David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties.[1] I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties.[2] In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic.[3] But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson.[4] Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster.[5] I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends.

The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation.[6] Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do.[7] This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation.[8] This, Professor Sloss argues, is entirely a matter of U.S. domestic law, not a matter of treaty interpretation.[9] Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent.[10] Professor Sloss notes that treaties seldom address the question of which domestic officials—legislative, executive, or judicial—are responsible for enforcing the treaty.[11] Instead, treaty parties almost always leave that question to the domestic law of the states-parties.

Professor Sloss is entirely correct to note that seeking the answer to this question in the treaty itself is highly problematic. Although there is nothing in international law that prevents states from addressing that question in the treaty itself, the fact is that states almost never do so.[12] Domestic officials take their cues from domestic law, and states have very different constitutional rules concerning the need for legislative implementation of treaties.[13] In the United Kingdom and most nations of the British Commonwealth, treaties are never enforceable in the courts until they have been implemented by legislation.[14] The constitutional law of other countries permits the direct judicial enforcement of some treaties but not of others.[15] In the United States, for example, treaties that require the criminalization of conduct or the appropriation of money must be legislatively implemented because the Constitution has been interpreted to require a statute for those purposes.[16] Because of the diversity of domestic constitutional rules on the question, states rarely, if ever, address the issue of domestic implementation in the treaties they conclude. Seeking an answer to the self-executing question in the treaty itself is thus, in Justice Breyer’s words, like “hunting [for] the snark.”[17]No matter how hard they look, the courts will almost never find an answer there.

I.        Introduction

The Christian community in Iraq has survived conquests by Arabs, Huns, and Turks over the two millennia since the birth of Christianity. However, the latest danger to Iraq’s Christians, who include Assyrians, Chaldeans, and Catholics, poses the largest threat that this community has faced yet. In post-Saddam Iraq, a lethal combination of a Western “other” Christian identity, Islamic extremism, and a depressed economy has taken an enormous toll on Christians in Iraq. Their communities all over the country have been devastated by violence against men, women, children, and community symbols like priests, bishops, and churches. Because they only numbered about 1.5 million before the fall of Saddam Hussein, these attempts to terrorize and scare away Christians threaten the very existence of Christianity in Iraq.

In response to violence inside Iraq, many Christians have fled the country or become internally displaced, fleeing to traditionally Christian areas in Northern Iraq. Though their situations outside Iraq as registered or unregistered refugees may be difficult, those who are a part of the Christian Iraqi diaspora are hesitant to return to their homeland due to the systematic violence and discrimination they have faced and may face again. Can international action or internal, government programs do anything to save Christianity in Iraq?

To answer this question, I will address a number of issues. First, I will explore the underlying causes of the historical violence against Christians, taking a deeper look at the construction of the Christian identity as the Western “other.” Second, I will consider the current situation facing Iraqi Christian refugees and internally displaced peoples. Finally, I will propose remedies that seek to encourage Christian Iraqis to either remain in or return to Iraq. These remedies include 1) deconstructing Christians’ “other” identity through constitutional changes and civil society initiatives, 2) creating a semi-autonomous “safe haven” for Christians inside Iraq, and 3) encouraging international economic assistance to revive devastated Christian communities. Though my suggestions are to promote a continuing Christian presence in Iraq, they are by no means a definitive solution. There is still time to save Christianity in Iraq, but it remains uncertain whether the community will ever fully recover from the devastation of the last ten years.

