Migrant Money: A Peek at How Migrant Labor Impacts Development

The NY Times ran an article about Dilip Ratha, who works at the World Bank and is an expert on migration, that raises some hard questions about the law and globalization. Mr. Ratha’s work has shown that the amount of money migrant workers send to their families in home countries is significant. His work was the first to document the amounts. They are significant: $300 billion. “His tallies, first published in 2003, showed that remittances, once dismissed as the equivalent of a rounding error, were nearly three times greater than the world’s combined foreign aid.” To give one example, Egypt apparently receives more money from remittances than from operating the Suez Canal. Of course, this finding has moved the issue to the forefront of development agendas. Mr. Ratha has recently been working on reducing the fees for such transactions and has sought to improve the way the money is used.

Not everyone thinks the money is well spent. According to the Times some are skeptical because “if migration brought development, Mexico would be Switzerland.” One professor, Devesh Kapur of the University of Pennsylvania, said “If I ask can you name a single country that has developed through remittances, the answer is no — there’s none,” he said. Others noted that this money rests on migrant exploitation and hides the impact on the families left behind.

Mr. Ratha acknowledges the justice and family issues. His point, however, is that the fact of migrant labor and the amounts of money involved are important and that given this reality something should be done to aid local development.

It seems that this view addressed the straw man of no country has developed through remittances. There seems to be a need to use that money to fuel productive growth in these countries. As Mr. Ratha notes for one thing the money is going right to people rather than bureaucracies and/or possibly corrupt government officials. Still some note that rather than sustained development projects these funds go to immediate needs such as food, clothing or less immediate things like a party.

So what is good development?

First it seems that feeding people more efficiently is a good thing. And insofar as consumption can be part of building a sustained economic system, consumption of the basic parts of living could be a good place to start. Now none of this view suggests that one should not build infrastructure. But the criticism seems to ignore what Mr. Ratha points to. There is a chance to take this money and have it work to improve situations around the world. Better local banking (the microbanking system may be an analogy here as it took time before people thought it could work), better investments, maybe even better guidelines or information about ways to direct the money’s use, could change the system in place. So someone may give money to help families afford food and the like and that may be the most they can do. Others may have the ability to give even more. A guide might show people how to microbank and teach families about simple but effective ways to use the money. It could also open ways for people to invest directly in a home town either on their own or with an NGO’s help.

The key is that the money is out there. It may be that society should ask whether the system that generates the money is bad and should be changed. If so, Mr. Ratha’s work reveals the size of the issue. But it may be that the practice will continue in some form. In that case, trying to find better ways for the money to be used well is just a good idea.

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Author: Atamari
License: Creative Commons Attribution ShareAlike 2.5 License

Posted by Deven Desai at 05:24 PM | Comments (5) | TrackBack

Missouri v. Holland, in Missouri

I spent the end of last week at the University if Missouri-Columbia, attending a great conference organized by Peggy McGuinness, on the (in)famous case of Missouri v. Holland. There, of course, Justice Holmes wrote for the Supreme Court, holding that Congress could enact legislation otherwise beyond its constitutional authority, in furtherance of a duly-enacted treaty obligation.

With a great line-up of panelists and a fascinating set of underlying issues to explore, we had what I thought was a fantastic day-and-a-half of discussion. In particular, and perhaps appropriately, we spent a substantial amount of time assessing the continuing significance of the decision, given the dramatic expansion of Commerce Clause authority since it was handed down in 1920. There is, of course, the "loaded-gun" notion that the very availability of the expansive authority invited by the decision constitutes a substantial threat. Likewise, one might question whether the Court’s decisions in Lopez and Morrison augur a potential revival of Missouri v. Holland as constitutional doctrine.

From my perspective, though, the most fascinating element of our discussions concerned the ways in which Missouri v. Holland might be significant, regardless of its jurisprudential force. I was struck, for example, by one participant’s recollection of an occasion on which U.S. treaty negotiators’ attempts to assert constitutionally grounded federalism constraints as a basis to resist a proposal by their foreign interlocutors were parried with invocations of Missouri v. Holland.

More broadly, I was interested to think about what continuing significance the decision has, for how we conceptualize the relationship of international, national, and state law. In the scheme of jurisdictional interaction exemplified by Missouri v. Holland, international law functions as a kind of trump card – an Ace available to the federal government to coerce state authorities. If Missouri no longer captures the political economy of U.S. federal-state relations, however, as I argue in my submission to the symposium, we might do well to reconsider that traditional conception of international law as a threat to state authority, and federalism more broadly.

