February 9, 2012
On July 16, 2010, when the debt crisis that currently engulfs Europe was still beginning to take shape, I discussed the Implications of European De-Integration for International Law, in a short post on this blog. In the post, I predicted that the fiscal crises would have major implications for the future of European integration and that—unlike the original euro project—efforts to deal with the crisis “will not be the result of a popular policy preference, but instead will be the product of an external constraint on the ability of European economies to remain integrated without spiraling into chaos.”
Since the Summer of 2010, events have not taken a positive turn, and hopes of finding an easy resolution to the problem of rapidly increasing public debt in several Eurozone countries have deteriorated. It is now clear that the Eurozone as initially constituted is a failure, and will need to be revamped and remade in a new, and largely unrecognizable, form. Whether the future of the euro and Eurozone lies in radical integration or in disintegration at this point remains uncertain.
Some of the basic ideas in the original blog post have been fleshed out in an article that I published in Volume 17 of the Columbia Journal of European Law, entitled Implications of European Disintegration for International Law. The Article explains the structural problems with the euro system which make the current crisis so intractable, and also offers some lessons for international law more generally. From the abstract:
The European debt crisis that started in 2009 has revealed underlying structural problems in the European Monetary Union, threatening the viability of the common currency in its current form. An unraveling of monetary coordination in Europe would mark a significant event of disintegration, in the face of a decades-long trend of integration that was commonly considered an inevitable and self-sustaining process.
This Article argues that even a reasonable possibility of disintegration of this magnitude upsets previous theorizing about European integration which over-emphasized the EU’s “supranational” character.
More generally, disintegration poses serious problems for international law scholarship across the ideological spectrum, much of which has organized itself around the historically contingent trend of integration as if it were an a-historical given. The debt crises reveals that use of Europe by both “Skeptical” and “Cosmopolitan” international law scholars is largely an opportunistic rhetorical strategy that conceals fundamental weaknesses of both viewpoints in their debate over the limits and promise of international legalization and cooperation.
November 7, 2010
This week, Professor Lawrence Solum’s Legal Theory Blog features Vagueness and the Guidance of Action by Jeremy Waldron (NYU Law). The paper is relevant to this blog not only for its general discussion on rule of law values, but also because its final pages focus specifically on the U.S. torture statute. The abstract:
This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law’s application is concerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objections, using as a paradigm the “reasonable speed” statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way). (These questions are pursued partly in the context of Joseph Raz’s conception of authority.) I also consider issues about fairness and the possible chilling effect of using rules, taking my lead from comment of the court in State v. Schaeffer that it was precisely the intention of the Ohio statute in question to chill the enthusiastic and aggressive driving of (what the court called) “[t]he reckless, wanton speed maniac.” Finally some of the insights of this essay are applied to issues about the interpretation of statutes prohibiting torture, and the possible vagueness of those prohibitions.
October 12, 2010
JILP has awarded the Jerome A. Cohen Prize for International Law and East Asia to Professor Margaret Lewis (Seton Hall) for her article Controlling Abuse to Maintain Control: The Exclusionary Rule in China. The abstract:
In July 2010, the People’s Republic of China took the unprecedented step of implementing detailed, concrete rules on the handling of illegally obtained evidence. This reform was not prompted by a shift in political power, nor was it the result of an independent push from the judiciary. Rather, sixty years into the continuous leadership of the Chinese Communist Party, the highest ranks in government appear to recognize that endorsing an exclusionary rule can serve their interests in maintaining power. This Article argues that the PRC Government is adding a new chapter to the international diffusion of exclusionary rules as an authoritarian government that is harnessing the rule to bolster its legitimacy. Often touted as a means of enhancing “judicial integrity,” the exclusionary rule in China is better viewed as holistically addressing “governmental integrity.”
After situating reforms in China within the comparative criminal procedure literature by examining developments in the United States, Germany, Russia, and Taiwan, this Article turns to China and fills a gap in English-language scholarship, which until now has discussed the exclusionary rule almost entirely in the European and Commonwealth contexts. It analyzes how a confluence of domestic pressures complemented by international influences facilitated reforms in China and argues that, at present, the exclusionary rule appears more symbolic than revolutionary. In order for the new reforms to function as more than a mere symbolic integrity-enhancing device, assertive actors in the criminal justice system must gain a toehold and gradually move the rule from the realm of gloss to substance.
The prize is issued in honor of Jerome Cohen’s 80th birthday. (The full announcment is here.) Lewis’s article will be published in the spring issue of JILP.
