a state is proceeding with the same “case”. Because this question is very current in scholarship and in the blogosphere, it is timely and valuable to examine it here. While I partially agree with the concern, I will try to demonstrate that the problem is actually much narrower than it is widely perceived.

[ Kevin Jon Heller, Senior Lecturer, Melbourne Law School, describes his recently published article, A Sentence-Based Theory of Complementarity. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Article 17 of the Rome Statute prohibits the International Criminal Court (“ICC”) from pre-empting a national prosecution of an act that qualifies as a war crime, crime against humanity,...

[Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, responds to David Landau, The Reality of Social Rights Enforcement. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] David Landau’s article is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable. (As does Landau, I put aside the U.S. case in this comment.) Not “whether,” but “how” is the question now on the table among serious scholars and judges. Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms – individual actions primarily seeking individual-level affirmative relief, negative injunctions, weak-form review, and structural injunctions – and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure. Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity. As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles. Many of the world’s poorest nations have severely limited internal economic resources. Political obstacles are substantial even when resources are available, or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small. One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights.

[ David Landau, Assistant Professor of Law, Florida State University College of Law, describes his recently published article, The Reality of Social Rights Enforcement. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions...

We want to begin our closing post by thanking everyone who has participated in the symposium on our article this week. We also wish to thank our lead editor at the Yale Law Journal, Philip Levitz, who help arrange this symposium (as well as a forthcoming symposium at Yale Law Journal Online) and who has been truly outstanding in...

We want to thank the participants in the symposium once again for their fantastic comments on our article. We have really enjoyed watching the discussion unfold. Here we offer a few words in response. In his post, Peter Spiro suggests that we are operating from a “sovereigntist premise.” If what Peter means by this is that we...

I read Scott's and Oona's article Outcasting with great pleasure.  It is a wonderful contribution to the burgeoning literature on legal pluralism and non-state governance.  In particular, the article contests two propositions that have undermined recognition of various forms of non-state law: first, that law must be enforced by the legal regime itself; and second, that law must be enforced through...

We want to thank Gary and Samantha for offering such interesting insights.  We will not be able to do them justice, but let us at least offer a few brief words in response. In his latest post, Gary calls on us to say more about when outcasting will be effective at changing state behavior, calling for both process tracing and empirical...