I.        Introduction

Kevin Heller’s essay A Sentenced-Based Theory of Complementarity marks a significant contribution to the growing scholarship on the International Criminal Court (ICC) and complementarity.[1] His proposed re-thinking of the complementarity regime is original and helpful in highlighting existing policy dilemmas of ICC practice. A “sentence-based” heuristic is appealing in its clarity and its objective to facilitate effective repression. Nevertheless, like Darryl Robinson,[2] I share some hesitation regarding the central claim of this theory. In my view, the argument that the ICC should focus “exclusively on sentencing” when determining whether “ordinary” crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

II.     Underlying Assumptions

Heller’s case for a deviation from existing approaches relies on four basic premises: (i) the claim that the ICC admissibility test[3] creates undue pressure to charge international crimes under an international label, (ii) the alleged disadvantages of domestic prosecution of international crimes, (iii) the advantages of a “sentencing” heuristic over threat-based compliance, and (iv) the assumption that “higher” sentences might create “better” justice.[4] All four key assumptions merit further critical reflection.

The principle of complementarity, which governs the International Criminal Court (ICC), will inevitably require some difficult determinations about whether a national proceeding warrants deference. One may discern in the literature three major theories about what the ICC should scrutinize when it assesses a national proceeding: the nature of the charges laid, the severity of the sentence imposed, or the quality of the process adopted. These three approaches are not necessarily mutually exclusive; they can be combined in different ways and with different emphases to create plausible schemas.

Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion.[1] He advances an important and convincing critique of approaches that would focus on the domestic or international nature of the charges or on the relative gravity of the charges.[2] He proposes to replace such approaches with one focused on the sentence.[3] While Professor Heller may be successful in showing that a sentence-based approach is superior to a charge-based approach, I will argue that a sentence-based approach also raises some serious difficulties that have not been addressed. I will therefore suggest a third option, a process-based approach. I believe that a process-based approach is not only the best fit with the Rome Statute (the positive law); it is also the most elegant theory.[4] Under a process-based approach, the Court can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process.

While I have reservations about the more radical proposal to adopt a new approach to complementarity that focuses exclusively or even primarily on sentence severity, I believe that A Sentence-Based Theory of Complementarity offers two important insights. The first demonstrates the very limited role that should be accorded to “charges.”[5] The second demonstrates the potentially important role that can, in some circumstances, be accorded to “sentences.”[6] I would absorb these insights into a process-based theory.

Heller also raises concerns about the “same conduct” test adopted by the ICC.[7] Similar concerns have been raised in other recent thoughtful scholarship,[8] so it is valuable to inspect the concerns here. While I agree that some flexibility is needed, I hope to show that the problem is actually much narrower than is often perceived in the literature. The Rome Statute already provides solutions to the scenario where a state wishes to prosecute a person for a different crime. These solutions include a consultation mechanism to prioritize cases as well as the “interests of justice” test. In my view, stretching the admissibility regime to cover such scenarios is not only unnecessary but would generate incoherencies. Thus, while I partly agree with the concerns raised by Heller and others, I will argue for a much narrower solution.

All references to “admissibility” in this comment concern the complementarity aspects of the Rome Statute—Article 17(1)(a)–(c))—and not the distinct issue of “gravity” (Article 17(1)(d)).

David Landau’s article, The Reality of Social Rights Enforcement,[1] is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable.[2] Not “whether,” but “how” is the question now on the table among serious scholars and judges.

Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms—individual actions primarily seeking individual-level affirmative relief,[3] negative injunctions, weak-form review, and structural injunctions—and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure.[4] Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.

As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles.[5] Many of the world’s poorest nations have severely limited internal economic resources.[6] Political obstacles are substantial even when resources are available or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small.[7]

One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights. Yet, as Landau persuasively argues, individual actions are likely to provide social and economic rights primarily for those in the middle classes, not for the least advantaged.[8] The reason is that those in the middle classes are more likely than the least advantaged to have the ability to mobilize the legal system in an individual action. They have the requisite knowledge and have access to legal assistance to bring these actions. In short, they have a better “support structure” for securing rights, to use political scientist Charles Epp’s term.[9] Landau acknowledges that nongovernmental organizations and similar agencies, some associated with the state itself, can provide education about legal rights and legal assistance to the least advantaged.[10]However, the resources devoted to such efforts are unlikely to overcome the structural advantages the middle classes have in individual actions.

