Write On! "Transnational Judicial Dialogue"

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

The International Law through the National Prism Project at the Amsterdam Center for International Law, and the MultiRights Project at the University of Oslo Faculty of Law have issued a call for papers for a conference on "Transnational Judicial Dialogue: Concept, Method, Extent and Effects". The Conference will be held on June 21-22, 2013, in Oslo. Full details are here.
The Conference will explore the practice of transnational judicial dialogue on issues of international law by and between domestic and international courts (and tribunals). It seeks to examine whether, how, when and why courts engage in such dialogues; and what the effects are of this practice. In particular, the Conference aims to clarify the concept and extent of court-to-court dialogue, the process itself, its limits and possibilities, as well as any influence it may have on the international legal order further down the line.

The Conference seeks to address how transnational judicial dialogues occur in different regions of the world and in various fields of law, including, but not limited to, human rights.
Paper proposals (no longer than 500 words) and a CV should be sent by e-mail to: Dr. Amrei Müller (a.s.mueller@jus.uio.no). The deadline is February 15, 2013.

Rhino horn trading & resilience of criminal networks

(Many thanks to IntLawGrrls for inviting me to contribute this introductory post)

Wildlife crime is a growing global problem, with major implications for biodiversity conservation.
The trafficking of rhinoceros horn provides a clear illustration of the difficulties that are encountered in attempting to combat the illegal transnational wildlife trade. All five species of rhinoceros are under threat; three of the five ((Black, Sumatran and Javan rhinos) have ‘critically endangered’ status on the Red List of Threatened Species produced by the International Union for the Conservation of Nature, a Switzerland-based nongovernmental organisation. (prior IntLawGrrls posts here, here, here, here, and here)
While habitat destruction is contributing to a massive decline in numbers of rhinos worldwide, poaching for horn is the main culprit.
Recently I wrote a paper about the illegal trade in rhino horn, as part of the Transnational Environmental Crime Project being undertaken at the Australian National University. The project is funded by the Australian Research Council, and conducted in partnership with the Australian Department of Sustainability, Environment, Water, Population and Communities.
About 80% of the remaining world rhinoceros population is in South Africa. In the last five years, the numbers of rhinoceros poached in that country alone has increased exponentially, rising from 13 in 2007 to 448 in 2011. The 2012 number is well on the way to surpassing 500.
The population growth rate for South Africa’s estimated 20,700 rhino is 6% per year, but rhino poaching escalated by 35% between 2010 and 2011 alone.
These figures have given rise to concern that extinction of the species is a real possibility, despite the limits on trade imposed by the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES.
The main black market for rhino horn lies in Southeast Asia, particularly Vietnam and China, where demand is driven by a belief that horn has curative properties for a range of ailments (recently expanded to include cancer), and by its use as a status symbol amongst elites. Organized crime networks are taking advantage of opportunities, presented by cultural norms and by the wealth of the growing middle class in the region, to traffic rhino horn to these markets.
Greed is a powerful driver of the trade, with enormous profits to be made. But this alone does not alone determine the trade’s sustainability.
As my paper notes, the illegal trade in wildlife is increasingly meeting with resistance from states and the international community, in the form of law enforcement and regulatory initiatives. Both money and effort are going into training and deployment of personnel to patrol poaching hotspots. New technologies for monitoring rhinos and tracking and catching poachers and smugglers are being deployed. More international agreements, designed to strengthen political will and law enforcement responses, are being signed. Campaigns are under way to inform consumers that rhino horn has no medicinal qualities and make them aware of the horrendous consequences of the trade for the animals themselves.
So why does the illegal trade persist?

Look On! Whistleblower on human trafficking

(Look On! takes occasional note of noteworthy productions)

Human trafficking for the purposes of sexual exploitation must be one of the most abhorrent abuses suffered by people (mainly women and children) today. A modern form of slavery, women and girls are kidnapped, beaten and raped by traffickers who make huge profits by selling women to men, who are willing to pay for sex.
The 2000 Protocol on human trafficking, aimed to prevent, suppress, and punish the offence, forms part of the Convention against Transnational Organised Crime.
But what happens if this organized crime is being perpetrated by those working in international organisations?
What happens if those involved in exploiting and raping women are UN peacekeepers with immunity?
And what happens to the person brave enough to report what is going on?