September 14, 2010
Eric Posner (U. Chicago) will present a paper titled Human Rights, the Laws of War, and Reciprocity at NYU Law’s Hauser Colloquium this Wednesday at 2 p.m. The paper focuses on U.S. counterterrorism policy. It argues that the relative successes of the laws of war, as compared with the failure of the U.S. to comply with human rights norms, may be explained by the reciprocal nature of international law. It develops themes seen in much of Posner’s writing to date (e.g. here, here, and here), and should generate interesting discussion.
August 11, 2010
In a report issued this past May, the New York City Bar Association’s Council on International Affairs detailed the findings of a 9-member delegation to Beijing, China. The delegation, which made its visit during the previous December and which included NYU Professor Jerome A. Cohen, reported four primary concerns: 1) the Chinese legal infrastructure; 2) restrictions imposed upon human rights lawyers; 3) oversight by the All-China Lawyers Association; and 4) suppression of high-profile legal activity. Accordingly, its report portrays a saddening and complex legal environment that raises important questions.
The Chinese government exercises oppressive control over the country’s attorneys. For example, lawyers who represent human rights advocates and the underprivileged face police harassment and risk the revocation of their license to practice law. Additionally, lawyers are bound by the dictates of the All-China Lawyers Association (ACLA), which permits only “politically qualified lawyers” to handle sensitive cases. Moreover, a new Criminal Procedure Law imposes a three- to seven-year jail sentence for falsifying evidence and testimony. Prosecutorial abuse of this law has “created a chilling effect on criminal defense lawyers.”
Also problematic is domination by the Chinese Communist Party. It exercises tight control over judicial appointments, and is hugely influential in law firms and lawyer associations. But reaction this news must be tempered by the history of the Chinese legal system. The report explains that, after the founding of Communist China in 1949, the ruling party initially treated the courts as political tools. During the Cultural Revolution, lasting from 1966 to 1976, legal processes went unused. A legal infrastructure reemerged only after Mao Zedong’s death in 1976.
In light of this history, it may be more useful to react to the trajectory, rather than the current state, of China’s legal system. Indeed, there is reason to remain optimistic. Given that China’s legal system evolved from the Soviet mold, the fact that lawyers may represent politically-sensitive clients at all is critical. Similarly important is the fact that criminal defense and human rights law firms operate openly; China thus appears to have an internal engine for change.
Still, progress will only be sustainable if China’s legal professionals are willing and able to train subsequent generations of legal activists. Are students taught that legal advocacy is a service to the party? Or to society? Are the criminal defense and human rights law firms portrayed as quixotic outliers? Or as paragons of legal excellence? The report does not address these issues, and a subsequent mission concerning legal education is an important next step.
August 4, 2010
Sahib Singh of the University of Vienna has posted a paper on SSRN titled The Ethics of Fragmentation: Formalism’s Fallacies and the Potential of International Law. The paper is interesting not least because it takes a serious and critical work at the fragmentation report of 2006, prepared for the International Law Commission by Martti Koskenniemi. Singh’s paper investigates the work of a first-rate scholar closely affiliated with NYU Law’s Hauser Global Law School program, and for that alone it would be worth reading for NYU international law students. But Singh’s paper is fascinating because it investigates the tension between Koskenniemi’s personal work and the report. Abstract after the jump.
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June 20, 2010
NYU Law Professor Samuel Estreicher has posted an interesting working paper on SSRN, titled Privileging Asymmetric Warfare?: Defender Duties Under International Law. Here is the abstract:
Scholarship and advocacy needs to bring defender duties to the forefront of any discussion and investigation of armed conflicts. The necessarily joint contribution of attackers and defenders alike to civilian harm must be recognized. Any investigation of an armed conflict must focus on the duties of both parties and evaluate the feasibility of attacker compliance with some of the more open-ended obligations of international humanitarian law (IHL), such as the so-called duty of proportionality, as a function in part of the extent of defender compliance with its duties.
There are open areas in IHL. States that have acceded to Additional Protocol (AP) I are not necessarily bound by ICRC interpretations and they and states that have declined to ratify AP I can play an active role in formulating and urging others to adopt rules of practice that strike the right balance between attacker and defender duties. Even if, for example, there is widespread international recognition that, at some abstract level, the duty of proportionality is grounded in customary law, the content of that duty is not necessarily identical to the wording contained in AP Article 57. The effectiveness of such a duty, including the ability of military commanders to implement it in the air and on the ground, may well depend on serious consideration, elaboration and implementation of defender duties, for defenders are often in the superior position to minimize civilian exposure to the dangers of military operations.
Defender duties in armed conflicts is a neglected area of IHL. This needs to change if the overall mission of this body of law – minimization of harm to civilians – is to have any reasonable prospect of being realized.
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