The iron rule of the Asad dynasty over Syria’s people is forty-two years old. It began in 1970 when then Defense Minister Hafez al-Asad carried out a bloody coup against his own party colleagues and appointed himself president. Hafez, the family patriarch and dictator for life, killed or jailed companions he perceived as his rivals, supported violent extremism whenever he found it useful, and plundered Syria’s riches while arresting and torturing any dissenter. Over two generations of Asads, a brutal government in Damascus has been the main Mideast ally of an increasingly belligerent Iran. Bashar al-Asad, the son, has acted as the chief facilitator for Sunni extremist killers in Iraq over the past ten years. In Lebanon, Asad’s father and son have wrought havoc since 1975, killing in turn Palestinians, Muslim Lebanese, Christian Lebanese, and whoever dared help the return of stability to a country torn asunder. They assassinated the most prominent Lebanese leaders who stood in their way, including Kamal Jumblat in 1977, Bashir Gemayel in 1982, and in all likelihood Rafik Hariri in 2005. Operatives of self-proclaimed “Loyal to Asad’s Syria” Hizbullah are now under indictment before the Special Tribunal of Lebanon for Hariri’s murder, and scores of journalists and politicians along with hundreds of other innocent people have been assassinated, “disappeared,” or randomly killed.

Most tragically, the Asads never hesitated to commit mass murder against the Syrians. Hama’s historic center was leveled to the ground in 1982, and the relentless siege, bombardment, and mass killing continues to this day a pattern of ruthless governance across the country, with Homs the latest victim.

Both the future of the Middle East and the success of the formidable nonviolent mass movement in Tunisia, Egypt, Bahrain, and Yemen depend on what happens next in Damascus. If the dictatorship survives, if its main pillars are not brought to justice on the way to a democratic transition, Asad’s continued rule will doom domestic and international peace in the region and beyond. Why? Because the nonviolent movement will find it hard to recover from this blow.  Asad’s regime itself will have its own noxious effect on peace. Yet more deeply, more world-historically, it will be harder—much harder—to argue to any brave young man or woman cleaving to nonviolence that this path, although potentially bloody in sacrifice, is the right form of resistance to tyranny.

Our joint reflection seeks to bring recognition to the unparalleled bravery and sustained nonviolent resistance of Syria’s revolution and to provide concrete political means to help end the forty-two year long reign of death and fear. Drawing on the appropriate tools of international law and the strength of Syrian revolution, the ends and the means of the strategy proposed must remain worthy of the sacrifice of Syria’s thousands of nonviolent demonstrators.

Intellectual property rights (IPRs) are often conceived narrowly from the vantage
point of offering incentives for private sector investment in research and
development (R&D), but the legal regime of IPRs can also work to improve access to
public goods for global health, particularly for those disadvantaged by destitution and
disease. The WHO Global Strategy and Plan of Action on Public Health, Innovation
and Intellectual Property (GSPOA), adopted by the World Health Assembly in 2008,
calls for an “enhanced and sustainable basis for needs-driven, essential health research
and development relevant to diseases that disproportionately affect developing
countries.”1 How knowledge is generated, owned, and harnessed to support pro-poor
development is at the heart of this effort. New approaches to tiering, pooling, and
open-source collaboration have resulted from the struggle to deliver affordable
treatments for AIDS and neglected diseases. In examining how intellectual property
rights can most effectively and strategically support developing countries in
implementing this ambitious and potentially catalytic agenda in enabling innovation
for global health, this paper seeks to outline a coherent and strategic approach to
address human development needs and to facilitate the harnessing of innovation and
the sharing of knowledge for global health.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Over the past decade, China and India have rapidly increased their use of antidumping laws, the world’s most dominant form of trade protectionism, against their trading partners. Yet, this behavior has triggered little concern in the United States and Europe. Why? Two leading theories suggest that the recent spike in Indian and Chinese antidumping measures is temporary. Moreover, the balance of benefits under existing international legal rules continues to favor American and European producers. As a result, the United States and European Union have viewed attempts to reform global antidumping laws as against their interests.