Whistleblower (2010), directed by Canadian Larysa Kondracki, tells the fictionalised story of Kathyrn Bolkovac (played by Rachel Weisz). Bolkovac, an American police officer, was sent to Bosnia under a contract with Dyncorp, a private contractor as a peacekeeper. When in Bosnia, she uncovered the involvement of UN peacekeepers in the trafficking and sexual exploitation of women.
The film dramatises the protection that the United Nations gave the soldiers and policemen involved in the exploitation of the women, both in their roles as traffickers and as patrons of the women forced into prostitution.
Whilst a blind eye was turned to the rape and exploitation of the women in post-war Balkans and the men involved were protected from the scandal, Bolkovac was fired, in what a British employment tribunal later determined to have been an unfair dismissal on account of her investigation and reporting of human trafficking.
Whistleblower – an excellent and hard-hitting movie with big-name actors including Vanessa Redgrave and Monica Belluci – is a must-see for those interested in gender issues in postconflict situations and in accountability (or lack thereof) for the criminal actions of UN personnel.
For a followup on the real-life events since the film was released – including UN Secretary-General Ban Ki-moon's staging of a special screening last year at the United Nations – see the Guardian article here.

(Cross-posted at Human Rights Film Diary blog)

Go, 'Grrl! Dr. Evelyne Schmid

Delighted to read that IntLawGrrls contributor Evelyne Schmid (right) has successfully defended her Ph.D. thesis at the Graduate Institute of International and Development Studies, in Geneva. Chief advisor for her dissertation, entitled "Violations of Economic, Social and Cultural Rights in International and Transnational Criminal Law," was Institute Professor Andrew Clapham. Hat tip to our colleague Bill Schabas, who served as an examiner at the defense.
Heartfelt congratulations!

Write On! Transnational arbitration conference

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

In my role as Chairman of the Academic Council of the Institute for Transnational Arbitration, I'm pleased to share with IntLawGrrls readers a call for papers to be presented at the ITA's 2d Annual Winter Forum, to be held January 24 and 25, 2013, at the Biltmore Hotel (below) in Miami, Florida. (photo credit)
The first half of the Winter Forum will showcase two works in progress selected pursuant to a call for papers, encompassing presentations by authors, commentary by internationally recognized academics and practitioners, and interactive discussion among all participants.
After a conversation over lunch with renowned authority Gary Born, chair of the International Arbitration Practice Group of WilmerHale, the Winter Forum will feature a candid discussion under the Chatham House Rule of topical questions raised by participants (Tylney-Hall style), before concluding with a select year-in-review of noteworthy events in international arbitration.
We are now inviting submission of proposals on international arbitration. All proposals must be submitted via e-mail to ITAWinterForum2013@gmail.com.
Deadline is September 1, 2012.
Any questions should be directed to either of the ITA Winter Forum 2013 Co-Chairs, Florida-based attorney Joseph Matthews (Joseph@colson.com) or Pacific McGeorge Law Professor Jarrod Wong (jwong@pacific.edu).
Full details here.

Introducing Kamari Maxine Clarke

It's our great pleasure today to welcome Dr. Kamari Maxine Clarke (left) as an IntLawGrrls contributor.
Kamari is a Professor of Anthropology and International and Area Studies at Yale University. She's also the founding Director of the Yale Center for Transnational Cultural Analysis, an interdisciplinary unit devoted to study of transnationalism, global formations, cultural and international change, especially in the global South, and Chair of the Yale Council on African Studies, which supports and coordinates study of Africa at the university. In addition, Kamari's a founding partner of the Leadership Enterprise for African Development, a Yale-Harvard collaboration that endeavors to increase leadership and governance capacity in public, business, and civil society sectors in Africa.