Posted by Robert Ahdieh at 05:52 AM | Comments (0) | TrackBack

The Perils of Universal Jurisdiction

While generally a supporter of the concept of universal jurisdiction for trying grave international crimes (i.e. war crimes, crimes against humanity, and genocide), Spain's recent indictment of 40 Rwandan army officers on international criminal charges raises interesting questions about the appropriateness of trying such cases in the domestic courts of nations with little connection to the conflict from which these crimes arose. As an internationalist, it's hard for me to argue with the idea that the crime of genocide, war crimes, and crimes against humanity are so serious that its perpetrators are hostii humani generis -- enemies of all humankind -- and have thereby opened themselves up to prosecution wherever they may be found. But the practical implications of this Spanish case test the boundaries of this principle in ways that should be of concern to even the most die-hard advocate of universal jurisdiction.

First, the moral authority question. The charged Rwandans were not responsible for the 1994 Rwandan genocide (Hutus killing Tutsis), but for acts by Tutsi-led rebels who defeated the Hutu extremists responsible for the genocide. Certainly, these soldiers should be held responsible for violations of international criminal law in their efforts to end the overwhelming violence perpetrated in Rwanda -- but where was the Spanish army when the Hutus were slaughtering hundreds of thousands of Tutsis? Given the woeful failure of the international community to step in, it seems a bit rich to now be indicting the Tutsis who were left to their own defenses.

Second, the justice v. peace balance. While this may not be a zero-sum game (and indeed, justice may well increase long-term prospects for peace), these charges indirectly implicate President Paul Kagame, the sitting head of state in Rwanda, who led the Tutsi rebels charged by the Spanish court. Moreover, Judge Andreu, who issued the indictments, said that he had evidence implicating Kagame, but of course cannot use it because of Kagame's current immunity from prosecution. While I am no advocate of allowing war criminals to live in impunity because of their political positions, in a fragile democracy such as Rwanda, this cage-rattling could have serious implications for political stability -- especially given the ongoing conflict just across the border in the Democratic Republic of Congo. Given the severe costs of such instability -- in 1994, 800,000 dead in 100 days -- it's worth questioning the value of immediate justice, or at least trying to think about what the population of Rwanda might prefer.

Third, respect for domestic law enforcement processes. The Rwandan Foreign Minister, unsurprisingly, has slammed the indictments (which target the current head of the Rwandan Armed Forces and the Rwandan ambassador to India, among others), which may be no more than an effort to ensure impunity for his political allies. But the Spanish judge gives Rwanda's complaints some credence by failing to liaise with Rwandan judicial authorities to seek the officers' arrest but instead going straight to Interpol with international arrest warrants. If Judge Andreu had at least attempted to work with Rwandan authorities and been rebuffed, he would be able to defuse such arguments.

Finally, proportionality of connection to the crimes charged. While the murders of nine Spaniards are part of the charges, and with the disclaimer that I haven't seen the indictments, this seems a weak link on which to indict 40 soldiers. If these Rwandans are indeed responsible for war crimes, crimes against humanity, genocide, and terrorism, given that the victims of these mass crimes were also primarily Rwandan, it seems that there may be fora better suited to try them. Perhaps international and even regional accountability mechanisms move too slowly, but in order to ensure the legitimacy of efforts to bring to justice all those who have perpetrated grave international crimes, it may be better to proceed cautiously than to extend the doctrine of universal jurisdiction in tenuous cases. (cross-posted on IntLawGrrls)

Posted by Jaya Ramji-Nogales at 04:17 PM | Comments (20) | TrackBack

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.”

As an initial matter, it is worth pointing out that even if the ICC Prosecutor wanted to drop the charges against the remaining leadership of the LRA (at least two LRA officials have died since the indictments were handed down) he lacks the power to do so. The Rome Statute allows for the withdrawal of an indictment if it is in the interests of justice to do so after taking into account the interests of victims. For that to happen, however, the Prosecutor must request that the Pre-Trial Chamber withdraw the warrants and it is the Pre-Trial Chamber alone that ultimately has the power to do so. Given the current state of the peace talks and the internal politics within the ICC, that seems highly unlikely.

