In association with the International Commission of Jurists

Symposia

05 Apr

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

In September 2000, I began work for appellate judges at the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia. Soon after arriving, I quickly came upon a decision the Appeals Chamber had rendered in a case called Barayagwiza.[1] In that case, the Appeals Chamber initially stayed proceedings against Jean-Bosco Barayagwiza, one of the chief architects of the notorious radio station, Radio télévision libre des millies collines (RTLM), because he had spent close to a year in custody without being charged. The stay was a radical response to the prosecutorial (and judicial) error: it effectively ended the trial of one of the Rwandan Genocide’s most outspoken protagonists. Predictably, Rwanda baulked at the decision, and threatened to cut all ties with the ICTR. With this response and other new information, the Appeals Chamber reviewed its earlier decision, lifting the stay and declaring that the violation of Barayagwiza’s basic rights could be addressed through either a sentence reduction or financial compensation in the event of an acquittal. At the time, I felt that politics had trumped principle in Barayagwiza, but I hadn’t then had the benefit of Professor Jenia Iontcheva Turner’s excellent new article. Professor Turner’s piece Policing International Prosecutors eloquently argues against the type of absolutist positions that the Appeals Chamber first adopted in Barayagwiza. Rather, it favors a more nuanced array of sanctions that can be calibrated to specific prosecutorial errors. She argues that the absolutist position does violence to the interests of victims, the desires of the international community and potentially the quest for peace and reconciliation. These values should not be sacrificed to generate greater prosecutorial discipline. Instead of adopting such blunt sanctions, Professor Turner ably argues that international courts and tribunals should consider and deploy a wider variety of sanctions, which can be better married to the intricacies of each particular prosecutorial violation. These sanctions include sentencing reductions, dismissal of select counts of an indictment, declaratory relief, and the type of compensation envisaged for Barayagwiza. A wider panoply of institutions should also have some role in this process.
|
04 Apr

[Sonja B. Starr is an Assistant Professor of Law at the University of Michigan Law School.] This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below. In Policing International Prosecutors, Jenia Iontcheva Turner offers a rich account of the competing interests at stake in cases involving international prosecutors’ misconduct, and advances a strong case that remedial doctrines should squarely acknowledge those competing interests. Because international law has often struggled to close the gap between rights and remedies, many might understandably be skeptical of proposals to explicitly recognize the validity of such gaps. Still, I agree with Turner that in some instances, a candid remedial interest-balancing approach is the best solution to intractable conflicts of legitimate interests. I have previously proposed remedial interest-balancing and the use of intermediate remedies (e.g., sentence reduction) in international criminal procedure on the grounds that it might improve the protection of defendants’ rights. Overly rigid remedial rules may perversely often result in no remedy at all, because if the only available remedies involve releasing defendants who may be perpetrators of atrocities or ordering a costly and lengthy retrial, tribunals may find ways to avoid recognizing rights violations in the first place. Turner offers a distinct, complementary argument: even assuming interest-balancing is not ultimately better for defendants, defendants’ rights are not the only important interest at stake. Holding the perpetrators of international crimes accountable and establishing a record of atrocities are vital international interests that sometimes should outweigh the defendant’s right to a remedy for misconduct. Turner argues persuasively for this conclusion, develops the case for a range of alternative remedies, and proposes a nuanced approach designed to ensure that defendants’ rights are not compromised unnecessarily. In this regard, her proposal could be strengthened if it clearly drew one bright-line distinction: interest-balancing can never justifiably extend to permit courts to allow a conviction that is not based on a fair trial (or a valid guilty plea). By “fair trial,” I mean one that, whatever its failings, remains a legitimate test of whether the defendant’s guilt is established beyond reasonable doubt. If prosecutorial misconduct throws the validity of a conviction into doubt (or, ex ante, has rendered it impossible to ensure a fair trial even if lesser remedies are invoked), the tribunal’s obligation is not just remedial in nature—it is an obligation to cease a continuing violation of the defendant’s rights or to prevent a future one, namely the imposition of wrongful punishment.
|
04 Apr

[Alex Whiting is the Prosecution Coordinator at the Office of the Prosecutor at the International Criminal Court. The views expressed are his own.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