Initially educated in Canada, Kamari earned a master's in law at Yale and a Ph.D. in Political Anthropology at the University of California, Santa-Cruz. Her research examines issues related to religious nationalism, legal institutions, human rights and international law, and the interface of culture, power, and globalization. Her many publications include the 2009 book Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa, as well as a 2010 essay collection that she co-edited with anthropologist Mark Goodale, entitled Mirrors of Justice: Law and Power in the Post-Cold War Era.
Kamari draws upon this research for her 2-part series of IntLawGrrls posts (Part 1 here, Part 2 here). The series considers how the post-Cold War revival of international criminal adjudication is playing out in Africa, where International Criminal Court intervention has raised debate about peace and justice, and where viewers of a U.S.-made viral video have been asked to contribute to the capture of Ugandan warlord Joseph Kony. The series is based on Kamari's presentation at the March annual meeting of the American Society of International Law. It makes its IntLawGrrls début today amid debate (see here and here) over the significance of Uganda's recent capture, in the Central African Republic, of a Kony lieutenant.
As did another IntLawGrrls contributor, Lindsay Harris, Kamari dedicates her post to Wangari Muta Maathai (left), the Kenyan activist, leader of the Green Belt Movement, and the 1st African woman to win the Nobel Peace Prize. (photo credit)

Heartfelt welcome!

Universal jurisdiction rises from the global South

JOHANNESBURG – One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies. It is true that many of the recent transnational cases involve European courts, while the defendants come from Africa or Latin America. But two cases – each from a different hemisphere – show that as universal jurisdiction provisions become a more regular feature of national law, countries of the South can, and do, make use of them in egregious cases of international crimes.

South Africa

In a judgment issued Tuesday, South Africa’s North Gauteng High Court (Judge H.J. Fabricius) ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe. (credit for photo of the Pretoria courthouse)
As IntLawGrrl Diane Marie Amann also discusses in her post below, the case involved allegations, contained in a dossier provided to police and prosecutors by the Southern Africa Litigation Centre and Zimbabwe exiles, that high-ranking officials from Zimbabwean President Robert Mugabe’s political party ordered police to storm the offices of the opposition MDC party on March 27, 2007. Over a hundred people were alleged to have been detained and severely tortured, as part of a widespread and systematic campaign against the MDC. Several of the named defendants traveled regularly to South Africa, although none was identified as being present when the case was heard.
South Africa’s 2002 Rome Statute of the International Criminal Court Act domesticates the Rome Statute. It orders courts to apply the Act, the Constitution, and also allows them to apply the Rome Statute itself as well as customary international law and comparative law:
► Section 1 incorporates the Rome Statute crimes.
► Section 4(3) provides the following:

'In order to secure the jurisdiction of a South African court for purposes of this chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if …
'c. that person, after the commission of the crime, is present in the territory of the Republic; or
'd. That person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.'

► Section 5(1) requires the consent of the Director of Public Prosecutions to initiate a prosecution.
The South African authorities refused to open an investigation, alleging that, first, the information they had received from the two NGOs was insufficient, and that, secondly, there was no point investigating because the Zimbabwean authorities were unlikely to cooperate, all the evidence was in Zimbabwe, and moreover opening an investigation would likely chill relations with the Zimbabwean police and create political problems. Finally, the government argued, the Act required presence of the defendants to prosecute, and none of the defendants had been shown to be present.
The court rejected all these arguments:
► It found that there was a clear difference between investigation and prosecution, and that all sides agreed that there was reasonable suspicion of criminal acts within the meaning of the Act: that was enough to trigger an investigation. The political and practical difficulties in proceeding were extraneous to the decision to investigate; in effect, the police were ordered to “see how far you get,” including by invoking mutual assistance treaties.
► Moreover, the court found that if the police could not initiate an investigation for crimes committed outside South Africa, the ICC Act would be rendered meaningless. Presence of the defendant was not required in the investigative phase, although it was necessary for trial. The court ordered the police, in collaboration with the prosecutor’s Priority Investigation Unit, to investigate the case, although it made clear that the police were not required to bring any witnesses from Zimbabwe and could not guarantee the safety of any who volunteered testimony. At a later stage, the Director of Public Prosecutions was directed to decide if there was enough evidence to move from investigation to prosecution.
The decision will no doubt at least put a crimp in the travel plans of a wide range of Zimbabwean ZANU-PF party and government officials.

