Category: International & Comparative Law

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Peace vs. Justice or Peace & Justice: The ICC in Northern Uganda

Does international criminal justice promote the settlement of on-going conflicts or does it, in contrast, stand in the way of peace agreements? This question has become one of the most pressing in the fields of international criminal law and transitional justice. The debate is perhaps best illustrated in Uganda where in mid-2006, after a twenty-year civil war, the Lords Resistance Army (LRA), a rebel group that plagued northern Uganda with twenty years of violence, has become engaged in the most serious peace negotiations to date. In the eyes of some at least, the International Criminal Court (ICC) indictments against the LRA now stand in the way of a final peace deal.

Having just returned from a second field research trip to Uganda to investigate this tension between peace and justice, I thought I would use this entry to offer some preliminary thoughts that are the subject of a current work in progress. Specifically, I want first to address briefly the nature of the ICC’s impact on the conflict and the peace talks and, second, to suggest a possible means of achieving both peace and justice in Uganda.

By way of background, in December 2003, Ugandan President Yoweri Museveni referred crimes committed in Northern Uganda to the ICC. Subsequent to the Ugandan referral and an investigation by the ICC, the Court returned indictments against five LRA leaders. Soon thereafter, in late June 2006, the LRA expressed willingness to engage in a new round of peace talks with the Ugandan government. This latest round of negotiations quickly came to appear far more promising than any of the previous efforts. However, the LRA leadership has repeatedly stated that the withdrawal of ICC indictments remains a prerequisite to ultimate settlement. In late June 2007, the Ugandan Government and the LRA reached an agreement laying out the principles of justice and accountability for settlement of the conflict, which contemplated domestic proceedings with alternative sentences and possibly even the use of traditional justice mechanisms. Despite the flexibility with respect to justice and accountability indicated in the agreement, almost to the day, the ICC Prosecutor took an extremely firm line in a major public address in Nuremberg, Germany, essentially excluding any possibility that his office would seek to have the warrants withdrawn. In the words of the Prosecutor: “for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground. . . . These proposals are not consistent with the Rome Statute. They undermine the law that states committed to.”

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International Law and the New Russia

First, let me take this opportunity to thank Concurring Opinions for the opportunity to join as a guest blogger this month. I am looking forward to bringing a bit of international law (and perhaps international politics) to the blog over the coming weeks.

Having just returned from Moscow, I thought I would open my month of blogging with a few thoughts on international law and the new Russia. Russia today is challenging international law and, particularly the trans-Atlantic consensus of transparency, democracy, and human rights, in fundamental ways. It would appear that Russia is attempting to use its newfound power—largely derived from its oil and gas resources—to reshape the international legal system to its own benefit. It is high time that both international lawyers and politicians start paying attention to developments in Russia and looking for ways to constrain Russia’s newfound ambition and power.

A bit of history puts Russia’s place in the international political and legal systems in context. During the 1990s, Russia essentially collapsed inward. Governmental institutions were weak, the economy was a disaster, crime spiraled out of control, and the military was in shambles. The West and, particularly, the United States largely neglected Russia during this period, failing to mount anything close the post-WWII Marshall Plan, that could have brought Russia back into the community of democracies. US claims to victory in the Cold War and Russia’s exclusion from the power centers of Washington, London, and Brussels, left the Russian people with a deep sense of alienation and even humiliation.

Upon assuming the Presidency in 2000, Vladimir Putin set Russia on a new course aimed at reviving its status as a world power. Putin recognized that the consolidation of state power in the Kremlin and the development of Russia’s oil and gas industry could allow Russia to reassert its place on the global stage. A combination of ruthless will, strong-arm tactics, and an extraordinary increase in oil prices allowed Putin to realize these goals. He quickly consolidated state authority through what the Russians term “vertical power”, reducing the authority of regional governors, undermining the independence of the State Duma (parliament) and the courts, and establishing leading state-run monopolies in the natural resource sector. In so doing, he amassed extraordinary popular support among the Russian people who, for the first time in nearly two decades, find themselves with global influence—now derived from oil, not the Red Army—and, for the first time in nearly a century, are amassing wealth at unimaginable rates. As elections approach on March 2nd, the new Russia has extraordinary energy power and the will to use its newfound influence. Putin himself has a cult of personality that allows him and his anointed successor, Dmitry Medvedev, to wield that power almost exclusively as they see fit.

So what does the new Russia mean for international law?

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SWF’s

No, no. As much as my subject might look like titillating Instant Messaging (IM) short-hand used by the High School Musical set, it’s actually Sovereign Wealth Funds (SWF’s) that I have in mind.

In yesterday’s Wall Street Journal (requires subscription), Alan Murray reported from the World Economic Forum, on Sovereign Wealth Funds as the “it girl” at Davos this year. (Thereby displacing private equity from that role and, in the words of a private equity fund manager in attendance, “return[ing] [them] to the obscurity that [they] so richly deserve.”) As Abdul-Aziz Abdullah Al Ghurair, chief executive of one of Dubai’s SWF’s, dryly noted: “I’m surprised they are paying so much attention to us.” Paris Hilton, eat your heart out; Abdul-Aziz has arrived at the party.