This Article challenges this conventional wisdom. It argues that India and China’s antidumping regimes pose a larger long-term threat to the global trade regime than is commonly believed. Through novel empirical tests of the two leading theories, I demonstrate why China and India’s recent increase in antidumping protectionism is not temporary and not destined to level off. Instead, as more industries discover the benefits of antidumping laws and as China takes a more aggressive retaliatory stance against its trading partners, both countries’ use of antidumping sanctions will likely continue to increase. To guard against this increased protectionism, this Article argues that World Trade Organization members should reverse their opposition to reforming global antidumping rules and instead enact proposals that place greater restrictions on antidumping laws. It highlights why the present moment is an opportune time for reform, but notes that the window for reform is likely to close as China and India acquire increased economic strength.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Article 17 of the Rome Statute prohibits the International Criminal Court (“ICC”) from pre-empting a national prosecution of an act that qualifies as a war crime, crime against humanity, or act of genocide unless the State is “unwilling or unable genuinely to carry out” that prosecution itself. Scholars have long debated to what extent Article 17 permits states to prosecute international crimes as ordinary crimes. Proponents of the hard mirror thesis argue that such prosecutions never satisfy the principle of complementarity, because the mere act of prosecuting an international crime as an ordinary crime indicates that the state is unwilling or unable to genuinely prosecute. Proponents of the soft mirror thesis, by contrast, accept that prosecuting an international crime as an ordinary crime does not necessarily mean that the state is unwilling or unable to prosecute, but nevertheless insist that states should prosecute international crimes as international crimes whenever possible, because such prosecutions guard against unwillingness determinations and better promote the Rome system of justice.

This Article challenges both theses, demonstrating both that the best reading of the Rome Statute is that states are permitted to prosecute international crimes as ordinary crimes and that discouraging states from prosecuting international crimes as ordinary crimes is counterproductive, because national prosecutions of ordinary crimes are far more likely to succeed than national prosecutions of international crimes. This Article then defends an alternative theory of complementarity that focuses exclusively on sentence. It addresses how the Court should distinguish between acceptable and unacceptable national prosecutions of ordinary crimes. It argues that the traditional complementary heuristic, which limits states to prosecuting “serious” ordinary crimes that are based on the same conduct the ICC is investigating, is inadequate and should be replaced by a heuristic in which any national prosecution of an ordinary crime satisfies the principle of complementarity as long as it results in a sentence equal to, or longer than, the sentence the perpetrator would receive from the ICC. This Article also addresses the most serious objection to a sentence-based complementarity heuristic: namely, that prosecutions for ordinary crimes fail to capture the greater expressive value of international crimes. The Article concludes by discussing less radical alternatives to the sentence-based complementarity heuristic and expresses the hope that, because of increased national capacity to prosecute international crimes as international crimes, such a heuristic may eventually be unnecessary.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts.

Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create.

To provide a cogent answer to domestic implementation questions, courts must analyze domestic constitutional and statutory provisions to determine which government officials have the domestic legal authority and/or duty to implement the treaty. The inquiry necessarily begins with treaty interpretation: courts cannot properly resolve domestic implementation issues without first ascertaining the nature and scope of the international obligation. Having determined the content of the international obligation, though, the treaty interpretation inquiry is complete. The second step of the analysis necessarily moves beyond treaty interpretation to consider domestic laws delineating the powers and duties of various government officials and institutions. This two-step approach provides the best explanation of Marshall’s opinion in Foster.