Argentina
At the same time, in a different hemisphere, the universal jurisdiction tables were turned. Investigations proceed in an Argentine case involving the commission of crimes against humanity in Spain’s 1930s civil war.

Complementarity in action: Applying South Africa's ICC Act, national court orders South African prosecutors to investigate torture in Zimbabwe

By means of a fascinating application of complementarity under the Rome Statute of the International Criminal Court, South African prosecutors must investigate allegations of torture committed in Zimbabwe.
So ordered the High Court of South Africa Tuesday, in its judgment in South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other government units.
Complementarity, of course, is the principle that allots jurisdiction over crimes punishable under the 1998 ICC Statute; specifically, genocide, war crimes, and crimes against humanity. (As posted earlier this week, the crime of aggression may one day be added to that list.) The statute's preamble states:

'[T]he International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.'

The global community thus looks first to countries to pursue persons suspected of ICC crimes.
And Tuesday's ruling requires one national system to do just that.
In his 98-page judgment, Pretoria-based High Court Judge Hans-Joachim Fabricius reversed prosecutors' 2008 rebuff of the request from 2 applicant NGOs for an investigation into "into acts of torture as crimes against humanity committed by certain named perpetrators in Zimbabwe."
Of special note:
The national order for a transnational investigation issued notwithstanding the fact that the ICC itself cannot exercise jurisdiction over acts in Zimbabwe, a state not party to the ICC statute.
As IntLawGrrl Naomi Roht-Arriaza further discusses today in her post from Johannesburg, the applicants sought investigation of an event alleged to have taken place on March 27, 2007, in Harare, Zimbabwe's capital. Paragraph 8 of the judgment states:

'Zimbabwean police, under orders from the ruling party, the Zanu-PF, raided the headquarters of the opposition party, the Movement for Democratic Change (“MDC”). Over one hundred people were arrested and taken into custody, amongst them were MDC supporters and officials, as well as persons who worked in near by shops and offices. Individuals affiliated to the MDC were detained for several days, and were continuously and severely tortured ... on the basis of their association with the MDC and their opposition to the ruling party.'

It's further alleged that these acts of torture were "'inflicted by – and at the instigation of and/or consent or acquiescence of public officials" as "part of a widespread and systematic attack on MDC supporters and officials and those opposed to the ruling party, the Zanu-PF."
Authority for the court's order is twofold: South Africa's Constitution and a South African statute, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
Here's the reasoning by which applicants successfully invoked South Africa's ICC Act:

'[I]n the light of the collapse of the Rule of Law in Zimbabwe, concern for the safety of the victims, and the unlikely-hood of securing accountability in a Zimbabwean court ... South Africa was legally required to investigate war crimes, crimes against humanity and genocide, regardless of whether they were committed in South Africa or by South African nationals, those responsible could and should be held accountable under South African law designed for this very purpose.'

One hears echo of the "unwilling or unable" requirement of complementarity as set forth in Article 17(a) of the Rome Statute.
The Pretoria court agreed with applicants' reasoning.

Interfaces: international & national legal orders

The Amsterdam Center for International Law (ACIL) this year has been organizing a research group called "Interfaces".
International scholarship has been producing a number of studies as to the reception of international law by the national legal order. The research group "Interfaces" looks at the inter-order interactions from the international side, and seeks to examine the reestablishment of international law's relationships with national law. (A prior post on the research group is here.)

Three standpoints to capture the interfaces between national and international legal orders

The interfaces between the two legal orders can be captured from three analytical standpoints:
► how national law accepts or resists international law;
► how the legal orders interact in an "in-between" space; and
► how international law understands, accepts, or resists national law.
While the ACIL's research group will continue to study the first standpoint (i.e., the reception of international law at national level), its main focus is on the latter two standpoints, and examines how, mediated through an in-between space and in-between norms, the national reception of international law wings back and develops international law.