Those who critique the role of the ICC in Uganda argue that the Court’s indictments decease the utility of settlement for the LRA by ruling out the possibility of amnesty through the assurance of international prosecution. They claim that indicted rebels will be unwilling to settle if they know that, whatever the terms of the ultimate settlement, they will be hauled before the ICC. In fact, Joseph Kony, the LRA leader, often cites the experiences of Charles Taylor and Slobodan Milosevic as emblematic of the dangers of settlement in the face of international criminal prosecution. If this decrease to the utility of settlement were the ICC’s only effect on rebel movements, this claim might well be correct; the ICC might well be standing in the way of settlement and a choice would have to be made between peace and justice.

In fact, however, the ICC has a number of other impacts on the propensity of rebels to settle a conflict that suggests that the Court’s ultimate impact may be indeterminate and that it may not be necessary to choose between peace and justice. First, just as the ICC decreases the utility of settlement, it also decreases the utility of victory. Most rebels fight with the ultimate goal of state capture. However, for indicted rebels who have committed international crimes, such as the LRA, even victory will be accompanied by prosecution and accountability. Recall Charles Taylor’s less-than-graceful exit from the diplomatic meeting in Accra, Ghana after the Special Court for Sierra Leone unsealed its indictments against him. Hence, the ICC’s indictments also decrease the benefit of victory.

Second, the ICC increases the rebels’ costs of fighting the next battle rather than settling. Once rebel leaders have been indicted by the ICC, it becomes far more difficult and costly for them to obtain the weapons, resources, and support necessary to carry on the fight. In Uganda, for example, the ICC indictments have limited the willingness and ability of the LRA’s longtime backers in Sudan to provide material support to the movement, lest they be viewed as aiding indicted war criminals. Even the Congolese government, on whose territory the LRA have sought refuge, has shown a new willingness to cooperate in apprehending the LRA. As a result, the costs of fighting have increased for the LRA, as evidenced in part by a marked decrease in their attacks in northern Uganda.

Finally, ICC indictments can decrease the probability of the rebel’s ultimate victory. The decreased probability of victory flows in part from the increased costs of fighting noted above and also from the possibility of apprehension when warrants of arrest have been issued. In Uganda, for example, not only has it become harder for the LRA to score victories against the Ugandan government, but Joseph Kony also fears that black helicopters may descend on his hideout in Congo to apprehend him.

Taken collectively, the decreased utility of settlement, the increased costs of fighting, the decreased utility of victory, and the decreased probability of victory all impact on the decisions of the LRA as to whether to fight on or settle the conflict. Three of these effects—the decreased utility of victory, the increased costs of fighting, and the decreased probability of victory—have the potential to counterbalance the decreased utility of settlement that follows ICC indictments. Bold claims that the ICC makes settlement more difficult cannot, therefore, be sustained. The most that can be said is that the ICC’s impact is indeterminate and will depend both on the magnitude of the various effects at play and the particular indifference curves of any rebel leader. In Uganda, at least at first, it appeared as though the increased costs of fighting and the decreased likelihood of victory were dominant and the LRA appeared to be more willing to negotiate and perhaps settle because of the ICC indictments. More recently, it may be that the decreased utility of settlement in the face of ICC warrants is now the predominate effect. Hence, the LRA’s calls for withdrawal of warrants prior to final settlement.

While this analysis can not resolve the debate as to the ICC’s ultimate impact in Uganda, much less in other conflicts, it does suggest ways that the Court can better facilitate achieving both peace and justice. Those who call on the Court to withdraw warrants assume that in so doing the Court will increase the utility of settlement and allow for peace. They overlook the fact, however, that both the ICC and the Ugandan Government can do much to increase the costs of fighting and decrease the likelihood of victory, both of which also impact on the LRA’s decision as to whether to settle. There is presently considerable talk in Uganda about “pressurizing” the LRA to force them to accept settlement terms. The ICC and Uganda can continue to pressure Sudan to cease all support for the LRA. Likewise they can secure cooperation from the Congolese government and MONUC (the UN Mission in Congo) to apprehend the LRA. A recent agreement between Uganda and Congo providing a framework for joint military action is an important first step. In so doing, the ICC and the Ugandan government make it more difficult and costly for the LRA leadership to remain at large and should, thereby, increase their willingness to settle, notwithstanding the indictments against them.

