Go On! Global criminal justice

(Go On! is an occasional item on symposia and other events of interest)

The 24th International Conference of the International Society for the Reform of Criminal Law will be held August 7-11, 2011, at the National Arts Centre in Ottawa, Canada. The theme is "Globalization of Crime - Criminal Justice Responses."

The interdisciplinary gathering will bring together judges, legal practitioners, senior law enforcement personnel, corrections officers, academics, and non-governmental representatives from around the world. The leadership of its sponsor, the Society, includes colleagues of ours like (below right) Sara Sun Beale (Duke), Linda Malone (William & Mary), and Ellen S. Podgor (Stetson). Cosponsoring the conference with the Society is the Vancouver-based, U.N. affiliated nonprofit International Centre for Criminal Law Reform and Criminal Justice Policy, which this year celebrates its 20th anniversary.
The aim is "a forward-looking conference focusing on emerging crimes and new approaches to combat crime." Organizers write:

Domestic criminal justice systems are facing the globalization of crime. Transnational organized criminal groups are trafficking increasing quantities of drugs, firearms, counterfeit products, stolen natural resources and people, as well as smuggling more migrants across borders and engaging in maritime piracy and cybercrime. The response in many nations has been to expand the extraterritorial application and enforcement of domestic criminal laws and to increase mechanisms of international cooperation in the areas of extradition, mutual legal assistance and information-sharing. At the multi-lateral level, a permanent international criminal court has been established and there are renewed calls for various internationalized tribunals to address piracy. Countries continue to seek guidance on when and how domestic courts should exercise universal jurisdiction.

How do judges, prosecutors, policy-makers, representatives of law enforcement agencies and concerned citizens make sense of this shifting reality? How can we best formulate the criminal law and policy response to these challenges moving forward?

Program, fees, and other information are here.

Write On! Transnational law/Toronto

(Write On! is an occasional item about notable calls for papers.)

The Osgoode Hall Graduate Law Students Association, made up of LL.M. and Ph.D. candidates, seeks papers for its conference entitled No Boundaries: Transnational Law and a New Order of Global Governance, to be held May 9-10, 2011, at Osgoode Hall Law School, York University, Toronto, Canada.
Anchoring the conference -- slated to examine whether transnational law has included the ways states behave -- will be keynotes by Law Professors Jan Dalhuisen (King's College London) and David Hunter (American University).
Specifically welcomed are

papers that engage in questions of 'boundaries', particularly those with a focus on models of governance and transnational law. We are interested in a broad range of work dealing with the financial markets (commercial, banking and financial law), environmental protection, administrative law, corporate governance, corporate social responsibility, tax, e-commerce, intellectual property, women's studies, trade, human rights, crisis and emergency planning, labour and employment, health, disability, historical conceptions of regulation and governance, reflections upon the nature and operative conditions of governance, the relationship between state sovereignty and regulatory authority. Papers with an interdisciplinary focus and from graduate students in other disciplines are strongly encouraged.

Abstracts should be submitted no later than February 21, 2011 (another website said February 7, so get them in sooner rather than later.) Details on submission, the conference, etc., here.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Reena SenGupta [right], a London-based consultant, says she used to see foreign-owned legal research operations in India where beds, not desks, greeted the visitor; such was the keenness to dispel the impression that law was being practised.

-- Unsigned Economist article on "Law and globalisation." The article discusses the very high hurdle to the admission of foreign lawyers in India following Bombay High Court decision issued last December -- as well as barriers that exist in many other countries, including Canada. (Hat tip to my California-Davis colleague Jack Ayer, doyen of Underbelly blog.)

Intersubjective Frames & Rational Choice: Transnational Crime & Human Trafficking

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

One of the defining aspects of the end of the twentieth century was the turn to market liberalization and political democracy as twin organizing principles for human societies in many parts of the world. These processes present an opportunity to better understand global norm formation and policy diffusion as actors grapple with the new circumstances of transnational openness.

One of the central aspects of responding to the dilemmas of globalization is how actors come to understand the nature of the phenomena they confront.

In our paper Intersubjective Frames and Rational Choice: Transnational Crime and the Case of Human Trafficking (recently renamed), we posit a theory that rational policy choices are conditioned on the prior and socially defined processes of issue framing. We argue for a two-step process that examines:

► 1st, how the argument is framed—a subjective, purposive, and persuasive process—and

► 2d, how once a frame has been selected, states rationally imitate the policies of states to whose policies they are especially sensitive.

Our findings affirm that norms and policies diffuse according to mechanisms that are highly sensitive to how they are framed.

We view the debate itself over frames as a strategic struggle to view the world—or at least the issue at hand—in ne particular way rather than in some other. Actors want to advance frames they think will further their interests, as well as those that they think will increase the chances that their favored policy will be accepted. Pressure and persuasion are explicit parts of this process. There is every reason to expect material and peer pressure to be brought to bear to convince skeptical states to accept the frame and to adopt the dominant powers’ interpretation of the rational policy response.

Accordingly, we stress that subjectively selected frames are demonstrably powerful prisms for rational action. Just as states rationally compete for capital by liberalizing capital controls when they accept the “Washington consensus,” we argue that they rationally anticipate externalities when they look at human trafficking through a transnational crime rather than a human rights lens.
We have used these insights to explore the emergence of norms and the diffusion of policy in the area of human trafficking – an issue that is without doubt susceptible to interpretation through multiple frames. We have stressed three of these frames in our paper:

► A victim protection frame,

► A human rights frame, and

► A transnational crime perspective.

