Friday, June 10, 2005

Why Withholding UN Dues Makes No Sense

Suzanne Nossel over at Democracy Arsenal has posted this excellent analysis about why the US House of Representatives' current move (voted out of the International Relations Committee Wednesday) to condition or withhold US dues to the UN will be counter-productive. It includes a lot of detail about the US dues crisis of the late 1990s and how then-US Ambassador to the UN Richard Holbrooke used what we lawyers like to call "creative problem solving" to reach compromise with the Hill and the United Nations. Kofi Annan has put a pretty full panoply of reforms on the table for this September. And the bill, as Nossel notes, repeats many of the already sound reform proposals being discussed in New York. Her take:

The problem with the newly approved legislation is that it requires withholding of 50% of U.S. assessed dues to the UN unless the requested reforms are implemented. But the breadth and depth of the reforms are such that its almost impossible to imagine that all will be quickly or completely agreed. The result is that after a four year truce with the UN over finances, the U.S. will once again start accumulating substantial new arrears.

This is a bad mistake, and one that the Bush Administration rightly insists must be corrected. The U.S. can be effective in negotiating reform without holding the UN to ransom. John Bolton proved that when he got the organization to rescind its Zionism is Racism resolution in 1991. He prides himself on having accomplished this through aggressive diplomacy, not by withholding U.S. dues. The implementation of the 2000
Brahimi recommendations involving far-reaching reforms to UN peacekeeping was likewise accomplished without the threat of withholding U.S. dues.

Let's hope the administration prevails on this one. And for those keeping count, annual dues of the US to the general budget of the UN are in the neighborhood of $450 million (compare that with, say, the almost $300 billion the US has spent so far in Iraq).

Thursday, June 09, 2005

Speech That Outrages Modesty or Ridicules Immodesty

I have long found it curious that those who favor constitutional comparativism often fail to appreciate the particular cultural distinctives that imbue different legal systems. It is rare that comparative scholars will outline those differences, many of whom wish to deny that they exist or diminish their importance.

It was therefore of great interest to me today when I came across a fascinating line of Indian Supreme Court cases that impose criminal sanctions on sexually suggestive speech. Article 509 of the Indian Penal Code provides that “whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.” Last year the Indian Supreme Court reaffirmed the test for outraging the modesty of a woman to include “any act done to or in the presence of a woman” that is “clearly suggestive of sex according to the common notions of mankind.” Mahale v. State, 2004 AIR (SC) 1677. This test was used by the Bombay High Court to acquit a defendant who made insulting remarks to a woman, but only because those remarks were not sexually suggestive enough and therefore did not “violate the concept of feminity.” Kshirsagar v. State, 1991 CLJ 410. There is no discussion in any of these cases regarding a constitutional right to free speech, which is not surprising given that that right in Article XIX of the Constitution expressly permits the State to impose “reasonable restrictions … in the interests of … public order, decency or morality…”

Coincidentally, today I also happened upon a book review of Judges in Contemporary Democracy edited by Justice Stephen Breyer and Robert Badinter, former President of the Constitutional Council of France. See 80 NYU Law Review 694 (2005). The book review includes an excerpt of a dialogue between Ronald Dworkin and Minister Badinter addressing the question of when a French judge may restrict political advertisements that ridicule a political opponent:

DWORKIN: …[Y]ou cannot accuse your opponent of a crime. But can you show a picture of him picking his nose?

BADINTER: No, no, that would not be appropriate.

DWORKIN: What stops that?

BADINTER: That would be the judge.

DWORKIN: Now, under what regulation?

BADINTER: The general statute on defamation and ridicule.

DWORKIN: But this is not defamation. There is no lie; there is no falsehood. You are simply using your time to show an ugly picture of your opponent. . . . Is there anything in a judge's power that can stop this kind of ad?

The dialogue concludes with Dworkin and Badinter conceding that ultimately cultural differences anchor the legal differences. Badinter was of the view that the American approach to political advertising was “horrible” and “shocking.” Many Americans may well agree, but would find the French system of prior restraints on political speech even more offensive.