Given the current posture of the LRA, that additional pressure may be insufficient to bring about settlement. However, the Rome Statute of the ICC provides for an often unrecognized means through which the utility of settlement can be increased short of withdrawing warrants and offering amnesty. Specifically, the ICC is a court of complementary jurisdiction; cases are inadmissible before it if they have been genuinely investigated or prosecuted by domestic authorities. Should Uganda undertake its own investigation and prosecution of Kony and the other senior LRA leaders, the ICC would be unable to proceed against them. Wisely or unwisely, Kony appears to find domestic proceedings against him more palatable than ICC prosecution. The framework agreement between the LRA and the Ugandan Government reached last June clearly expresses an openness to such domestic prosecutions, provided that “alternative sentences” are available. The key question presently under discussion at the peace talks in Juba, South Sudan is whether such a domestic proceeding can be designed that the LRA will agree to and that will satisfy the complementarity requirements of the Rome Statute that the proceeding be a genuine attempt to bring the perpetrators to justice. If such a proceeding can be designed, then it may be possible to achieve both peace and justice in Northern Uganda. That justice may not look exactly like a trial ICC and sentences may be reduced, but it would still entail meaningful accountability and open the door to peace.

Should an agreement be reached between the LRA and the Ugandan government that provides for domestic prosecutions, either the Ugandan government itself or one of the accused will have to challenge the admissibility of the case before the ICC. Ultimately, the Pre-Trial Chamber will decide if any Ugandan domestic proceedings are sufficient to meet the genuine prosecution requirements of the Rome Statute. The Chamber’s determination will have repercussions far beyond Uganda. Essentially, that decision will set the contours of acceptable domestic proceedings and the degree of flexibility open to State Parties to the Rome Statute to design criminal proceedings in a way that facilitates resolution of on-going conflicts. Ideally, any such decision will reaffirm the obligation to provide accountability, but also allow sufficient flexibility to states to achieve both peace and justice.

A subsequent posting will consider in more detail the next concrete steps that need to be taken to move toward settlement in northern Uganda.

Posted by Bill Burke White at 12:06 AM | Comments (5) | TrackBack

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?

First, the new Russia has shown a clear willingness to disregard international human rights and defy the institutions of human rights enforcement. Over the past few years, the Russian government has cracked down on the press, with the independent media being essentially squeezed out of existence. It has passed new laws regulating NGOs that make it virtually impossible for foreign funded NGOs to operate and allow unprecedented levels of government surveillance of NGO activates. It has orchestrated—unnecessarily—parliamentary and, next month, presidential elections essentially without opposition.

Indicative of Russia’s disregard for human rights and the failure of domestic institutions to constrain Kremlin excesses, is the fact that more than 20% of the current caseload of the European Court of Human Rights (ECtHR) comes from Russia. When Russia looses these cases, which it often does, the government seems happy to use some of its new oil wealth to pay Court imposed fines, but then defy the Court, refusing to change offending legislation and rarely allowing domestic courts to implement ECtHR rulings.

Perhaps most emblematic of Russia’s defiance of international human rights law may be the persecution, show trial, and inhumane detention of Mikhail Khodorkovsky, the former Chairman of Yukos and once Russia’s wealthiest and most powerful oil executive. After Khodorkovsky broke a tacit deal with the Kremlin not to interfere in politics by funding anti-Kremlin parties, he was arrested on tax evasion charges and convicted in what can only be described as a show trial, in which he was unable to present evidence, call key witnesses, or build a meaningful case in his defense. He has been serving a sentence in a remote corner of Siberia in truly inhumane conditions and his life has been routinely threatened. As Khodorkovsky would have soon become eligible for parole, the Kremlin is likely to ensure that he is convicted once again in a second sham trial on further tax charges in the coming months. His case is currently pending before the European Court of Human Rights, though Russia seems likely to once again disregard the Court’s ruling.

With Khodorkovsky relegated to a Siberian jail, the Kremlin has been quick to seize the assets of Yukos as part of its larger strategy to centralize and consolidate national energy resources. The company was bought in a highly questionable auction and, with the support of key western investment banks, subsumed into the state energy monopoly, Gazprom. Most recently, one of Khodorkovsky’s former colleagues from Yukos, Vasily Alexanian, also imprisoned on tax charges, has been denied AIDS treatment and may well die at the hands of the state.