Empirically, we observed struggles in international forums that reflect the critical issues of how human trafficking should be understand and tackled. The major Western powers were animated primarily by the transnational crime frame (despite the fact that most are also strongly committed to human rights generally). Non-governmental actors worked hard to offer an alternative that would emphasize the rights of victims. We have documented the consequences of this clash of ideational commitments:

► The earlier resolutions muted their human rights language over time,

► Discussions became lodged in Vienna (headquarters of the U.N. Office on Drugs and Crime) rather than exclusively in New York (and the U.N. General Assembly), and

► Ratification of the eventual Trafficking Protocol was made conditional on prior or simultaneous ratification of the Transnational Crime Convention itself.

This occurred because several major powers thought this frame favored their own interests in countering transnational crime and illicit migration.

For the most part, state actors were relatively easy to convince: after all, transnational crime potentially threatens state actors’ developmental plans, corrupts the local rule of law, and can interfere with other programmatic goals of the state. For this reason, the transnational crime frame was far more attractive to a greater number of states than the victim protection or human rights frames would have been. It bolstered rather than challenged traditional concepts of sovereignty, and legitimated states’ quests to protect their borders. The text of the adopted protocol clearly reflects this calculation. So does the extremely rapid pace at which it was negotiated.
The empirical bulk of the paper finds significant support for mechanisms of policy diffusion that follow, given the adoption of the transnational crime frame.

In contrast to most human rights issues, transnational crime involves serious externalities of at least two kinds:

► Direct externalities from the criminal activities themselves (violence, weapons and drug trafficking, money laundering, public health threats, documentation fraud and border violations), as well as

► Policy externalities (the anticipation that if a nearby state raises the costs associated with using its territory to commit these exploitative crimes, criminal networks will have incentives to move their operations elsewhere).

We have proposed and tested very precise ways to measure and test this argument.

Human beings are most often trafficked using surface transportation, and the lowest-cost option in most cases is to move them along roadways. Using satellite imaging, we have found road connections to be strongly positively correlated with adoption of a neighbor’s policies, both the criminalization and ratification. We argue this reflects vulnerability to policy externalities which can divert criminal networks from a high enforcement jurisdiction to one with lax enforcement. This is not especially consistent with theories of institutional isomorphism, which emphasize the relatively uncritical acceptance of Western scripts as models of appropriate state form and practice. The frame is largely Western, but the precise mechanism of policy diffusion we document is very local – right where the rubber hits the (transborder) road.
The Western countries and particular the United States reinforced the transnational crime frame with explicit forms of material and social pressure. The passage in the 2000 of the Trafficking Victims Protection Act in the United States – with its emphasis on rating countries’ efforts to stop human trafficking and threatening explicitly to sanction with the withdrawal of aid – both reflects and reinforces the transnational crime frame. The evidence suggests that the reputational and material consequences of U.S. tiers rankings were taken seriously; these were strongly and consistently correlated with the propensity for a country to criminalize human trafficking (thought not to ratify the protocol) following a poor rating. (map credit)

There is also the suggestion of an intriguing link between media attention to the trafficking issue and the willingness of countries to criminalize.
The crudeness of our measure does not at this point permit us to do much more than to suggest a plausible link, but it could be that attention in the media to trafficking problems reinforces the dominant transnational crime frame, potentially accounting for diffusion through learning processes as well.
Emphatically, we have not been able to show that criminalization and treaty ratification will lead to effective law enforcement on the ground. Such a project will inevitably be frustrated by a lack of reasonably good data on transnational crime in general and human trafficking in particular. Speculation about effectiveness aside, this research suggests some clear drivers in the spread of anti-trafficking norms worldwide.

Under the bus

I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.

That's the written response of Solicitor General Elena Kagan (above left) to the query below by U.S. Senator John Cornyn (R-Texas), purportedly based on articles by Harold Hongju Koh (below right), formerly Yale Law Dean and now (following the protracted confirmation fight chronicled here) the State Department's Legal Adviser:

As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?

These were among many written questions that Cornyn, Tom Coburn (R-Okla.), and other Senators posed in the runup to committee and full-Senate votes -- starting perhaps as early as today -- on whether to confirm Kagan as the next Associate Justice of the Supreme Court.
(Meanwhile, Robert Barnes reported yesterday in the Washington Post of Senator Coburn's complaint in a letter to the current junior Justice, Sonia Sotomayor. Coburn contended that the observation in an opinion for the Court Sotomayor joined -- that virtually no other country permitted juvenile life-without-parole sentences -- "'conflicts with your pledge to the Judiciary Committee and the American public 'not to use foreign law to interpret the Constitution.'")
Kagan's written response differs markedly from Kagan's "qualified defense" of foreign and international law, as I characterized her oral answers during committee hearings earlier this month.
Yet it appears consistent with others among Kagan's written responses (available in full here), which were released Friday. As detailed by the Wall Street Journal 's Jess Bravin, the responses place considerable distance between Kagan and certain schools of legal thought, among them critical legal studies and legal realism.
Even as the responses throw those theories under the bus, they embrace Justice Oliver Wendell Holmes, Jr. (below left) as the "one Justice in the last 100 years whose judicial philosophy has been most influential on the Court" -- and in so doing, gloss over linkages between Holmes and legal realism.
Contradiction is also inherent in the question and response quoted at the top of this post.
Cornyn's battery of questions concluded a long, interpretive passage about "-isms" and "-ists." The passage effectively relegates the "transnational" and the "national" to the status of movements that demand the faith of their disciples, rather than that of descriptions of reality-based phenomena. Too bad Kagan's response eschewed challenge of the question's premise in its haste to disown the "-ism" that the question presumes.