The intent-based doctrine is founded on the mistaken view that self-execution is a single question to be answered by treaty interpretation analysis. In contrast, the two-step approach recognizes that the question whether a treaty is self-executing is actually two very different questions masquerading as a single question.The two-step approach directs courts to address domestic treaty implementation issues by abandoning their quest for a fictitious intent of the treaty makers, and considering a variety of domestic constitutional and statutory provisions that actually address the allocation of domestic authority over treaty implementation.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights but should do so in a weak-form or dialogical manner, whereby they point out violations of rights but leave the remedies to the political branches. These scholars argue that by behaving this way, courts can avoid severe strains on their democratic legitimacy and capacity. Based on an indepth case study of Colombia, which draws on my extensive fieldwork within that country, and on evidence from other countries including Brazil, Argentina, Hungary, South Africa, and India, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefitted middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

In June 2010, the U.S. Supreme Court issued a momentous decision in
Morrison v. National Australia Bank, upending decades of federal appeals
court precedent in transnational securities law. The Court established a
bright line, transaction-based test for when Section 10(b) (“Sec. 10(b)”) of
the Securities Exchange Act of 1934 (“Exchange Act”) can apply extraterritorially.
Morrison essentially requires that the fraud-related transactions at
issue be conducted in the United States to allow a claim for relief in U.S.
courts. This has had a significant impact on securities litigation because
Sec. 10(b) and its implementing regulation, Rule 10b-5, provide the most
common cause of action for securities fraud in the United States.

This new test has resulted in a narrower field for private Sec. 10(b) litigation
than that available under the dominant regime before Morrison, the
Second Circuit’s conducts and effects test (“conducts-effects”). Lower federal
courts, principally the Southern District of New York (“SDNY”), have
already cited Morrison to dismiss multiple Sec. 10(b) cases with a transnational element. But this effect may well be short-lived. In July 2010, with
the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-
Frank Act” or “DFA”), Congress restored conducts-effects for transnational
securities fraud suits brought by the U.S. government, while also directing
the Securities and Exchange Commission (“SEC”) to conduct a study on
whether and to what extent a private right of action should be extended
beyond Morrison’s transactional test.

For years before Morrison, the conducts-effects test was consistently criticized on the grounds that it was overly broad and unevenly applied. While
Morrison answered those who called for predictability, the Dodd-Frank Act’s
partial overruling of the decision has, at least for the moment, infused this
area of law with more ambiguity than it had pre-Morrison. Courts, shareholders,
and companies will continue to operate in this uncertain state until
at least early 2012, when Congress will receive the SEC’s report on private
rights of action and decide how to finalize the extraterritorial scope of that
realm of law.

The financial, legal, and even diplomatic implications of these developments
are immense. Yet all ultimately relate to a fundamental tension arising
from the goal of ensuring that the United States is neither a “Barbary
Coast” for “international securities pirates” nor a “Shangri-La of class-action
litigation representing those allegedly cheated in foreign securities markets.” Reconciling such aims requires consideration of the ever-internationalizing
nature of corporate activity and securities markets, as well
as class-action litigation trends, the availability of securities fraud remedies
abroad, and coherence with other areas of law in which presumptions of
extraterritoriality are made.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Articles (The current PDFs are PROOFS and are not appropriate for citation as the page numbers will change. Final versions of the articles will be uploaded shortly.):

Antidumping in Asia’s Emerging Giants
By: Mark Wu

A Sentence-Based Theory of Complementarity
By: Kevin Jon Heller

Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties
By: David L. Sloss

The Reality of Social Rights Enforcement
By: David Landau

Private Securities Fraud Litigation after Morrison v. National Australia Bank: Reconsidering a Reliance-Based Approach to Extraterritoriality
By: Joshua L. Boehm

On Wednesday, September 14, I happened to sit for lunch in the faculty common room of Harvard Law School (HLS) next to Professor Alan Dershowitz, whom I had not met before. Next to him was sitting Professor Robert Mnookin, with whom I had had previous discussions about the International Criminal Court (ICC), in particular whether the recognition of the State of Palestine by the United Nations General Assembly (UNGA) would allow the Palestinian Authority (PA) to secure the ICC’s jurisdiction over potential crimes committed in the Palestinian territories.