Beyond Russia’s troubling human rights record, which alone could fill many blog posts, the new Russia is challenging international law in other ways. Russia is using its rapidly expanding power and, particularly, the power imbalances between Russia and smaller, weaker, energy-dependent states in Central Asia, the Caucuses, and Eastern Europe to build a new sphere of influence, both legally and politically. Over the past few years, Russia has sought to conclude new bilateral treaties and energy contracts with these states that give Russia considerable new clout and influence. Where such states refuse to meet Russia’s terms, the threat is no longer the Red Army, but rather the Gazprom engineers who, with the turn of a wheel, can shut off critical gas and oil flows. Not only do the structure and content of such treaties represent a challenge to the human rights and good governance multilateralism that has dominated post-Cold War international law, the underlying threat of suspended energy supplies requires international lawyers to rethink the meaning of the grundnorm of modern international law articulated in article 2(4) of the UN Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

In other spheres too Russia has shown a new assertiveness and willingness to confront head-on long-settled principles of international law. Last summer, for example, Russia landed a submarine on the oil-rich Arctic seabed. Though in part a media stunt, the Russian flag now flying under the Artic icepack has profound legal significance. Russia essentially seeks to revive the long extinct legal principle of terra nullius, according to which states could lay claim to “empty” lands by planting a flag. In so doing, Russia seeks not only to claim the sub-Arctic oil, but also to confront the legal principles in the UN Convention on the Law of the Sea relating to seabed resources and, perhaps, even take on the broader international legal rules governing the acquisition of territorial sovereignty.

By neglecting Russia during much of the 1990s, the US and Europe missed a critical opportunity to draw Russia into the modern institutions of international law and global governance. That failure, described by many Russians as “malevolent neglect,” has led to a new Russia that has both the ambition and power to fundamentally challenge the structure and norms of the international legal system. Both international lawyers and politicians in Washington, Brussels, and Beijing must urgently recognize the direction the new Russia is heading and its potential ramifications for international law and international institutions.

While we may hope for a change of course after Medvedev takes office in early May, we should not expect one. Putin will remain on the scene, at least for the foreseeable future, as Prime Minister. Moreover, the fundamentals of a strong central government, an ambitious and scorned population, and an extraordinary energy wealth will not change with an uncontested election. Rather, both the West and the East will have to embark on a dual strategy to contain the new Russia’s power ambitions—perhaps by following the wise advise of George Kennan’s 1946 Long Telegram—and, at the same time, seek to better integrate Russia into existent international legal and political institutions.

Posted by Bill Burke White at 12:09 AM | Comments (2) | TrackBack

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.

Posted by Robert Ahdieh at 07:38 AM | Comments (0) | TrackBack

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.

In essence, the question boiled down to the wisdom - and viability - of bringing international law and courts into the Federal Courts curriculum. The panel itself clearly had mixed emotions, with Henry Monaghan expressing the greatest doubts on both counts, if particularly on the viability of fitting it all in, and Curt Bradley perhaps most vocally in favor of greater inclusion.

I was particularly struck by Judith Resnik's question from the floor, though, which queried how a modern-day version of the course in Federal Courts could exclude international law and courts or, for that matter, tribal courts operating within the United States?

This seemed to resonate most with my own sense of the question. What, I wondered as I listened to the discussion, should we understand as the heart of a present-day course in federal courts? Ernie Young, in a forthcoming piece in the Emory Law Journal, which he delivered at a symposium on The New Federalism: Plural Governance in a Decentered World, an event co-sponsored by the Center on Federalism and Intersystemic Governance I co-direct at Emory, describes federal courts law as being about "managing jurisdictional conflicts and developing rules for remedies and choice of law." If so, with the growing number and influence of international tribunals, isn't the natural - perhaps inevitable - evolution of the standard Federal Courts course to bring them into the mix?

Posted by Robert Ahdieh at 06:43 AM | Comments (0) | TrackBack

Global Trends To Mitigate Local Special Interests: India and Antitrust

India 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

Posted by Deven Desai at 03:23 PM | Comments (0) | TrackBack

Privacy's Other Path: Recovering the Law of Confidentiality

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.

Posted by Neil Richards at 03:56 PM | Comments (0) | TrackBack

Regulating Private Military Companies

Blackwater 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.

Posted by Deven Desai at 06:31 PM | Comments (1) | TrackBack

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.

Posted by Melissa Waters at 07:26 PM | Comments (0) | TrackBack

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.

Posted by Melissa Waters at 12:30 PM | Comments (0) | TrackBack

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. . .

To view the program on Second Life, participants will need to create an account and go to “Gone Gitmo” at SLURL http://slurl.com/secondlife/IML/164/186/123 or simply plug in the Second Life coordinates: 164 186 123. Space to participate in the Constitution Day program on Second Life will be limited based on the specific capabilities of the Guantanamo Bay platform the day of the webcast.

I look forward to the proceedings. Note that universities in need of a Constitution Day program (or just seeking to supplement their own) can sign up for the presentation on this website.