Transnational slavery

Over at Legal History Blog, Ariela Gross (below left), John B. and Alice R. Sharp Professor of Law and History at the University of Southern California Gould School of Law, points to a interesting trend -- a turn to comparative and transnational legal research on the history slavery. It's legal research with a twist:

The turn away from law in the social history of slavery in the 1970s through the 1990s coincided with a turn away from comparison. Returning to law, but from a bottom-up rather than top-down perspective, may allow us to escape some of the exceptionalism that has marked studies of the U.S. South – and the U.S. more generally – without falling prey to the overdrawn contrasts of an earlier generation of scholarship.

Full post, with names of scholars working in this area, is here.

Intercountry adoption, final thoughts

(Part 3 of a 3-part IntLawGrrls guest contribution, an interdisciplinary conversation on intercountry adoptions between Professor Michele Bratcher Goodwin and Dr. Patricia Y. Jones. Part 1 discussed the case of Justin Hansen, the adoptive child who was sent back to Russia by his American adoptive mother. Part 2 considered the case of a boy arrested with guns at his Minnesota school).
Michele: Each year, over 1,500 Russian children can be expected to be brought into American homes. Generally, this process will cost Americans upwards of $30,000 per child. Some critics point out that it would be far less expensive to adopt children from less exotic locations, like Detroit and Milwaukee, than from abroad. Such concerns usually hint at race, as most children in foster care are black, and studies show that whites would prefer to adopt from abroad or adopt a child with severe disabilities than to adopt a black child.
Patricia: There are a number of reasons why this may be the case.
Many people would simply prefer to adopt a child who looks like they could be a part of their family. Some people are understandably uneasy about navigating the social waters that come with having a child that obviously might not be their genetically related child. That discomfort is part of the price of living in a racially polarized nation.
Perhaps the National Association of Black Social Workers has succeeded in identifying the skill sets and social capacities white parents would need in order to adopt a black child in America. Many white families may not be willing to change their customary social functioning to accommodate a black child. Children bring change -- even when they are your own biological children. Adopting transnationally also requires developing new skill sets, and perhaps making social changes in a family’s usual social network. Just because the Russian children share the same complexion as their prospective parents does not make this any less a cross-cultural adoption. This is especially critical when adopting older children.
Michele: But there are also some issues that policy makers and those interested in transnational adoptions would be wise to address, particularly given the profit motivations and financial incentives at play in international adoptions. Transnational adoptions are now a growing cottage industry. Each year the number of international adoptions by Americans increases -- despite language barriers, cultural differences, and financial costs.
Americans lead the world in adopting from abroad. Given what Americans are willing to spend financially, and expend emotionally, some agencies with less altruistic motivations have entered the adoption marketplace. In the worst cases, children not available for adoption, because they have families or were not sent to an orphanage, end up being sent to the United States. Some of these matters could be more easily dealt with when there are no language barriers. But given the significant number of adoptions from Korea, Ethiopia, China, Russia, Guatemala, and other countries where English is not spoken, the challenges become more obvious on inspection.
Patricia: The transnational adoption world would change dramatically if prospective parents were required to have conversational knowledge of the child’s primary language. Many of the abuses by those trafficking in children would stop if they knew prospective parents would be able to converse with their prospective children from another country.
Having a shared language would seem to be the rudimentary platform for which parenting a child from another country can begin. Children with a primary language are routinely placed in homes with parents who cannot communicate with them and unfortunately with parents who also have no desire to learn the child’s primary language. That is absurd.
Michele: The tales of Justin Hansen and Joey Jarvis are yet to fully unfold. Joey, the 14 year old on whose case we posted yesterday, is now in juvenile detention awaiting a decision from prosecutors as to whether he will be charged as an adult from threatening to kill his classmates and teachers. And as for 7 year old Justin, about whom we posted earlier. He has returned to his native country after an unsuccessful adoption by a woman who likely wishes that she had been better prepared for the challenges of adoption.
Exposed, however, are the weaknesses in the intercountry adoption system. Follow-up support is not always available. And support groups are not always local; rather, they are spread across the country (and world).

Towards holistic transnational protection against kidnapping: public law approaches

(Thank you to IntLawGrrls for the invitation to provide a guest post based on a forthcoming article of mine)

My most recent area of research is the global criminal phenomenon of kidnapping as it relates to an increased presentation of asylum claims in the United States, Canada, Belgium, France, United Kingdom and New Zealand.
This most striking aspect of this problem is that the private market is both part of its origin and part of its solution.
Inequitable enjoyment of socio-economic resources and the exclusion from participation in formal markets prompt marginalized individuals to pursue the criminal market of kidnapping, in which the human body becomes the ultimate commodity. In turn, corrupt and ineffective judicial bodies and police leave family members little choice but to employ private security and insurance companies. This creates a growth industry based on safe return of victims.
At the international level, there has been increased attention, not only from the UN Economic and Social Council, but also from UN Secretary-General Ban Ki-moon (above right), who declared in 2009:

Kidnapping is an inhumane and unjustifiable crime, as well as a gross violation of international human rights and humanitarian law.