Query what utility these two experiences from India and France offer the United States in defining its free speech protections. Speech that outrages the modesty of a woman or ridicules the immodesty of a politician should be subject to prior restraint or even criminal sanction? I frankly can find very little utility in these comparative experiences. They simply underscore the cultural divide. I’m not suggesting they are necessarily wrong for India or France. But they would be lost in translation if they were borrowed for comparative reference.

Which raises the larger question of whether it is better to try to find a common consensus on what is acceptable speech or is it better to simply admit that sometimes on some things different cultures are so foreign that "common notions of mankind" do not exist and should not be pursued?

Darfur Update: ICC Opens Investigation, NATO to Support African Union Troops

I am back on the blog after some out-of-town travel and have been reading with great interest Roger Alford's dispatches from India. Welcome, Roger! I've also been catching up with developments this past week. On June 6, the ICC Chief Prosecutor announced that the ICC would officially open an investigation into the situation in Darfur. This comes after the Security Council referral of the Darfur situation to the ICC in March. The ICC has, apparently, based its decision to investigate on the report issued by the International Commission of Inquiry on Darfur earlier this year. That report, you may recall, concluded that the ongoing atrocities there did not constitute genocide, but did meet the definition of "crimes against humanity."

Earlier today, NATO agreed to lend logistical support (mostly in the form of airlifting troops from West Africa to Sudan) to the African Union, which is planning to double its troop presence in Darfur in the next month. This is no substitute for a NATO force, but is a small step in the right direction.

We have blogged a great deal about Darfur over the past few months, including here, here, and here. I have advocated for stronger humanitarian intervention -- including a NATO-led force -- and have been skeptical of the value of pressing for prosecutions prior to resolving the ongoing conflict and stopping ongoing crimes. I'd like to be wrong about that.

Along with the Uganda case, the Darfur investigation (one, interestingly, not opposed by the United States after it allowed the UN referral) will be an important test of the viability and potential future value of the ICC. And the NATO agreement will be a test of the seriousness with which the outside world takes the commitment to stop crimes against humanity. As we often say at Opinio Juris, stay tuned.

Wednesday, June 08, 2005

If The World is Flat...

New York Times columnist Thomas Friedman, in his new book The World is Flat, argues that the global playing field is being leveled and that as a result the world is now flat. He argues that, “it is now possible for more people than ever to collaborate and compete in real time with more other people on a more equal footing that at any previous time in the history of the world…. [W]hat [this] flattening of the world means is that we are now connecting all the knowledge centers on the planet together into a single global network which … could usher in an amazing era of prosperity and innovation.” (p. 8).

Among the forces that Friedman argues is flattening the world is outsourcing. He discusses at length the impact of outsourcing manufacturing and service jobs to India and China. Friedman argues that “no matter what your profession – doctor, lawyer, architect, accountant – if you are an American you better be good at the touchy-feeling stuff, because anything that can be digitized can be outsourced to either the smartest or the cheapest producer.” (p.14).

During my time here in India I have thought quite a bit about Friedman’s argument that the world is now flat and that American legal service providers risk the outsourcing of their work to smart and cheap labor abroad. But far from being outsourced, it strikes me that there is a remarkable opportunity for American lawyers to engage in “reverse outsourcing.” Many jobs that could be done locally in foreign countries could also be outsourced to American lawyers. Put simply, for matters such as international human rights litigation, American lawyers are among the smartest and cheapest producers of this commodity in the world. Among the smartest because we have a sophisticated bar that has been at the vanguard of developing human rights litigation. Among the cheapest because this bar includes the (i) pro bono practices of major American law firms, (ii) the contingent fee practices of the plaintiffs’ bar, (iii) the legal work of human rights NGOs and law school clinics, and (iv) the invaluable input of professional academics. All of these service providers do their human rights work for virtually nothing. They are very smart and very cheap.