Much has been made of Sovereign Wealth Funds’ substantial investments in major U.S. companies, including in numerous banks struggling amidst the subprime mortgage crisis. No less an analyst (and internationalist) than former U.S. Treasury Secretary and President of Harvard University Larry Summers is among those sounding alarms.

Two things particularly struck me about Murray’s report from Davos, though. The first was the fact that the second largest SWF, following the very prominent fund controlled by the government of Abu Dhabi, is the Government Pension Fund of Norway. Somehow, I couldn’t help but wonder whether the heat surrounding the rise of SWF’s would be quite as great, if the story line wasn’t about Arabs and the Chinese buying stakes in brand-name U.S. companies and banks, but Norway doing so.

The second was Murray’s point about the relative place of the United States in the global economy. Murray reports data from the McKinsey Global Institute, finding that $56.1 trillion (or one-third) of the world’s financial assets were held in the U.S. in 2006, but that emerging markets had experienced explosive growth, such that they had come to hold $23.6 trillion (by 2006). Looking at McKinsey’s own summary of the report, one finds more of the same. European financial markets had risen to a level just shy of the United States, at $53.2 trillion, but also have a higher growth rate. In part on account of the latter, the euro is “emerging as a rival to the dollar as the world’s global reserve currency.” The growth rate for the emerging markets, as suggested, also beat the U.S. rate.

Perhaps we really are reaching – eight years into the new century – the end of “The American Century.” Many have suggested a loss of U.S. global prestige and diplomatic influence in recent years. But perhaps the years ahead promise a similar decline in economic influence. Where once U.S. public and private entities bailed out distressed governments overseas, the last year has seen the rescue of struggling U.S. banks and other companies by government instrumentalities of Abu Dhabi, Dubai, and other sovereign states.

As Murray points out in his piece, this redistribution of wealth (and influence) is clearly good news for many in the world. And it is at least not obvious that it is overly harmful to Americans themselves. As far a rhetoric and self-perception go, however, we may be in for an interesting ride.

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The Future of Federal Courts

In an earlier post, I offered some modest praise of the AALS annual meeting, as a potential venue for legal scholars to explore topics of interest beyond their core research areas. In between my efforts to actualize that theory at the recent annual meeting, though, I also attended several sessions of quite direct interest.

Among the latter, one of my favorites was a panel organized by the Section on Federal Courts, on The Federal Courts and the International System. Besides Ernie Young, who served as moderator, the panel included A.J. Bellia, Curt Bradley, Henry Monaghan, and Trevor Morrison, as well as Sarah Cleveland, who was invited to speak for the “international law” crowd. (As Sarah pointed out, Curt is also an international law scholar, if not the designated internationalist that day.)

Much of the discussion focused on the many intersections of international law and federal jurisdiction in recent years, including the succession of enemy combatant/military commission cases, the Supreme Court’s OT 2005 decision in Sanchez-Llamas v. Oregon, and its impending decision in the fascinating case of Medellin v. Texas – a complex intertwining of international and federal courts law that only a law professor could dream up, and even then, only as an exam question. Naturally, the nature of customary international law as federal or state law was discussed as well, if only for a bit.

At Ernie’s prompting, though, the panelists also took up – in sometimes heated discussion – the necessary and appropriate content of the standard Federal Courts course, given the self-evident “internationalization” of the federal courts. To what extent, the panel explored, do international law, international courts, and international questions belong in the Federal Courts canon? Naturally, the Hart and Wechsler casebook – arguably the keeper of that canon – was a focal point for much of this discussion.

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Global Trends To Mitigate Local Special Interests: India and Antitrust

IndianSchoolofBusiness.jpgIndia has a booming economy and although China gets much of the press regarding new economic power, India is usually mentioned as right behind. Indeed, James Wolfensohn, former head of the world bank, has specifically argued that India and China will return to commanding a large portion of the world’s GDP. Thus when India recently tried to change or update its merger laws, the idea was to improve the law so it would keep pace with the potential for economic growth. The law as intended and the law as passed, however, seem to be quite different. The Deal reports that “The new law requires companies with as little as $126 million of assets in India, even if they are only subsidiary operations, to notify officials there of any acquisition from around the globe. Reporting the merger plans and waiting 210 days before completing the deal would be required even if the target is not located in India and doesn’t do any business there.” As such the ABA and several other attorney groups have contacted the Indian government to urge it to change the law which they see as a anticompetitive.

It is entirely possible that the law was not only went “in a different direction during the give and take in Parliament” but reflects some real concerns any developing country will have about corporate law. Those concerns are not clear in the article and should be taken seriously. But taken at face value this situation offers a view of a potential way to see how government may take advantage of international law or at least how global trade can influence the voices in a debate. In one scenario an administration may bow to local interests and protectionist impulses. It may then engage in international deals or even treaties. When the two conflict, the international treaty may demand that the local laws are harmonized and the previous law could change (There are of course many steps and debates to be had over the conflcits between international and domestic law. Still, intellectual property law offers an example of possibly using international norms to achieve one interest group’s (i.e. the copyright industry’s) objectives). This process is not necessarily laudable as the local interests may be undercut and the democratic aspect of lawmaking comes into question. Nonetheless, it is a way the process may proceed.