Among the related human rights at stake, one may cite:
► guarantees of liberty, physical integrity and security, and the prohibition of arbitrary detention, as detailed in Article 9 of the International Covenant on Civil and Political Rights;
► the right to life, as in Article 6 of the ICCPR;
► the prohibition against torture, in Article 7;
the ban on interference with family, Article 17; and
► protection against sexual violence, established in, for example, the November 16, 2009, judgment (available in Spanish) by the Inter-American Court of Human Rights in Gonzalez et. al. v. Mexico.
Indeed, the most relevant case law has emerged at the regional level, where the focus is on state responsibility for investigating and punishing kidnappers.
The Inter-American Court thus issued 2 notable provisional orders, in:
► In the Matter of the Communities of Jiguamiandó and Curbaradó, a case involving the kidnapping and murder of a manm allegedly via complicity by police and paramilitary; the order called for State investigation, identification of perpetrators, and punishment; and
► In the Matter of the United States of Mexico Digna Ochoa y Plácido et. al., in which the order called upon the State to protect the lives of human rights activists who had been subject to kidnapping.
Similarly, the Inter-American Commission on Human Rights has repeatedly condemned kidnapping by nonstate actors in countries including Colombia, Guatemala, El Salvador, Venezuela, and Brazil.
In like manner are decisions of the European Court of Human Rights:
► In the case of Avsar v. Turkey, the Court held Turkey to be in violation of Articles 2 (right to life) and 13 (effective remedy) of the European Convention on Human Rights, for failing to carry out adequate and effective investigation in a case involving the kidnapping and killing of a man by village guards with complicity by the state.
► The Court held Russia liable for violation of the same articles in Elmurzayev and others v. Russia and Khadzhialiyev and others v. Russia, cases involving kidnappings by “unidentified armed men” and subsequent delays by the state in investigation and proceedings respecting those crimes.
In large part, the international community’s response to the global threat of kidnapping is reflected in the innovative institutional trend towards horizontal and vertical cooperation across the public-private divide. Initiatives to combat the spread of kidnapping include assistance in border control, intelligence-sharing, police training, and management (seeking transparency, accountability, and professionalization), telecommunication interception, assistance in legislative amendments, extradition, and overview of financial transactions.
Furthermore, there are increased calls for strengthening citizen and community participation in the implementation of security plans. The European Council issued Recommendation 2007/562/EC of 12 June 2007, which requires states to share information in all terrorist kidnappings. Similarly, the need for international cooperation to address crime (including kidnapping) has been promoted by the Organization of American States Permanent Council’s Special Committee on Transnational Organized Crime and the Ministers Responsible for Public Security.

It is important to note issues of continuing concern:
► We still await the establishment of implementation mechanisms for the UN Convention Against Transnational Organized Crime; and
► None of these initiatives highlights the importance of asylum, for victims and their families, as an element of holistic protection.

Where and when transnational law develops

(Part 3 of a 3-part series of guest posts by Mireille Delmas-Marty)

Having traced the development in France and the United States of transnational law processes such as cross-referencing, harmonization, and hybridisation, we now examine the questions of where and when transnational law develops.

Location of transnational Law
In the United States, much of the development of transnational law seems to be found at the national level, given the significance of the roles played recently by the Supreme Court regarding cross-referencing and, to a lesser extent, harmonisation.
In France, the national level also remains important. But the international regional level also is very much in play. National judges are becoming international judges, in the sense that they may, and must, exclude national law when it is contrary to European law. European statutes and case law increasingly are incorporated into domestic law. Just as Americans say,

"International law is part of our law,"

recalling the statement in Paquete Habana (1900), we in France say,

"European law is part of our law."

The global level, finally, is the right answer in some areas. This may be seen in, for example:
► Criminal law, in which international conventions have initiated global movements toward change. There may be no European prosecutor -- an innovation that I advocated in my work on Europe’s Corpus Juris project -- but there is already a global prosecutor, in office at the International Criminal Court.
► Environmental law, in which the 1997 adoption at the global level of the Kyoto Protocol, which set targets for regulating greenhouse gases has spurred legal reforms in France and other states and at the European regional level.

Timing of transnational law
The proliferation of international conventions designed to bring about change in the transnational legal world provokes scrutiny of the final question of when -- at what pace -- transnational law develops.
It seems unrealistic to demand implementation of international conventions at the same time in every place. It is thus not surprising to discover the emergence of legal practices allowing states to incorporate various norms of international law at their own pace. This multiple-speed mechanism of implementation -- which I have labeled "polychrony" in my book Ordering Pluralism (trans. Naomi Norberg 2009) -- may contribute to the ordering of legal pluralism. That is because it enables the integration process to continue without the slowest wagon dictating the speed of the convoy, as former German Chancellor Helmut Kohl once put it.
Examples of polychrony:
► At the European level, some states welcome passport-free circulation within the multinational borders of what’s known as the Schengen area, while other states lag behind, maintaining strict controls at their own national borders.
► At the global level, Article 3(1) of the 1992 U.N. Framework Convention on Climate Change articulates a principle of "common but differentiated responsibilities" that establishes different time tracks for reduction of greenhouse gases. The same method was suggested as a way for the World Trade Organisation to allow developing countries to make commitments according to their means and abilities, rather than to exclude them from multinational discussion for the reason that they cannot integrate at the most rapid speed.
In effect, embrace of polychrony transforms a strategy of accepting derogation from multistate legal norms into one of anticipating conformity to those norms. Risks remain, however: integration by the mechanisms of transnational law may result in the disintegration of national and international laws.