The in-between space

As concerns the in-between space, the group looks at how the responses in national law (including national court decisions) to international law and vice versa are mediated by norms and processes in an in-between space that are not formally part of national law or international law, but that are relied upon by relevant actors.
Such in-between norms may be studied from two different levels. First, there are norms that are "common" to constitutional principles of states, which also relate to international law—even though they have yet to be part of formal international law. Examples may include be democracy and the rule of law. Second, there might also be in-between norms which govern the "manner" of interactions between national and international law. Examples may be the principle of subsidiarity, the margin of appreciation, and comity.

The face of international law

With respect to the standpoint of the face of international law, the group examines the inter-related question how the increased interactions with national law have reestablished the reception of national law by international law and to some extent the meaning of international law itself.
While the receiving modes vary considerably according to the areas of international law, three dimensions as to how international law is faced with national law are particularly relevant. First, international law may give legal effect to national law (and decisions) beyond the limited “state practice” value; second, it may keep subtle distance from national law; and, finally, it would engage in interpretive harmonization with respect to the substance of law.

Internationalization of Law: Diversity, Perplexity, Complexity

(Pleased to shared the prepared-text versions of remarks I delivered at yesterday's American Society of International Law annual meeting luncheon, at which I was introduced by my colleague, U.S. Supreme Court Justice Stephen Breyer, and further was honored with the Prominent Woman in International Law Award)

It is a real pleasure to visit with old friends like Justice Breyer – whom I wish to thank for his kind introduction – and to make new friends at this lovely event.
It is also a great honour to receive this recognition from WILIG, the Women in International Law Interest Group of the American Society of International Law, at this annual meeting that is devoted to “Confronting Complexity.” I draw from this honour strong support for my own writings, which reflect the non-compartmentalized – some might even say non-academic – way that I look at today’s legal world.
In my research I have continually confronted complexity.
I have looked frequently to comparative law and to international law, of course, but also to other disciplines. In mathematics, I looked to the concept of “fuzzy logic” to help explain movements in legal pluralism. Meanwhile, looking at paintings by artists like Maria Elena Vieira (above), and listening to music by composers like my friend Pierre Boulez, I have found insights into the world order – and disorder. (image credit)
As one of my colleagues put it in French, “Tu mélanges tout” – “You mix everything up.”
It’s true. I mix up different topics, and I look at them through different lenses.
Even within the law, I have looked at different topics, among them criminal law, human rights law, the law of public goods, environmental law, trade law, and labor law – also, laws relating to new technologies, such as the Internet and biomedicine.
The “different lenses” are not only the separate categories of law that interest me – national, or comparative, or even international law – but also, and more importantly, the ways that these bodies of law interact.
According to my observations, the current interaction of these bodies and topics constitutes a new phenomenon, which I call the “internationalization of law.”
The term is meant to describe a dynamic process, one that opens up legal systems and blurs the formerly entrenched borders between what is “internal” and what is “external.”
In French, the term is “internationalisation du droit,” also known by its acronym, “ID.” And so the réseaux, or study networks, that I have established have been named Réseaux ID.(above left).
If I may let you in on a secret, the term has a second meaning.
That acronym suggests this second, hidden meaning, given that “ID” also may stand for “imagination et droit.” In fact, the same is true in English – “internationalization of law” invites the acronym “IL,” which in turn may stand for “imagination and law.”
These thoughts provoke questions:
► How does this phenomenon of internationalization develop?
► And why is imagination necessary?
In looking for answers, I am in agreement with the theme statement for this annual meeting. My starting point, too, is “contemporary reality.” And I fully agree with the way that the statement describes that reality – as “confoundingly complex,” and “marked by rapidly evolving technologies, increasing global interconnectedness, rising population, and deepening understanding of science and the environment.”
Finally, I agree with the statement’s ultimate question. We both ask: Is law capable of responding to the challenges of complexity?
I propose 3 words that summarize – even sonorize, as if making a song – my answers. They are:
► First, ‘diversity;
► Second, perplexity”; and
► Third, “complexity.”
To grapple with diversity – as we must, in my view, because it is the best way to avoid hegemony – and to solve perplexity – necessary because of the risks of arbitrariness and disorder – we have to introduce, into law itself, complexity. And that is why we need imagination.
Let me discuss each of these concepts in turn.