Posted by Frank Pasquale at 01:29 PM | Comments (0) | TrackBack

The Countermajoritarian Difficulty, Turkish Style

Turkish politics are interesting. One of the largest Islamic countries on earth, it is -- by Middle Eastern standards -- an extremely stable and even moderately liberal regime. You wouldn't want to get too gushy about Turkey. They do all sorts of nasty things from time to time in the Kurdish regions of the country, for example. Still, they have regular and more or less contested elections and moderately smooth transfers of power from one party to another, not something that you can say about too many countries in their neighborhood. Things, however, are a bit more complicated than this. The recent election of Abdullah Gul to the presidency illustrates why. Gul is the standard bearer for the Justice and Development Party, a moderate Islamicist group. Back in the day, he was the foreign minister of an earlier Islamicst government that was deposed by a military coup. The question is whether the Turkish Army will now oust him from power.

The Turkish military does this from time to time. They see their role -- when not suppressing the Kurdish minority -- as safe-guarding the secular constitution set up by Kamal Ataturk after the fall of the Sultanate at the end of World War I. Accordingly, they feel fully justified from time to time in deposing duly elected governments that get too enthusiastic about political Islam. It is easy, of course, for Americans to get sanctimonious about such things. For all of the anxiety that some feel about the military-industrial complex, the American military does a pretty good job at maintaining political neutrality and subservience to civilian leadership. No one but conspiracy-theory wingnuts expects the Pentagon to mount a coup if they are unhappy with election results. How horrible, we say, that the Turkish military feels justified in thwarting the will of the people.

Except, of course, that we have our own undemocratic institution that can overturn the results of elections. Indeed, the Supreme Court has even been known to announce (admittedly not with great frequency of late) that its role is to insure that the American government doesn't get too religious. I wouldn't want to push the analogy too far; even the worst of Supreme Court decisions is not a coup, and losing litigants are seldom driven into exile abroad. Still, there is a very real sense in which our particular version of democracy rests on a powerful, countermajoritarian institution that we expect to place basic constitutional concerns above the will of people as expressed in elections. The Turkish Army, it seems to me, performs a very similar role in the Turkish polity, providing a technocratic elite supposedly committed to the maintenance of the political order.

The interesting question, of course, is to ask why we might prefer a technocratic elite of lawyers rather than soldiers to perform this task. Neither are actually trained as philosopher kings, although arguably law provides better training for high-politics than does, say, the study of logistics. On the other hand, courts tend to be rather neutered institutions, as is illustrated by our own history. One suspects, for example, that back in the day, the Cherokees might have preferred to have the U.S. Army on their side rather than the Marshall Court. The problem is even deeper today, where constitutional courts in much of the developing world are pretty impotent creatures. Does anyone think that Mubarak in Egypt, for example, would step aside if the Egyptian Supreme Court were to declare his opponent in the last show election the lawful winner? Still, I can't help but thinking that the expectation of military coups breeds bad political habits, whatever its constitutional virtues might be. It is worth noting, however, that it is trying to fufill a certain constiutional role that Americans tend to assume lies at the heart of liberal democracy: constraining democratic majorities with constitutional norms.

Posted by Nate Oman at 09:58 AM | Comments (5) | TrackBack

Beware the Teenie Weenie: Social Norms and Expressive Culture

I've been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I've also come across some pretty weird stuff, like this story from the German media about a children's book deal that fell through. A famous German children's book author was trying to get a book deal to publish a translated version of her illustrated children's book in the US. Unfortunately, the deal didn't happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we're really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people's decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What's the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren't published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children's literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.

Posted by Neil Richards at 09:44 AM | Comments (4) | TrackBack

"Bad Thai cops to endure Kitty shame"

This one was just too good to pass up -- both for the headline, above, and for the story itself. From the Associated Press:

BANGKOK, Thailand - Thai police officers who break rules will be forced to wear hot pink armbands featuring "Hello Kitty," the Japanese icon of cute, as a mark of shame, a senior officer said Monday.

Police officers caught littering, parking in a prohibited area, or arriving late — among other misdemeanors — will be forced to stay in the division office and wear the armband all day, said Police Col. Pongpat Chayaphan. ...

The striking armband features Hello Kitty sitting atop two hearts.

"Simple warnings no longer work. This new twist is expected to make them feel guilt and shame and prevent them from repeating the offense, no matter how minor," said Pongpat, acting chief of the Crime Suppression Division in Bangkok.