Conclusion
Scrutiny of legal pluralism in the transnational legal world reveals not a well established global legal order, but rather interactions between national and international systems that play out in apparently contradictory, nonlinear, disorderly movements. It is a world in which new processes, extremely complex, continue to evolve. Legal systems seem to change form almost as soon as they take shape, long before we have had the time to determine their outlines.
This contemporary reality departs from the hierarchical pyramid-of-law metaphor advanced decades ago by the jurist Hans Kelsen. I suggest that we replace the image of the static pyramid for that of dynamic clouds. The cloud metaphor aptly represents the continuity of formation and deformation ongoing in Europe. It applies too at the global level, where individual experience and interests represent fragments of an ever-changing sky.
Let us dream of the day when a common core of values might in a single breath order our marvelous clouds without forcing them to stay in a single space.

(Part 1 of this 3-part guest post, which introduced comparison of the French and U.S. approaches to the transnational legal world, is here; Part 2, on how transnational law develops, is here.)

How transnational law develops

(Part 2 of a 3-part guest post by Mireille Delmas-Marty)

Having introduced a comparison of French and U.S. approaches to legal pluralism in a transnational legal world develops, we now consider answers to our threshold question: How does the transnational legal world develop?
Transnational law develops through:
► cross-referencing,
► efforts to harmonize, and
► creation of hybrid rules of substance and procedure.
In both the European and the U.S. legal systems, the last method is rarely used. It is true that some hybrid rules have been created. An example is the hybridisation of the accusatorial and inquisitorial criminal procedure rules that occurred first in the ad hoc tribunals and later at the International Criminal Court. But these rules – which increase judicial powers in the preliminary phase, transmit dossiers to the trial judge, and accord more prominent roles to victims – do not directly affect national legal orders.
In the United States, much has been debated about the 1st option, called cross-referencing or, sometimes, consultation; that is, the citation by U.S. judges of decisions handed down by judges of foreign constitutional and international courts. Most salient are 2 U.S. Supreme Court judgments, Lawrence v. Texas (2003) and Roper v. Simmons (2005). The latter issued during a Term when the Court considered or referred to foreign law in at least 6 cases, according to Justice Stephen G. Breyer (above). In his foreword to my book Ordering Pluralism (trans. Naomi Norberg 2009), Breyer wrote that "six out of a total docket of 79 indicates the increasingly routine nature" of this method in American cases.
In France, meanwhile, the main concern is the middle option, harmonisation. Jurists focus on the changes that European efforts to harmonise different national systems imposes on criminal, contract, and other sectors of French law.
Harmonisation is a very complex process, entailing both more and less integration than either of the other 2 options:

Harmonisation and cross-referencing
Compared with cross-referencing, harmonisation requires more integration. Cross-referencing assumes the priority of domestic law; in contrast, harmonisation involves a hierarchy in which an abundance of international law is binding on the national legislative authority. That international law derives, moreover, from both poles of the bipolar European legal system discussed in my last post:
► Respecting the European Union pole, France’s Conseil d’État (right) observed in 2000 that since the 1960s the Community had produced more than 68,000 acts supposed to be integrated to French law.
► Respecting the Council of Europe pole, the indirect effects of decisions by the European Court of Human Rights (below left) against France must be noted. In 1990 that Court condemned France twice -- in Huvig and Kruslin, which challenged wiretapping without any legal basis -- and France adopted a new law within a year. In Medvedyev (2008), a Court panel ruled that in France the prosecutor is not independent enough to satisfy the due process principle enshrined in Article 5 of the Convention on Human Rights and Fundamental Freedoms. Should the Court’s Grand Chamber confirm this finding of violation, the French government likely will have to delay and revise a pending plan to transfer more power from the investigating judge to the prosecutor, about which I wrote an op-ed last summer. (Prior IntLawGrrls post)

