Category: International & Comparative Law


How Big Should a Country Be?

worldmap.jpgEric Posner has an interesting post up at VC on the optimal size of countries. His comments remind me of Douglas North’s discussion of the topic in Structure and Change in Economic History (a very cool book if you haven’t read it). One possibility suggested by North is that the optimal size of the state is determined by the extant military technology. States that win wars survive and states that lose wars don’t. Accordingly, states whose size is correctly calibrated to the best military tactics and technology — e.g. the ability to raise and finance armies using the best weaponry, etc. — win. As military technology shifts we would then expect to see shifts in the optimal size of a state.

Another possibility is the transaction costs imposed on economic activity by national borders. For example, I think that there is a pretty good case to be made that Africa has too many countries. It makes sense that most trade is generally with your immediate neighbors — e.g. Canada and the U.S. — but in Africa this trade is frequently hobbled by inter-African protectionism. Hence, many African economies are effectively excluded from their most natural markets. Of course, if one thinks of protectionism as a form of rent seeking — and I believe that it almost always is — then this argument about optimal country size is really just a reformulation of Madison’s argument in Federalist No. 10: big countries are better because they are harder for “factions” to capture.

The trade story about optimal country size, however, can get complicated. One can dramatically reduce the transaction costs imposed by national borders through diplomacy and domestic policy, a la NAFTA or the EU. Likewise, there is no necessary reason that having a market within a single country necessarily implies the absence of implicit or explicit tariffs. Hence, for example, P.S. Atiyah argues in The Rise and Fall of Freedom of Contract that the union of Scotland and England at the opening of the 18th century created the largest free trade zone in the world. Although he doesn’t discuss it, it is worth pointing out that France, for example, had a larger population than the United Kingdom. On the other hand, France was not an internal free trade zone. Rather, one of the French crown’s chief sources of revenue was the taxation of trade not when it crossed France’s international frontier but rather when it crossed regional boundaries within the country.

LawProf as Philosopher-King

brasilia.jpgCarlin Romano’s fascinating profile of Harvard Law Prof Roberto Unger should prove inspiring for any academics who long for a policy role. Here’s a taste:

His political involvement in Brazil dates to the late 1970s, when military dictatorship gave way to a “political opening.” Unger offered his services to the united opposition party. In 1978 he became that party’s chief of staff . . . . In those days, he says with a grin, he consoled himself “during solitary evenings … with readings and translations of Chinese imperial poetry, one of the themes of which is the presence of the exiled intellectual in the dusty steppes.” . . .

In April 2007, [Socialist President] Lula invited Unger for two long conversations in Brasília, then offered him a new position running a “Secretariat for Long-Term Actions.” Unger accepted, informing Lula that he’d start after finishing his Harvard semester. . . .

“I have the only position in the government that is about everything, except for the position of the president,” Unger exults. “He has all power, and I have none. But I have one advantage over him. I don’t have to manage daily crises. I’m therefore free — as he is not — to deal with the future and to deal with our direction. It’s been fantastic.”

Unger’s ideas for change are interesting, though the scholarship that underlies them has gotten a mixed reception in the American academy.

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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh

I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.

Ulema.pngWhere Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.


Migrant Money: A Peek at How Migrant Labor Impacts Development

Gambia_Standard_Chartered_Bank.jpgThe 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?

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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.


The Perils of Universal Jurisdiction

spanish flag.jpg

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. 180px-Rw-map.jpg

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.

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

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

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

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

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International Law and the New Russia

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

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

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

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

So what does the new Russia mean for international law?

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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.


The Future of Federal Courts

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

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

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

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

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