"(Hello) Kitty is a cute icon for young girls. It's not something macho police officers want covering their biceps," Pongpat said.

Indeed.

Posted by Melissa Waters at 10:20 AM | Comments (1) | TrackBack

Piercing the Veil of Anonymous Bloggers

I'm delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, "there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach."

Personally, I don't need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a "show me your papers" internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model -- as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above -- and you really should see it -- you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

Second, I am pretty confident a law like South Korea's would be unconstitutional here. There is a clear right to anonymous speech under McIntyre v. Ohio Elections Commission. An influential district court case from 1997 (the web's early days) relied on McIntyre to strike down as overbroad a Georgia law banning pseudonymous internet communications. (This is one of many cases the ACLU has brought in defense of internet anonymity.)

Finally, there are many technical methods to increase the chances of remaining anonymous online, such as using proxy servers or onion routing. (Ethan Zuckerman summarizes them in this guide aimed at dissidents and published by Reporters Without Borders). A demand for a real name and ID number makes these tactics somewhat harder to use, but certainly not impossible for a determined anonymity-seeker. The result: while most of us who follow the rules would lose the realistic capacity to stay anonymous online, the truly dedicated cyberbully, slanderer, harasser, or spammer can still remain in the shadows. Indeed, it's not clear to me that a legal requirement to offer a (phony) name and ID number adds any real teeth against those with the knowledge and incentive to remain anonymous.

Without question, many in the US abuse online anonymity. They can cause real harm. So, are we just stuck with these abuses as the price we pay for free speech? Not entirely. There are more modest remedies available, and they are pretty much in place already. For one thing, individual sites are free to allow more or less anonymity as they see fit. Many ban anonymous comments. Many others, if they allow screen names or pseudonyms, still require registration. Lots of sites also guard against the prevalence of "Internet sociopaths and misogynistic freaks" by moderating their comments.

More fundamentally, in situations where a site does not choose to do any of the above, there is the John Doe subpoena. A complaint that states a reasonable claim against John Doe defendants for unlawful online speech usually will result in a judicial order that a web site or ISP provide available information about the speaker. Generally that information will include at least an IP address, and often the full name and postal address. Such data has been plenty for the recording industry and the government to identify defendants and proceed against them. I predict a similar outcome in the AutoAdmit case. (Indeed, Concurring Opinions' own Frank Pasquale recently found his name in use as a pseudonym for a blogger running a gripe site critical of a health care company; in that case the court has allowed the plaintiff to "pierce the pseudonymous veil" and discover the blogger's identity.) We may need some better procedures for discerning when such "piercing" on the basis of a complaint is appropriate, but I believe this doctrine will develop, just as it did in "corporate veil" cases. In that sense, we are evolving toward a model that allows pseudonymity, but rarely true anonymity.

That may not be so different from South Korea's approach in most cases. As I understand the new law there, large web sites must collect the information, but need not turn it over unless the victims sue. Except for a somewhat stronger mandate for collecting information, that is pretty similar to the John Doe subpoena. And since such subpoenas appear to have proven adequate in the US to identify speakers in most cases, this may not be as important in the real world as it first appears. That said, to the extent there are differences, leaving some breathing room for anonymity is a better fit with our free speech traditions.

Posted by William McGeveran at 04:42 PM | Comments (2) | TrackBack

The Right to Food

[Another dispatch from Rome.]

Yesterday, we visited the UN's Food and Agricultural Organization (FAO), based near the Circus Maximus. The FAO's legal staff was gracious enough to give Temple’s students and faculty a presentation on their work, along with tips on how to get into international legal work.

The presentation and idea I found most interesting was the FAO's advocacy on behalf of the (so-called) human right to food. The FAO (and the considerable scholarship on this topic) derive the right largely from the International Covenant on Economic, Social and Cultural Rights (ICESCR), particularly Article 11:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent . . .
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

In response to a student question, the FAO's lawyers acknowledged that this right is not presently internationally justiciable. Instead, in the words of the FAO's strategic plan, advocates for the right should "support initial national implementation of the right to food and the Guidelines."

This bootstrapping strategy is common, I think, in campaigns to advance international human rights norms. And it may succeed, at least in some jurisdictions. But it struck me that the ICESCR is an awfully thin read to found a political program as vast as the right to food. Why not similarly push the right to clothing? Now I know that there are other documents doing work - like the 1996 Rome Declaration - but the rhetoric here is simply not commensurate with the founding text. I’ve only begin to look at this topic, but it seems a bit like advocates for the legal status of a right against hunger believe that oft-repeated slogan “The right to food is a human right!” has its own normative force.