Harmonisation and hybridisation
Compared with the 3d option of hybridisation, however, harmonisation involves less integration This is because each member state enjoys a margin of appreciation that precludes application of strictly identical rules throughout Europe. As articulated in Handyside v. United Kingdom (1976) and later judgments, the margin-of-appreciation concept operates to limit the jurisdiction of the European Court of Human Rights, particularly in areas in which differences among members states are so strong and so deeply linked to national cultures that it seems impossible for international judges to impose the same rule on every state. Examples include areas such as abortion, euthanasia, and privacy. The national margin of appreciation excludes binary reasoning: it imposes not an obligation of strict conformity, which bars all variation, but rather an obligation of compatibility, which permits some differences in application of European legal norms.
In short, the margin of appreciation involves gradation-based reasoning -- fuzzy logic, as I have called it -- and accepts incomplete integration.
Not all differences are accepted, however. The concept preserves some gradation of integration, for it assumes limits which must not be exceeded. Examples:
► Abortion may be subject to limitations by the state that are strict, as in Ireland or Poland, or not so strict, as in Germany. But, as the Court established in Tysiac v. Poland (2007), the domestic law must effectively implement the Europe-wide right to abortion.
► Wiretapping may be controlled very differently in each European national system -- by administrative authority, for instance, or by a judge or a parliamentary commission. The Court has not relinquished its right to review such mechanisms, but has limited review to those deemed incompatible with Europe-wide norms.
This graduated approach has some resonance among U.S. jurists. Justice Breyer proposed in Heller (2008), which entailed "review of gun control regulation," U.S. courts ought to embrace an "interest balancing inquiry." Breyer considered deference to legislative appreciation to be "particularly appropriate" given that the decision was made "by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions." The consequence is that different localities may seek to solve similar problems in different ways. Breyer’s dissenting opinion in Heller:

The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.

(internal quotation marks omitted) This statement is not so different from those in which the European human rights court has considered that national courts are better situated than European judges to determine the proper scope of restrictions based on public order.

(Still to come in this 3-part guest post: Part 3, on where and when transnational law develops; here. Part 1, which introduced comparison of French and U.S. approaches, is here.)

Coping with legal pluralism: French & American approaches to the transnational legal world

(Part 1 of a 3-part guest post by Mireille Delmas-Marty)

From the viewpoint of tradition in France, or any continental European state, the term "legal pluralism" seems to be a kind of monster -- a chimera, if you will. That is because the 2 words that make up the term usually carry opposite meanings:
► "Pluralism" implies differences, dispersion, and free movement, interaction and evolution; in contrast,
► "Legal" leads us to think in terms of a unified, hierarchical, static structure.
But the world is not static, and so we must take up the challenge of overcoming this contradiction. We must change our minds just as our legal history changed. It changed at the end of World War II, when a European legal order emerged, and then again since the end of Cold War, when the so-called globalisation of law accelerated. Changes occurred in, to name a few areas:
► Human rights law with the adoption of the Universal Declaration of Human Rights and subsequent instruments;
► Trade law with the establishment of the World Trade Organisation;
► Environmental law with the 1997 Kyoto Protocol and perhaps the Copenhagen process; and
► Criminal law with the International Criminal Court.
The emergence of the European legal conception has deep influence, one that perhaps makes it easier for the French to accept and join this transnational legal world.
On initial comparison, similarities between the legal system of Europe and the federal system of the United States jump to the fore. The distribution of powers between European member states and the community is as sensitive as in any federal system. Power is transferred to the community whenever member states in Europe are unable to comply with community objectives. That practice -- an implementation of the principle of subsidiarity -- is paired with that of proportionality. This latter norm is stated in Article 5 of the Lisbon Treaty as follows:

"[T]he content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties."

The effect of proportionality on European integration is like that of a dimmer switch on a lamp: integration is increased when member states do not attain European Union objectives, and decreased when they do.
Despite those similarities, the differences between the European and the U.S. systems are critical.
They differ, for example, in history.
For centuries, Europe was constructed as separate states, independent in politics, language, and legal system, while America was founded as a federal republic with a national as well as state governments.
The 2 systems differ as well in contemporary practice.
Although we tend to think of the United States as more unified, in some areas this is not the case. With respect to the death penalty, for example, unification appears more complete in Europe, pluralism more present in the United States. But in most areas, it’s the other way around: pluralism appears much more complex in Europe, where the system is both bipolar and multipolar:
► Bipolarity is symbolised by the coexistence of 2 European supreme courts. For the Council of Europe, comprising 47 states including Russia and Turkey, there is the European Court of Human Rights in Strasbourg. For the subset of 27 states that make up the European Union, there is also the European Court of Justice in Luxembourg. By tradition the latter focuses on the market, the former on human rights.
► Multipolarity is preserved in each of these bipolar regimes, by different legal techniques. In the Strasbourg system there is, of course, the doctrine of margin of appreciation. In the Luxembourg system, member states may opt out of certain aspects of European legal integration. Thus the December 2009 entry into force of the Charter of Fundamental Rights of the European Union (prior IntLawGrrls post) may not apply in Britain, Poland, or the Czech Republic, each of which has obtained the ability to opt out of that instrument.
It may seem difficult to accept such a wide range of pluralism within a federal system.
That is why, in my opinion, the European legal order is situated halfway between reproducing a federal legal system and anticipating a global legal world. Such a global legal world should constitute neither the complete fusion nor the complete separation of diverse legal systems. It should, rather, constitute what I call "ordering pluralism." Thus the title of my new book: Ordering Pluralism (2009) (prior IntLawGrrls post).
I use "ordering," rather than "ordered," pluralism in order to stress the movement rather than the model, the process rather than the result.
From the vantage point of ordering pluralism, I would say that the questions asked in the French and American approaches to law are the same:
► How does transnational law develop? Is it a law among nations? A law beyond single nations?
► Where does transnational law develop? At which level? National? Regional? Global?
► When does transnational law develop?
At this point in time, the answers each approach gives are somewhat different. Yet one can expect that over time they may converge.