I commend Jenia on her thoughtful and balanced analysis of remedies at the ICC for prosecutorial mistakes or misconduct. It is a topic that should be of interest and concern to all actors within the Court, as well as interested parties on the outside. I particularly appreciate that she clarifies that she is talking about both prosecutorial errors and misconduct. I can attest to the extremely high ethical commitment of the prosecutors within the Office of the Prosecutor, and the intense distress that is felt within the office when mistakes are made. Nonetheless, mistakes, and even misconduct, can occur, and therefore it is important to consider the appropriate remedial approach when it happens. Speaking for myself only and not on behalf of the office, I agree with Jenia regarding the wisdom of the balancing approach, but there may be an additional hazard to the ones she identifies. Just as an absolutist approach might cause judges to avoid finding a violation of an accused’s rights – what Jenia and others refer to as “remedial deterrence” – the balancing approach, which offers the judges a range of remedial options, risks having the opposite effect, causing judges to be too willing to find prosecutorial violations or prejudice to the defense. If judges can impose only a small penalty on the prosecution for an alleged violation, will they be more likely to succumb to pressures to “even” the score or to appear balanced and fair in a high-profile and much-scrutinized case? This risk will be greatest when it is not an individual prosecutor but rather “the Prosecution” that is to be sanctioned. We all like to think that judges are immune to such pressures, but the premise of the remedial deterrence argument is precisely that they are not, that they are in fact human, and so we must also consider the danger of pressures pushing in the opposite direction.
|
04 Apr

[Margaret deGuzman is an Associate Professor of Law Temple University Beasley School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

Thanks to Opinio Juris for inviting me to comment on Jenia Turner’s article and to Professor Turner for her excellent and thought-provoking work.

Professor Turner’s article tackles an important problem that has plagued the ICC in its early days. When the ICC Trial Chamber ordered the release of the the Court’s first defendant due to the prosecutor’s procedural violations, it sent shock waves through the international community. Was the ICC’s first case to be derailed by prosecutorial misconduct?  Reactions were mixed.  Some commentators felt the Trial Chamber was overreacting.  Professor Bill Schabas invited the defendant to dinner. Professor Schabas’ dinner did not come to pass, however, because the Appeals Chamber rejected what Professor Turner terms the Trial Chamber’s “absolutist” approach to remedying the prosecutor’s errors.  The case proceeded, resulting in a conviction and a fourteen-year sentence. Professor Turner’s article endorses the Appeals Chamber’s more moderate approach to identifying the appropriate remedy for prosecutorial errors and misconduct. Indeed, she urges international courts to go further and develop a balancing test that explicitly pits the interests of victims and the international community in prosecuting international crimes against the values of deterring misconduct and promoting fair trials. The article makes an important contribution to the growing literature on remedies at international criminal courts. Professor Turner provides both a detailed analysis of existing jurisprudence and a compelling normative argument, complete with proposed factors for courts to consider in performing the requisite balancing. The article will thus be extremely useful to scholars and judges alike.
|
04 Apr

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below. We are excited to collaborate again this week with Opinio Juris for an online symposium. The symposium will be a discussion of Jenia Iontcheva Turner's article Policing International Prosecutors published in our Volume 45, No. 1...

|
28 Mar

[Eric Posner is Kirkland & Ellis Distinguished Service Professor of Law and Aaron Director Research Scholar at the University of Chicago. Alan Sykes is Robert A. Kindler Professor of Law at NYU Law.] In Economic Foundations of International Law, we provide a treatise-like account of international law from a rational choice perspective. The book builds upon an already considerable body of work by many different authors, and we hope that it will stimulate further research in this area. We thank Andrew Guzman, Emilie Hafner-Burton, David Victor, Rachel Brewster, and Steve Charnovitz for taking the time to read the book and provide their reactions for this symposium, and Opinio Juris for hosting it. Here we provide a brief response to their comments. Hafner-Burton and Victor focus on the relationship between political science scholarship and legal scholarship, and see in an empirically grounded economic approach a way to reconcile the disparate focuses of the two disciplines, where in the past scholars in the two disciplines seemed to have trouble communicating with each other. We agree with their sentiments. Political scientists and law professors will always harbor different methodological orientations—political scientists, frankly, have higher standards both for modeling and empirical testing, while law professors are more preoccupied with interpreting legal texts and providing normative recommendations—but the rational choice framework provides a kind of portal between the two disciplines. Both groups understand the language of rational choice even if they find other theoretical constructs used by the other to be bewildering, and the rational choice framework provides a useful way to generate hypotheses for empirical testing. Hafner-Burton has herself been a leading figure in empirical testing of the effects of international human rights law, and although many law professors writing about human rights stubbornly refuse to engage with it, it is obvious that her work, the work of Beth Simmons, and that of other political scientists, will have a major effect on legal scholarship on human rights in the long run. By contrast, we question whether realist theory will ever have an impact on international law scholarship, and doubt that constructivism will ever have a distinctive impact on international law scholarship, though many of its premises and commitments mirror ways of thinking that have long played a role in legal scholarship of all types. Let us turn from positive to normative.
|
27 Mar