Thus far, most of their energies have focused on providing legal services to the American legal market. But they could be more effectively tapped by interested groups in foreign markets. In short, now that the world is flat, foreign consumers of this commodity could outsource a part of their human rights work to smart and cheap legal labor in the United States. To give you a concrete example, if a human rights group in India were interested in outsourcing legal services to the United States, they could readily do so. This includes not only questions of international law, but also the analysis of Indian law, which is as readily available to clinical law students in the United States as it is to Indian lawyers in Chennai. All major Indian cases are reproduced in one reporter series, the All India Reporter, available in most libraries and digitized on one affordable website, http://www.indlaw.com/. If they were interested in securing answers, a wealth of interested human rights groups would be happily willing to assist them. To the extent human rights law can be digitized, much of it can be outsourced to a smart and cheap labor pool in the United States. Friedman may worry that his tax returns will one day be prepared for virtually nothing in Bangalore. I am fascinated by the prospect that Indian sex trafficking laws could be researched and briefed for virtually nothing by attorneys in Baltimore.

Another force that Friedman discusses that is flattening the world is open sourcing. (p.81) He describes open sourcing as self-organizing collaborative communities in which either reputation or knowledge-enhancement is the reward. It is peer-reviewed and relies upon only trusted sources. Each contributor in open sourcing usually will offer his own minor contribution -- a “patch” -- that fills a particular void or addresses a particular deficiency in the system. Linux and Apache software are preeminent examples of open sourcing. Open sourcing has expanded to other communities, such as a group of scholars who have created a free, community-edited, online encyclopedia at http://www.wikipedia.com/. (p.95).

It strikes me that open sourcing is a force that the international legal community could utilize with much greater gusto. For example, if one were to view the human rights bar as a self-organizing collaborative community, one could develop answers to complex problems through open sourcing. If an Indian human rights lawyer is writing a legal brief on what constitutes slavery under Indian law and he has reason to believe that reference to Pakistani, Sri Lankan, English, or Canadian law might be useful to the brief, he should be able to request a legal “patch” and easily secure the answer. This patch provider does not necessarily have pre-knowledge of the answer, but he may be trusted to discover and deliver it. Perhaps specialized legal blogs are the beginnings of such open sourcing, although they rarely are used to provide legal “patches” in the manner I have described.

Outsourcing and open sourcing are forces that could change the way certain types of legal services are provided. Of course, these approaches are wholly inappropriate in many contexts. But if I am a struggling lawyer in India who would like to help a human rights victim who has a question that is morally challenging but pecuniarily insignificant, one would think that he should be able to outsource or open source the issue. And if the legal world is flat, he should be able to use these forces to secure an answer.

Tuesday, June 07, 2005

Reconsidering the Reconsideration of the ICJ

There have been numerous posts on Opinio Juris concerning how it may be time to reconsider the role of the ICJ. One recent comment to the blog and another “out in the real world” provide a good counterpoint to this whole discussion.

Dr. Cesare Romano of NYU has posted an insightful comment to an earlier post on whether the ICJ needs reform. Given the interest in statistical analyses of the behavior of international tribunals, Romano does a nice bit in showing that, numerically speaking, the ICJ’s caseload is actually where you should expect it to be, given that its only potential clients are States suing each other. Perhaps then, we should be a little less concerned with how many cases the ICJ has than what it actually does with them.

Let me toss in another perspective I heard recently at a conference. One international lawyer who has a very active practice before the ICJ has quipped that as a court the ICJ is not very successful but as a legislature it is quite good. He argues that there are other international tribunals, such as the WTO Dispute Resolution Mechanism, that do much better jobs at resolving contentious cases. As has been observed here, the ICJ’s cases tend to take a long time to get resolved and many of them are somewhat “cold” even when they get to the ICJ. So, as a means of resolving a heated dispute, the ICJ isn’t especially strong.

But, according to this argument, the ICJ is better understood as a de facto legislature, anyway. The international system, unlike national systems, does not have an agreed-upon law-making body. There is no World Congress with legislative authority (the General Assembly passes non-binding resolutions and although the Security Council passes binding resolutions, the argument that it is a “legislature” raises a lot of hackles).