(Still to come in this 3-part guest post: Part 2, on how transnational law develops, and Part 3, on where and when it develops)

Trial Begins for Navy Repressors in Argentina: the International Connections

After years of delays, public trial began today for nineteen naval officers accused of murder, forced disappearance, torture, illegal detention and other crimes committed during Argentina’s military dictatorship. Many of these cases had been investigated in the early 1980s, but investigations were put on hold when the government passed an amnesty law. Only in 2005, when both the Supreme Court and Congress annulled the amnesty law on grounds that it conflicted with Argentina’s international obligations to prosecute crimes against humanity, did prosecutors and investigating judges begin reconstructing the cases.
The Naval Mechanics Academy (known in Spanish as ESMA) was one of the most notorious secret detention centers in Argentina during the 1970s. Thousands of people were detained and tortured there; most of them ended up being drugged, put on airplanes, and dropped into the sea. However, a good number were put to work forging documents, fixing electrical appliances, or clipping news stories and doing analysis for Navy chief Emilio Massera, who had political ambitions. Thus, there are more ESMA survivors able to testify than is true for most of the secret torture and detention facilities.
Among the victims of ESMA personnel are two French nuns, Léonie Duquet and Alice Domon (pictured right). The two were detained because of their work helping to organize the Mothers of the Plaza de Mayo, whose weekly protests on behalf of their missing children became the face of opposition to the dictatorship. Former Naval captain Alfredo Astiz, now on trial, has been previously condemned in absentia by French and Italian courts for the murder of the nuns. Now he sits in the dock in Buenos Aires, and may finally see jail time.
Also among those on trial is Ricardo Cavallo, also known as “Serpico.” Cavallo was a member of a task force who kidnapped victims and brought them to ESMA, and he later oversaw some of the surviving ESMA victims. After the end of the dictatorship, he moved to Mexico. He was arrested there on a warrant from Spanish Judge Garzón, who had opened his own investigation into the crimes of the Argentine and Chilean militaries (yes, the same Garzón who issued the arrest warrant for Augusto Pinochet). Cavallo was eventually extradited to Spain after the Mexican Supreme Court decided that the extradition was proper. He was held in jail in Madrid for over 4 years before the Spanish and Argentine governments agreed that a fair trial was now possible for him back home. So he too sits in the dock.
One defendant in the ESMA case is missing: Captain Adolfo Scilingo, who had admitted to a journalist his participation in the “death flights” is now sitting in a Spanish jail. Scilingo flew to Spain in 1997 to testify before Judge Garzón. Garzón promptly arrested him, and he was brought to trial and convicted in 2005. He is now serving a sentence of several hundred years. More recently, another Argentine “death pilot”, Julio Poch, was arrested in Spain in December 2008. Poch, an Argentine-Dutch citizen who had become a commercial pilot, boasted to his co-workers about his participation in killing “subversives.” His boss ended up turning him in, and the Dutch police issued a warrant and extradition request for him when he was piloting a flight in Spain. He too will probably eventually end up in the dock in Buenos Aires.
What to make of all this? A few ideas: first, justice delayed isn’t always justice denied, even if it is justice made much more complicated and difficult. Second, justice can take place in national courts, not just in international criminal tribunals. Third, justice in national courts is a transnational enterprise, with judges, prosecutors, and victims’ groups in different countries collaborating and sharing information.

(Coming soon: advances in Chile and Guatemala)

Guest Blogger: Laurel Terry

It's IntLawGrrls' great pleasure to welcome Laurel Terry (left) as today's guest blogger.
Laurel, the Harvey A. Feldman Distinguished Faculty Scholar and Professor of Law at Pennsylvania State University Dickinson School of Law, writes about legal ethics and lawyer regulation from comparative, transnational, and international perspectives. She's taught the required legal ethics course for 25 years, and also teaches a global legal profession seminar. She's written many publications and delivered many presentations in these areas, and now serves as Chair of the Association of American Law Schools' Section on Professional Responsibility.
Among Laurel's other professional service: an International Law Association committee working on draft principles for lawyers appearing in international tribunals and the ILA's Group Membership Committee; the World Trade Organization Working Group of the the International Bar Association, for which she's made presentations to the WTO (here) and to a U.N. subcommittee (here); consulting for the International Agreements Committee of the Conference of Chief Justices; helping the American Society of International Law develop international legal ethics programming. Her activities for the American Bar Association include: contributions to its webpage on the General Agreement on Trade in Services-Legal Services; service as a special advisor to the ABA Task Force on International Trade in Legal Services; membership on the new International Committee of the ABA Section of Legal Education and Admissions to the Bar; past vice chair of the Transnational Legal Practice Committee of the ABA Section of International Law and of the Policy Implementation Committee and the Standing Committee on Professional Discipline of the ABA Center for Professional Responsibility.
A magna cum laude and Phi Beta Kappa graduate of the University of California, San Diego, Laurel was elected to the Order of the Coif while at the University of California, Los Angeles, School of Law, thereafter clerking Judge Ted Goodwin, U.S. Court of Appeals for the Ninth Circuit. She practiced at a firm in Portland, Oregon, before joining academia in 1985. Since then she've received three Fulbright grants, to Austria in 1992 and to Germany from 1998 to 1999 and again from 2005 to 2006.
In her guest post below, Laurel explains her scholarly focus and summarizes her article respecting the European Commission’s Professional Services Competition Initiative.
Heartfelt welcome!