Are there particularly thoughtful articles I could read that trace the development of this campaign, and which ground it in something other than a natural rights tradition?

Posted by Dave Hoffman at 03:25 AM | Comments (6) | TrackBack

Can Boeing Make the U.S. Government Pay Up?: Human Rights Litigation and “Who Pays” Arbitration

Last week, the ACLU filed a federal lawsuit against a subsidiary of Boeing Company, on behalf of alleged victims of the U.S. government’s “extraordinary rendition” program. The lawsuit, filed under the Alien Tort Statute, claims that Boeing’s subsidiary knowingly aided the CIA in transporting terror suspects to secret overseas locations, where they were tortured. The ACLU did not name the U.S. government itself as a co-defendant in the suit, presumably because it feared that the U.S. would successfully plead some sort of governmental immunity as a defense, and that Boeing might be able to free ride on that defense.

The ACLU’s strategy – go after the corporate accomplice, and leave the government perpetrator out of it – is increasingly typical of human rights litigation under the Alien Tort Statute and its sister statute, the Torture Victim Protection Act. Frustrated in their attempts to hold U.S. and foreign governments themselves legally accountable for abuses, human rights lawyers have increasingly turned their sights on multinational corporations who “aid and abet” governments in committing human rights abuses. (According to business groups who track these suits, claims against corporations now make up roughly 75% of all lawsuits filed under the ATS and TVPA.)

Not surprisingly, this state of affairs has transformed corporate lobbying groups into mortal enemies of the Alien Tort Statute – but thus far, their efforts to kill the ATS have yielded little. Congress has declined to repeal or amend the ATS to protect corporate interests, and the Supreme Court has left the ATS door open to suits against private actors.

Would corporations be better off abandoning their “kill the ATS” strategy altogether, and instead seeking a kind of compromise with human rights groups? Should they refocus their efforts toward shifting the blame – and the litigation costs – to the state actors who perpetrated the human rights abuses in the first place? That’s the question posed by Roger Alford in an intriguing article, "Arbitrating Human Rights" (forthcoming in Notre Dame Law Review). (You can download it here.)

The problem, as Alford sees it, is that all too often, “human rights litigation against corporations is a proxy fight in which the accomplice is pursued while the principal evades punishment.” He (rightly, in my view) questions a state of affairs in which the corporate accomplice alone bears the cost, while the primary malfeasor – the state itself – escapes liability.

Alford’s proposed solution? Corporations should look to the fine print in their existing contracts with sovereigns. Contracts between corporations and sovereigns typically include provisions regarding waivers of sovereign immunity and arbitration. Alford asserts that a corporation found liable for aiding and abetting human rights abuses should invoke these provisions to pursue a “who pays” arbitration claim against the sovereign itself for contribution or indemnification.

He points out that in the domestic context, joint tortfeasors may sue the U.S. government for contribution under the Federal Tort Claims Act, even where a suit against the government by the injured party itself would be barred by sovereign immunity. He argues that this principle should be extended to encompass lawsuits against foreign sovereigns under the Foreign Sovereign Immunities Act, as well.

Alford also points out that a “who pays” arbitration strategy is not only useful for corporations attempting to shift the costs for existing ATS lawsuits. It can be used preemptively, as well, by corporations who are good corporate citizens, who want to contract for compliance with basic human rights: They can draft contracts that include “who pays” arbitration schemes to encourage their vendors and suppliers to comply with human rights obligations. Alford makes a convincing case that by “including human rights as a substantive contractual obligation and arbitration as a procedural guarantee, corporations can establish a firm basis for contractual enforcement of human rights.”

In my view, the real advantage of Alford’s “who pays” approach is its flexibility in reallocating responsibility for human rights abuses from corporate accomplice to sovereign malfeasor. As Alford points out, in some cases, a corporation will be able to seek total indemnification from the costs of an ATS lawsuit, essentially invoking the benefit of the contractual bargain it struck with the sovereign. In the case of contribution claims, an arbitration proceeding will result in shared liability that allocates the costs according to the level of wrongdoing of each of the parties. Thus “arbitrating the question of who pays closes the loop in those cases that essentially are proxy claims that would have been brought against the sovereign if they could.”

In short, Alford's proposal is an intriguing attempt to turn human rights litigation into a more effective, two-step process that would offer real benefits to human rights victims. A