The ICJ, however, decides cases that often change the shape of international law (on everything from status of international organizations to how treaty reservations work, from how to delimit maritime boundaries to the rules for assisting insurgencies). The cases may be relatively few but their result is like legislation: reframing the rules in a given area of law. Technically, of course, a ruling of the ICJ is only binding between the parties but in fact decisions are not treated this way. And add to this the capacity of the ICJ to issue advisory opinions on broader legal questions and the result begins to look more legislative.

In considering this argument, one DC lawyer later noted that legislatures tend to do their jobs better when dealing with technocratic policy issues that some legslators have spent time mastering and yet hasn’t become overly politicized. Then law and policy, rather than politics, tends to be hashed out. But the high voltage political issues short circuit Congress and instead of discussion and deliberation you get rhetoric and recrimination.

Now consider the ICJ and technocratic issues (maritime boundaries, the rules affecting international organizations, border disputes) and its record is one of the careful elucidation and extension of international law in a way that is generally accepted by the States, as evidenced by their own subsequent practice. But when you ramp up the political quotient (the Israeli/Palestinian Barrier Case, for example) the result makes the ICJ seem less like a hallowed institution and more like a talking-shop whose results are easily dismissed as overly politicized, unrealistic, and irrelevant.

So is the ICJ actually the world’s legislature? Well, no, no one is actually saying that. But its evolving role may be better understood as more akin to a de facto law-making body than as a dispute resolution mechanism.

Spurred by these two (not necessarily consistent) perspectives, I think we should reconsider how we reconsider the ICJ.

Freed from Bonded Labor

According to the ILO, today in the world there are 20 million people (i.e., the population of Texas) who are currently in bonded labor. Bonded labor is a variation of forced labor that is little discussed and only vaguely understood by most Westerners. In its typical manifestation, bonded labor occurs when credit is advanced to an impoverished person and then he and his family work until they have paid off the debt. But with bonded labor, they almost never do. The employer pays far below minimum wages and issues new advances for “expenses” and “interest.” Underpaid and overcredited, these employees are locked into years of involuntary servitude. Bonded labor is a violation of international law and India’s Bonded Labour System (Abolition) Act of 1976. Under Indian law, the government will criminally prosecute the employers, cancel any debt of a bonded laborer, and compensate each bonded laborer 20,000 rupees ($460).

Today I joined caseworkers from IJM to visit dozens of former bonded laborers now living in small villages in the states of Tamil Nadu and Andhra Pradesh. These lower caste members (formerly called untouchables) all had served years as bonded laborers for rice mill owners. One family we met today had accepted an advance ten years ago from a rice mill owner to pay the dowry for her wedding. The cost of the advance was 6,000 rupees ($137). Her family of four then became bonded laborers and worked in the rice paddies 12 hours a day, six days a week for the next ten years to pay off the debt. They never did. At the time they were released last year, the family “debt” had quadrupled to 26,000 rupees ($600).

In another village, a small thatched-roof shanty in a remote part of Tamil Nadu, we met with over 50 children in a one-room school house. Until last year these children were “generational bonded laborers,” having spent their entire lives with families in bonded labor. With the government’s compensation of $460, and the supervision of IJM caseworkers, these former bonded laborers are buying tiny plots of land, building small permanent houses (4’ x 6’ one-room brick houses for a family of four), purchasing cows for revenue, insuring their investment ($3 annual premium per $200 cow), handling money for the first time, opening a passbook bank account, and taking steps toward educating their children. When we met with them they thrilled at small pieces of chocolate, sang songs to welcome us, and were transfixed at the site of their blond-haired, blue-eyed guests. When I asked how many of them liked going to school, every single child raised their hand. They particularly enjoyed the site of their own images on digital camera. These families now look forward to a less bleak future in which the revenue from cows’ milk will provide them up to $1,000 a year, just enough to live on.