Go On! "Transnational Litigation"

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

From our colleagues Austen Parrish (Southwestern) and Christopher A. Whytock (California-Irvine) comes word of a symposium they're organizing. Entitled Our Courts and the World: Transnational Litigation and Civil Procedure, it's set for Friday, February 3, at Southwestern Law School in Los Angeles, California.
To be discussed:
► Procedural issues arising in transnational civil litigation;
► The degree to which courts are receptive to transnational litigation; and
► Issues related to transnational class actions.
Among the many scheduled speakers are a number of women: Montré D. Carodine (Alabama), Erin O’Hara O’Connor (Vanderbilt), Cassandra Burke Robertson (Case Western), Linda J. Silberman (NYU), Linda Sandstrom Simard (Suffolk), Janet Walker (Osgoode Hall-Toronto), and Rhonda Wasserman (Pittsburgh).
Cosponsors are the American Society of International Law, the Junior International Law Scholars Association, and the International Law Sections of the the Los Angeles County Bar Association and State Bar of California. Proceedings and papers will be published in the Southwestern Journal of International Law.
Details and registration here.

Go On! ASIL International Law in Domestic Courts Interest Group

(Delighted to welcome back alumna Chimène Keitner, who contributes this Go On! guest post)

The American Society of International Law International Law in Domestic Courts Interest Group is holding its annual works-in-progress meeting on December 16, 2011, at Brigham Young University Law School in Provo, Utah (shuttle service will be provided to and from the Marriott City Center in Salt Lake City). The workshop agenda is available online here.
ASIL members and non-members are welcome to attend. Registration information is available online here.
Paper presenters and commentators include two IntLawGrrls alumnae, Professor Vivian Grosswald Curran, of Pittburgh Law, and Professor Peggy McGuinness, now at St. John's Law, as well as Jodie Kirshner, a Lecturer at Cambridge, and Professor Kristina Daugirdas, of Michigan Law.
Interest group co-chairs -- Paul Stephan, Edward Swaine, and yours truly -- welcome you to join us at BYU and at future group meetings.

Guest Blogger: Janet Austin

It's IntLawGrrls' great pleasure to welcome Janet Austin (right) as today's guest blogger.
Janet's an Assistant Professor of Law at the University of New Brunswick, where she teaches Securities Law, Criminal Law, and Corporate Crime. She's also a Ph.D. Candidate at Osgoode Hall Law School, York University, Toronto; her dissertation examines the enforcement of transnational violations of securities laws, in particular insider trading and stock market manipulation.
In her guest post below, Janet examines a potential model for enhancing compliance in transnational regulatory networks, particularly those in the global financial sector.
Before joining the New Brunswick law faculty in 2010, Janet was a Lecturer at the University of New South Wales in Sydney, Australia, from which she'd earned B.Com. and LL.B. degrees. She also holds an LL.M. from the University of Sydney. Janet spent many years as a senior prosecutor, with a focus on white collar crime, at the Office of the Commonwealth Director of Public Prosecutions in Australia. Janet also practiced as a lawyer at the Australian Securities and Investments Commission and for private commercial law firms.

Heartfelt welcome!