Difficulties of exercising extraterritorial criminal jurisdiction: The acquittal of a Dutch businessman for crimes committed in Liberia

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

With this post I briefly present my recently published article, "The Difficulties of Exercising Extraterritorial Criminal Jurisdiction: The Acquittal of a Dutch Businessman for Crimes Committed in Liberia". An outgrowth of research on domestic efforts, particularly Dutch efforts, to investigate and prosecute international crimes, the article recently was published in the International Criminal Law Review (left).
As host state to the International Criminal Court and fierce promoter of The Hague as the City of Peace and Justice, the Dutch Government is adamant that its own justice system must perform well as a fighter of international crimes. Therefore, a special investigation unit has been entrusted with the task of investigating and prosecuting such offences. Most investigations concern so-called 1F cases, which flow from files of asylum seekers who have been rejected on the basis of a Dutch provision implementing Article 1F of the 1951 Convention relating to the Status of Refugees, which states:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

In addition, two cases have been pursued against Dutch nationals. First of all, there has been a case against Frans van Anraat for supplying chemicals to the regime of Saddam Hussein (judgement in first instance here; appeal judgement here). This post concerns the second case, namely that against Guus Kouwenhoven (credit for 2008 image of Kouwenhoven, at far right, in a court proceeding at The Hague).
In March 2003, the nongovernmental organization Global Witness published a report entitled, The Usual Suspects: Liberia's Weapons and Mercenaries in Côte d'Ivoire and Sierra Leone. The cover of the report depicted Kouwenhoven standing in a lineup with, among others, Charles Taylor (below left), then the Liberian President, now a defendant on trial before the Special Court for Sierra Leone. The report's implication of Kouwenhoven in the civil war in Liberia served as the lead for the Dutch Prosecution Office to start a criminal case against this Dutch national.
In June 2006, a Dutch court in first instance, via this judgement, convicted Kouwenhoven for the violation of an arms embargo, but acquitted of the count on war crimes. This judgement on appeal acquitted Kouwenhoven of all charges. In its judgment quashing the prior conviction, the Dutch Court of Appeal heavily criticized the Public Prosecutor, and maintained that the case against Kouwenhoven was built on quicksand.
Even though not grounded in universal jurisdiction, given that it occurred in the defendant's state of nationality, the case does illustrate the inherent complexities of exercising extraterritorial criminal jurisdiction:
► A remarkable aspect of the case is that the Court of Appeal evaluated the evidence presented in a fundamentally different way than the Court of First Instance had done. This might be related to the inherent difficulties of assessing “foreign evidence”. In my article, I argue that when adjudicating such foreign cases, national judges, given their unfamiliarity with the historical and cultural setting in which the alleged crimes took place, should call upon experts on the region to assist in the evaluation of the evidence.
► In terms of substance, the case leads to interesting questions as to how charges of illegal arms trade do and should relate to charges of complicity in war crimes. On this point, the Court of First Instance observed that Kouwenhoven’s conviction of illegal arms trading, for having supplied Taylor and/or his armed forces with weapons, was in itself not sufficient evidence to consider it proven that the defendant participated in committing war crimes under one of the modes of liability charged. The Court indicated that the weapons delivered could also have been used for acts that are legally permitted or acts that cannot be qualified as war crimes. One may wonder which legally permitted acts the Court had in mind in the context of Liberia at the time. (Just last month, Taylor denied any trading of arms-for-diamonds in his testimony before the Special court.) Yet, the Court’s general conclusion that the illegal delivery of arms to a region where war crimes are being committed does not necessarily lead to responsibility for war crimes is probably correct.
In sum, the case leads to the complex legal question whether, and under which circumstances, an arms trader can be held criminally responsible for international crimes potentially committed with the arms that he delivered. This is a question that has not yet received a final answer.

Write On! IntLaw & more @ Toronto Group

(Write On! is an occasional item about notable calls for papers.) Seeking papers for its 3d annual conference, to be held January 29-31, 2010, is the Toronto Group for the Study of International, Transnational, and Comparative Law. The conference -- organized by graduate students at the Faculty of Law of the University of Toronto (crest at top right) and at Osgoode Hall Law School, York University (crest at bottom right) -- aims

to encourage critical inquiry and collaborative discussion among graduate students and junior faculty members, providing a forum in which to explore the work at play in various projects aimed at historicizing and redefining international, transnational, and comparative law and legal scholarship.

In addition to these discussions, there will be a keynote address by Dr. Martti Koskenniemi, Academy Professor, University of Helsinki, Finland.

In keeping with this year's theme, Concerning States of Mind, Disturbing the Minds of States,

[a]pplicants are encouraged to submit papers that concern and disturb the existing limits and competing logics of international, transnational, and comparative law and legal scholarship.

As fully detailed here, papers may examine the issues through "streams," emphasizing law and legal scholarship on:

► transnational corporations;

► global cities;

► national traditions in international law;

► migrant and indigenous approaches to international law;

► workplace law;

► trans-identity jurisprudence in transnational law;

► the il/legitimacy of international constitutionalization; and

► art’s visceral/visual challenge to black-letter law and legal regulation.
Deadline for submission, to torontogroup2010@gmail.com, of "proposals for presentations, panels and other interventions" is October 19, 2009. Details here.

(Hat tip to our guest/alumna Mary L. Dudziak, who posted on this call at her Legal History Blog)