Obviously there are problems with implementation of the Indian bonded labor compensation scheme, as Human Rights Watch has noted. But there also is a problem with the way we traditionally envision the work of international lawyers in securing human rights. Typically one does not associate human rights lawyers with facilitating the enforcement of domestic statutory rights for guaranteed government compensation in far-flung countries. But that’s exactly what IJM caseworkers are doing. And more of us should be and could be doing more of it. Which is the topic of tomorrow’s post.

Monday, June 06, 2005

Reply to Borgen

I think you will get conflicting views on your question. My hunch is that as a general rule the lawyers litigating human rights cases in Indian courts are motivated by international human rights norms but typically will argue domestic law to the judges, with healthy reference to persuasive authority from English courts. Unfortunately, it is extremely difficult to do legal research in India and therefore a firm conclusion on your question of judicial receptivity to such arguments is not possible. Certainly one can find repeated instances in which the Supreme Court of India relies on decisions of the House of Lords, as well as instances in which they are invited to apply international law standards (such as in defining what constitutes rape, see Sakshi v. Union of India, 2004 Indlaw SC 466 discussed here) but refrains from doing so. As for international law arguments, while I am not aware that it has adopted a doctrine akin to Charming Betsy, the Supreme Court of India in the case of Darusz v. Union of India, AIR 1990 SC 605, discussed here, has indicated that the fundamental rights in the 1949 Indian Constitution are in consonance with the rights embodied in the 1948 Universal Declaration of Human Rights and should be so interpreted. The timing of the two instruments is of course highly relevant to this conclusion.

Alford's "Retail Human Rights Litigation"

Welcome Roger and thanks for starting us off this week with a great topic.

IJM’s strategy is very interesting. While I don’t know of other groups applying litigation strategy exactly like IJM, I do note that U.S. civil rights groups have looked into ways in which human rights norms can affect U.S. litigation, even if you are not suing under a treaty. I am not referring to simply trying to get courts to cite to treaties as persuasive evidence (a topic we have hashed over repeatedly at Opinio Juris) but rather, suing under U.S. law and then making an argument that, under the Charming Betsy doctrine of statutory interpretation, the U.S. statute must be read, if possible, in conjunction with related treaties. The intended result is to have the statute interpreted in a manner as consistently as possible with international human rights norms and thereby allowing those norms to inform domestic adjudication. That’s the closest analogy I can think of to what IJM seems to be doing.

In either case, there needs to be an openness of both the litigators and the judiciary to referring to international norms even if the suit is technically not arising under a specific treaty or a statute like the Alien Tort Statute that opens the door to customary international law.

So a question I have for Roger is this: in the IJM model, how central is international law to the argument being made by the attorneys to the judges? Are the international attorneys motivated by international human rights norms, but only arguing domestic law to the judges and, as such, the judges aren’t cognizant of international law in writing their judgments? Or is it that the judges are learning about international legal standards and consciously adopting these standards in their reasoning? Both scenarios are interesting: the first focuses on the socialization of only the bar while the second has both that bar and the bench becoming more literate in international law.

Truth in advertising disclaimer: I am finishing an article on a related topic—whether transnational litigation and arbitration (that is, between a State and a subnational actor such as an individual or a corporation, and including poroceedings as varied as investor-State arbitration to an individual suing a country before the European Court of Human Rights) causes an influx of international norms into the domestic legal systems of transitional societies. Of particular interest is not whether such litigation or arbitration directly causes a change in the domestic law, but whether the process of such dispute resolution changes the habits of the bar and the bench such that they refer to and accept international norms to a greater extent than previously.

In these types of proceedings we see domestic lawyers and judges each becoming involved in a variety of ways (for example: domestic lawyers may argue claims before these tribunals or at times sit as arbitrators; domestic judges may sit as arbitrators or may be involved in proceedings to enforce an award, etc.). The question of who is getting socialized (judges and/or lawyers) can affect, in certain instances, whether the norms being described and applied in the transnational context become accepted principles in the domestic context.

So, in what you have seen, are the judges consciously picking up cues from international law or is it primarily domestic lawyers who are trying new tactics couched in domestic law, though inspired by international law? Do you think it is even necesary for the judges to be cognizant of the international legal argument, as long as the result is the desired outcome?