[Steve Charnovitz is Associate Professor of Law at GW Law] Economic Foundations of International Law is an introduction to and reference work on the economic approach to analyzing and understanding international law. The book seeks to summarize and highlight the existing literature and to provide an intellectual framework for future scholarship.  In my view, this book succeeds in its purposes. The book is to be commended for its synoptic coverage of the entire spectrum of public international law. While some interesting topics are underemphasized (e.g., constitutional issues of international law), the book covers issues that I had not expected (e.g., such as exchange rate manipulation). I like the way that the issue of the intersection between international law and domestic law is included as one chapter in Part II "General Aspects of International Law" and the way in which the authors include a Part V on "international economic law" although I would have been happier to see a definition of that term.  The authors included the law of the sea chapter in the same part as their strong chapter on international environmental law, even though some parts of maritime law could have been placed under Traditional Public International Law. In any event, the broad scope of the book in itself enables the authors to achieve their purpose of providing a valuable reference work on public international law.  Although the book includes an index and a moderate amount of footnotes, the authors missed an opportunity to present a bibliography of sources so that one can see the whole of the body of  literature that the authors seek to promote. The book also suffers in not presenting a conclusion. Let me now address a few substantive weaknesses:
|
26 Mar

[Rachel Brewster is Professor of Law at Duke Law] One of the many virtues of Eric Posner and Alan Sykes’ new book, “Economic Foundations of International Law,” is that it provides the reader with a theoretically coherent and consistent overview of important international treaty regimes, substantive international rules, and state enforcement practices.  The book is a lucid introduction to international law for students and also contains sophisticated analysis of the dynamics of international legal systems for academics and international lawyers. A major theme of the book is that state compliance with substantive international rules is not always optimal.  This will be controversial with many audiences, but is extensively defended in the text.  Once the authors shift to this paradigm (where compliance with substantive rules is not the primary goal), then the question of remedies take center stage.  Remedies serve an important sorting function by defining the consequences of breach, permitting (even encouraging) “efficient” breaches, and discouraging those that are inefficient. Remedy law thus receives its own chapter (rare for international law), as well as an extended discussion in the international trade and international monetary law chapters. If remedies are properly calibrated, then they can support differing levels of enforcement.  To deter any breaches of international law, remedies should seek to eliminate any gains to the breaching party (accounting for the likelihood of detection).  To permit efficient breaches, the remedies need only provide expectation damages to the injured party.  As the authors argue, the creation of a third-party adjudicatory system of limited remedies can actually create more opportunities for “cheating” than a system of unilaterally determined responses to breach. How one assesses remedies and what is entitled to a remedy are thus important issues to maintaining optimal levels of compliance with international rules.  Posner and Sykes maintain that the best means of operating international remedy regimes is through a liability rule, where a court or arbitrator determines the level of damages, rather than through a property rule, where a court would issue an injunction against a breach and the parties would renegotiate the relevant legal rule (either globally or for the particular case).  Both approaches have costs.  The liability rule may produce errors because the judge or arbitrator cannot correctly assess the level of damage to the injured party.  The property rule allows the parties who have private information on the level of injury or gain to use this information in bargaining, but the property rule can have high negotiation costs and hold-out problems (if bargaining with multiple parties).  The authors argue that the costs of the liability system should be lower in the international context. Yet we can still debate whether the liability rule approach is really preferable in international law.  First, in bilateral or regional treaties agreements, a property rule may be preferable because the negotiating costs may be relatively low compared to the possible error of a liability rule, and concerns about hold-outs decrease.  Second, most disputes (if not most agreements) are bilateral.  The vast majority of the time, only a few states will bring complaints even if the allegedly breaching policy affects many states.  A number of factors, including power differentials and litigation costs, can prevent states from pursuing high quality cases.  For instance, in the WTO Upland Cotton case, the US policy affected a wide group of cotton-producing states, but only Brazil brought a case against the US.  If most cases are bilateral (or involve a small number of plaintiffs) then, again, negotiation costs and hold-out concerns are lower.  In addition, the property rule may better mimic an optimal remedy.  If only a small number of states bring claims, then a liability rule may be a very good filter for determining efficient versus inefficient breach.  A property rule may (but not always will) be a better filter because one complaining state can bargain for compensation based on the worldwide effects of the policy.
|
25 Mar