Alternatively, it seems that the outside voices may provide more information and perspectives regarding the true ramifications of certain laws. If so, the advantage would be that the government may move slower and have too many compromises based on internal pressures, but international groups indicating how they view the law at least ensures that the government has a better sense of the impact of the law at both the domestic and international levels.

image credit: Indian School of Business from WikiCommons

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Privacy’s Other Path: Recovering the Law of Confidentiality

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Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

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Regulating Private Military Companies

privatemilitary.jpgBlackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.

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Here’s a trivia question for you: What is soon to be the world’s first “carbon neutral” state?

Answer: The Vatican, which has just announced a partnership with Klimafa, a Hungarian start-up company, to help restore an ancient forest by planting trees on a 37-acre tract of land along the Tisza River in Hungary. The tract will be renamed, appropriately enough, the “Vatican climate forest,” and will reportedly offset all of the Vatican’s carbon dioxide emissions for 2007. The project is part of the Vatican’s ongoing efforts to “go green”, in keeping with Pope Benedict’s admonition to the international community to “respect and encourage a ‘green culture’”.

To my mind, this is a terrific example of the positive, creative role that emerging transnational public-private partnerships of all kinds can play in finding solutions to problems as intractable as global climate change. And this is a particularly intriguing example of a transnational public-private partnership, encompassing cooperative relationships between the Vatican, the Hungarian government, and private industry. As Elisabeth Rosenthal of the New York Times points out, this is a win-win for all concerned: The Vatican gets to set an example for the international community, and gets some great press for its efforts. Hungary (whose government scientists will be consulting on the reforestation project) gets abandoned, denuded land restored as native forest. The project will be great for the local “climate” (it will provide much-needed jobs in the area), and will have a beneficial impact (if only symbolically) on the global climate, as well. And last (but certainly not least, in my mind), the Hungarian start-up “gets the Vatican’s seal of approval and free publicity for its first project.”

Of course, the carbon offset idea is still novel and the subject of fierce debate among environmental law and policy experts – a debate that I am not even remotely qualified to take up. But I am intrigued by the emergence of transnational public-private partnerships of this kind: It strikes me as an extraordinarily important phenomenon, and one that has the potential to transform the way that international law and policy is created and implemented.

Does anyone know of academic research (legal or otherwise) being done on the emergence of these sorts of transnational public/private partnerships? I’d like to learn more about it.

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AALS Call for Papers: New Voices in Human Rights

From the AALS International Human Rights Law Section:

The International Human Rights Law Section is reminding interested individuals that it will repeat its popular “New Voices” program to assist faculty members and other scholars who have not previously had an opportunity to present a scholarly paper at an AALS annual meeting. The program will be Friday, January 4, 2008, from 10:30 a.m. to 12:15 p.m. This is considered by many to be a “prime time slot” at the AALS annual meeting, during which new scholars will summarize recent scholarship and academic works in progress. Individuals who are interested in being considered for the “New Voices” panel should submit an abstract of one to three pages describing their research or scholarship.

Abstracts of one to three pages of a topic for presentation should be submitted by Wednesday, October 10, 2007 to Mark E. Wojcik at The John Marshall Law School, 315 S. Plymouth Court, Chicago, IL 60604, or by email (preferred) at 7wojcik@jmls.edu. This is an extension of the previous deadline, which was September 26, 2007. Abstracts will be reviewed by a special committee and selections made for the final program presentation. We hope to maximize the number of possible presenters.

A completed paper is not necessary, only the abstract setting forth the main ideas of the presenter. The committee hopes that eliminating the requirement of submitting a finalized paper will encourage the submission this year of more “works-in-progress” and will also allow the final papers to incorporate comments and answer questions raised during the “New Voices” panel. This is expected to be a popular and supportive panel to promote human rights scholarship. Proposals chosen will have about 10 minutes to present their paper, to be followed by discussion of all the presentations.

Guantanamo in Second Life

As part of our Constitution Day program, Seton Hall Law School will be participating in metaversal simulation Second Life. The program “will be webcast in a virtual Guantanamo Bay detention center on Second Life:”

The virtual detention center was developed . . . by Nonny de la Peña, producer and director of the documentary “Unconstitutional: The War on Our Civil Liberties,” and Peggy Weil, professor of interactive media at the University of Southern California. “What we hope to create is a virtual platform where people from around the world can gather together to discuss important social justice issues,” said [Seton Hall Professor Mark] Denbeaux, who also is the author of the “Guantanamo Reports,” detailing the status of detainees at the military prison camp. “As an Internet-based virtual world, Second Life will allow us to conduct a broad and diverse debate on a wide range of political, legal and international issues.”

Some say virtual worlds are the future of online commerce, and perhaps online education as well. More information on how to participate available below. . .

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