Compliance & transnational regulatory networks

(Thank you to IntLawGrrls for inviting me to contribute this guest post)

A number of transnational regulatory networks have appeared and/or expanded in power and influence in the last few decades. These networks are characterised by their members being national regulatory agencies rather than nation-states. They also tend to have no international status beyond that conferred by the national law of their host countries.
Transnational regulatory networks seem to be particularly prevalent in relation to financial regulation. Examples include: the Madrid-based International Organization of Securities Commissions, known as IOSCO; the International Association of Insurance Supervisors, based in Basel, Switzerland; and the Basel Committee on Banking Supervision (red oval logo below left).
These networks also exist in other areas: in competition law may found the International Competition Network; in environmental law, there's INECE, the Washington-based International Network for Environmental Compliance and Enforcement; and in criminal law, INTERPOL, the International Criminal Police Organization based in Lyon, France.
One of the reasons why these networks have grown in importance is because of the failure of the treaty process to solve some global problems. The treaty negotiation process is often time consuming and complex and is particularly inappropriate to problems which require a more immediate solution. In contrast transnational regulatory networks linked by technology can work quickly to make policy recommendations to their members. As such governments are increasingly turning to these networks for more timely solutions to global problems.
The importance of these networks in global governance and their growing power and influence has been documented in the literature, particularly in the work of Dr. Anne-Marie Slaughter (right), the Bert G. Kerstetter '66 University Professor of Politics and International Affairs at Princeton University and former Director of Policy Planning for the U.S. Department of State. (credit for photo by Denise Applewhite) Slaughter sees these networks as a solution to what she calls is the global paradox, that is, the need for global government for global problems but people being distrustful of global government. However one of the main difficulties of using these networks as the solution for global problems is that their agreements, guidelines, policy statements, etc generally have no international legal status and impose no binding obligations. As such these networks are usually limited to relying upon ‘soft law’ techniques such as networking, socialization, discussion and persuasion to have members adopt their recommendations. Soft law however creates a ‘compliance challenge’, compliance often being dependent upon coercion, self interest and the legitimacy of the proposed law.
In my article IOSCO’S Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information – A model for international regulatory convergence?, I consider the growth of one of these networks.
In particular, I example IOSCO's Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information. This Multilateral Memorandum standardizes the process by which securities commissions that are members of IOSCO can obtain information from other member securities commissions for enforcement purposes.
It appears that IOSCO envisages that this Multilateral Memorandum will become a key weapon in the arsenal of securities commissions to tackle securities offences which increasingly no longer respect jurisdictional boundaries. However, the impact of this Multilateral Memorandum appears to be more significant than just a mechanism to exchange information. This is because countries are required to have in place certain laws which mirror IOSCO’s recommendations for securities regulation before they may become a signatory to the Multilateral Memorandum. Members who want access to it, and who don’t have such laws in place, must first secure change in their domestic legislation. It therefore appears that IOSCO is using this Multilateral Memorandum as a ‘carrot’ in its efforts for members to adopt the organization’s model for securities regulation.
IOSCO is using the Multilateral Memorandum in its mission to achieve international convergence of securities regulation.
In the article, I also examine whether other transnational regulatory networks could use this model of developing a ‘carrot’ – that is, something members want access to– in their efforts to secure compliance of members to an international agreement.
Put another way, I pose the question as to whether the ‘carrot’ mechanism may offer a solution to the ‘compliance challenge’ of these networks. I conclude that it could. Mechanisms which work towards improving enforcement outcomes of regulators are likely to be the most successful. This is because the elimination of crime, in particular economic crimes, is one area in which the preferences of countries and regulators are most likely to converge.

On June 14

On this day in ...
... 2004, the U.S. Supreme Court delineated the extraterritorial reach of federal antitrust law, issuing its judgment in F. Hoffman-La Roche Ltd. v. Empagran S.A. Congress had enacted the 1982 Foreign Trade Antitrust Improvements Act to keep U.S. courts from interfering with foreign commerce, the Court reasoned; therefore, claims under the seminal antitrust law, the 1890 Sherman Act, were held not to be applicable to foreign price-fixing schemes that had no domestic effects. In his opinion for the Court, Justice Stephen Breyer (left) (photo credit), among the Court's most avid practitioners of transnational judicial dialogue, wrote:

'Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?'

(Prior June 14 posts are here, here, here, and here.)

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.

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.