Dispatch From India

Thank you Julian, Chris, and Peggy for the opportunity to guest blog this week with Opinio Juris. I am writing from Chennai (Madras) India, a south Indian city teeming with 4.2 million residents, a quarter of whom are slum dwellers. I spent most of my first day here touring the city by car, overwhelmed by the masses of people who fill every nook and cranny in the fourth largest city in India. Safely cocooned in my air-conditioned, valet-driven van, my first impression is that of floating in a life boat on a sea of poverty. The reality is more complicated. Chennai is clearly on the move and making significant strides. The standard of living is increasing, mobile phones appear ubiquitous, new restaurants and hotels are thriving, and 86% of households own a television.

I am here at the invitation of the International Justice Mission, a Washington D.C.-based human rights organization that is at the cutting edge of a new trend in human rights litigation. While international lawyers typically have focused their energies on litigation before international human rights tribunals or United States courts under the Alien Tort Statute, IJM has taken a completely different approach. It stations a small cadre of American lawyers to train and supervise local lawyers to enforce local laws that reflect international human rights norms. The head of the IJM office here in Chennai calls it the second wave of human rights litigation: taking international norms that have been adopted throughout the world and training lawyers to enforce them at the retail level.

In India, IJM addresses human rights problems at every level, from discovering the abuses (particularly child labor, sex trafficking, bonded servitude, and child prostitution), documenting the crimes, tipping off the police, securing release of the captives, facilitating the (private and public) criminal prosecution of the wrongdoers, and providing aftercare to the victims. They are crime scene investigators, lawyers, and social workers all rolled into one.

The approach is clearly bearing fruit. Over dinner last night I heard inspiring stories from two effervescent young Indian lawyers who work in IJM’s Bombay (Mumbai) office. For decades child prostitution has been rampant throughout Bombay. Five years ago, IJM decided to target the trafficking of young prostitutes, some of whom were only five years old when they were taken from their rural villages and placed on the streets of Bombay. It documented the abuses, tipped off the police, and facilitated the criminal prosecution of the brothel keepers. Now child prostitution is in dramatic decline in Bombay, as other brothel keepers have heard about this NGO called IJM that is agitating for change. The young lawyers said that the market for young prostitutes continues unabated, but the work of IJM has dramatically curtailed the supply.

I find this new wave of “retail” human rights litigation utterly fascinating, bringing to reality on the ground the lofty aspirations of international conventions. And for the inspiring American advocates who are stationed here with IJM, I see the beginnings of a new human rights movement of “lawyers without borders,” offering the skills they learned at home to remote outposts throughout the world.

I am not aware of any other organization that has adopted this model of human rights litigation. If you are aware of another one, I would be curious to hear about it. Comments are open.

One Last Word on Amnesty International

OK, I'm not quite signing off yet. I just wanted to point readers to two more sharp (and in my mind, devastating) attacks on Amnesty International's attempt to equate Guantanamo with "gulags". (A comparison that they have not backed away from, as Jon Adler notes here). One is by Kenneth Anderson in the Weekly Standard, and the other is by David Bosco in The New Republic. Both pieces make the points I have been trying to make, more eloquently and powerfully than I can.

Sunday, June 05, 2005

Opinio Juris Welcomes Professor Roger Alford

Opinio Juris is thrilled to welcome Professor Roger Alford, of Pepperdine University School of Law, as a guest-blogger, filling in (mostly) for me while I travel and catch up on a few other projects. Roger will be posting from India, where he is currently travelling for the next two weeks. Roger is a well-known scholar of foreign relations and private international law (check out his lengthy publication list here) including a recent article on theories of comparative constitutionalism which Ken Anderson discussed here. Roger is also the founder of International ADR.com, a comprehensive online international arbitration portal that provides information on relevant treaties, arbitration laws, arbitration institutions and rules, and arbitration awards and decisions.

Welcome to Opinio Juris. Blog away!