[Emilie M. Hafner-Burton is a Professor at the School of International Relationship and Pacific Studies, IR/PS, at the University of California San Diego and Director of the Laboratory on International Law and Regulation. David G. Victor is a Professor at the School of International Relationship and Pacific Studies, IR/PS, at the University of California San Diego and Director of the Laboratory on International Law and Regulation.] Over the last decade there has been a surge in scholarship on the economics of international law (see Goldsmith & Posner, Posner & Sykes, Guzman and Pauwelyn). On almost every topic in international law—from the practical import of customary law to the repayment of “odious debt” to the laws of war—the economic perspective offers important insights into how international law actually works. At last there’s one book to introduce the basic concepts and illustrate their utility.  Law students and academics, alike, will welcome Eric Posner and Alan Sykes’ Economic Foundations of International Law. This new book will likely gain most of its readership in law schools, but for scholars the book’s greatest value may lie in helping to deepen communication between political scientists and lawyers who have been part of the “empirical turn” in research on international law. Posner and Sykes—and the method of economic analysis of law—will help political scientists disentangle the many ways that law affects behavior and actually measure those effects.  While quantitative empirical research will never reveal the full color of why states create and honor international law, this line of collaboration between lawyers and political scientists can help reveal exactly which types of international laws actually help states advance their interests and solve collective policy problems.
|
25 Mar

[Andrew Guzman is Professor of Law and Director of the Advanced Law Degree Programs at Berkeley Law School, University of California, Berkeley.] This is a superb book.  I say this without the slightest bit of surprise, as that is what one would expect from these authors.  In addition to the quality of the content, the book is all the more important because there is no comparable tour of international law from a law and economics perspective.  I have disagreements with some of the content of the book – it would be impossible to produce a serious book with respect to which other scholars were in total agreement – but this should now be a central part of the canon, not only of the law and economics of international law, but of international more broadly. It is perhaps a sign of a maturing discussion within international law that the book does not bother to include a discussion of why studying international law from an economic perspective is useful.  This area of legal scholarship has been slow to embrace analytical approaches and for many years anyone writing in that style felt the need to defend the methodology itself.  It would be wonderful if we have moved past that point. That said, it is worth noting that one of the benefits of an economic approach is that it encourages us to make clear our assumptions and models of behavior.  In so doing we more fully disclose our intellectual commitments which, in turn, allows others to challenge or build on our claims.  When we disagree, we can more effectively examine one another’s arguments and identify the precise points in dispute. In my brief comment, I would like to take advantage of this feature and build off of some of what Posner-Sykes say to make a point about international cooperation in general and, more explicitly, in the area of climate change.  I do not know if the authors would agree with my views, but the discipline imposed by an economic approach should, at a minimum, make clear why we disagree.
|
25 Mar

This week we're hosting a symposium on Economic Foundations of International Law, the new book by Eric Posner and Alan Sykes. Here is the abstract: The ever-increasing exchange of goods and ideas among nations, as well as cross-border pollution, global warming, and international crime, pose urgent questions for international law. Here, two respected scholars provide an intellectual framework for assessing these...

|
14 Mar

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke Law School.] I want to give my sincere thanks to the eight contributors who commented on my book this week as part of the Opinio Juris online symposium:  David Moore, Jean Galbraith, Julian Ku, Kristina Daugirdas, Bill Dodge, Mark Weisburd, Mike Ramsey, and Ingrid Wuerth.  Each of these contributors offered valuable feedback on aspects of the book, and I am extremely grateful for their insightful observations. The book covers a wide range of topics concerning the role of international law in the U.S. legal system, including the domestic status of treaties and customary international law, the validity of executive agreements, delegations of authority to international institutions, Alien Tort Statute litigation, sovereign and official immunity, criminal law enforcement, and the U.S. conduct of war.  At one time or another, I have written law review articles relating to most of these topics.  As the contributors to the symposium observed, however, the book is not an effort to re-argue positions that I have advanced in scholarship over the years.  Instead, I have attempted in the book to guide readers through the competing arguments in the relevant debates, while providing a general sense of how the law has evolved and where it stands at the present time. The book emphasizes considerations of constitutional structure, something that is now fairly common in scholarship relating to international law in the U.S. legal system but was less common when I began teaching and writing in the mid-1990s.  Another theme of the book is that when international law operates in the U.S. legal system, its role is often mediated by domestic laws and institutions.  This does not mean that international law is unimportant in the U.S. legal system, and in fact the book is filled with examples of the significant roles that international law can and does play.  But it does mean that the international law that is applied in the U.S. legal system has a distinctively American gloss.  The book further highlights how the U.S. legal system not only receives international law but also frequently contributes to it, on issues such as treaty reservations and sovereign immunity. The symposium contributors have addressed a number of specific propositions in the book.  Here are some brief comments on each of their posts:
|