Both Israeli Prime Minister Netanyahu and the PA President Abbas were scheduled to speak before the General Assembly the following week. The conversation at lunch drifted naturally from ICC jurisdiction to the Palestinian statehood bid, which was scheduled for discussion in my Public International Law (PIL) class the following week as a live case for testing the criteria of government and state recognition. The discussion was heating up politically and in the press, with the announcement that the United States would veto it at the U.N. Security Council (UNSC), leaving a realm of uncertainty over whether the PA would seek full U.N. membership through an application to the UNSC, or recognition as a State from the UNGA.

As the discussion with Bob Mnookin started, I realized that my immediate neighbor was the famous (and in Arab and Palestinian circles, infamous) lawyer and professor who took on, and won, difficult and controversial First Amendment and criminal cases, and who is considered the most articulate defender of Israel in the United States. He told us he was seeing the Israeli Prime Minister for dinner on Friday, September 16, which made the conversation even more concrete. An immediate ice-breaking moment resulted from introducing myself as the lawyer of the Sabra and Shatila victims in their case against Ariel Sharon and others in Belgium. Alan Dershowitz’s reaction was nuanced, and he explained in a later conversation that he was on record saying that the 1982–83 Kahan Commission had not gone far enough because it did not contain a criminal prosecution component. In a further email exchange for the present article on December 6, he clarified his position as follows . . . .

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

I. INTRODUCTION
Despite years of negotiations aimed at addressing transnational corruption, the international community has failed to establish an effective international legal regime to curb the problem. After providing an outline of the problem and a brief history of attempts to address it, this Commentary considers some possible explanations for the international community’s continuing inability to negotiate an effective agreement to crack down on firms that bribe foreign officials. The Commentary concludes by speculating that an institutionalized enforcement mechanism might provide impetus for an agreement.

II. THE PROBLEM
A. The Problems of Corruption
Corruption, “the misuse of public power for private profit,” can include practices as diverse as nepotism, patronage, misappropriation of resources, abuse of insider information, extortion, and money laundering. International attention, however, has focused largely on bribery. Of particular importance is bribery involving high government officials and procurement, privatization, or other large-scale public decisions, also known as “Grand Corruption.”
Although once accepted by some as useful “grease in the wheels,” corruption is now almost universally seen as both harmful and immoral. Corruption has been condemned by major world religions and international institutions, and bribery of government officials is illegal in almost every country.
Corruption hurts economic growth and development, creating market inefficiencies by allocating resources based on bribery rather than merit. The corruption of regulatory systems not only transfers resources from honest people to unscrupulous ones, but can also put health and safety at risk. Widespread bribery undermines “public perceptions of how—and how well—a proper market economy works,” inhibiting liberal reforms and the rule of law.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

For more than two decades, the Office of the U.S. Trade Representative (USTR) has been using the tools of trade policy to encourage U.S. trading partners to provide adequate and effective protection and enforcement of intellectual property rights (IPR). That effort has both involved and inspired considerable discussion by governments and private actors on the meaning, determinants, and importance of adequate and effective IPR protection.
This essay explores one aspect of that discussion—the determinants of effective protection—by considering three commonly held beliefs about the path to overcoming the failure of a country’s intellectual property laws to provide adequate and effective protection. Each of these ideas posits a determinant of effective IPR enforcement: The first is domestic economic interest, the second is the rule of law, and the third is political will. I aim to briefly critique each of these ideas, propose a way of fitting them together, and extrapolate a general prescription.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Each year more than eighteen million human lives end in death from poverty-related causes, fully one-third of all human deaths globally. This amounts to fifty thousand deaths per day from causes such as respiratory infections, HIV/AIDS, tuberculosis, malaria, measles, and tropical diseases. Many of these are treatable, if not curable, conditions. The numbers are overwhelming and mandate an examination of the barriers to accessing medicines in developing countries, where the majority of these deaths occur. Admittedly this is an immense and complicated issue, and the economics behind pharmaceutical innovation and access is but one facet of a complete understanding of the problem. This paper describes the context of the problems surrounding access to medicines, highlighting the tremendously complicated web of issues that prevent medicines from reaching the world’s poorest. The following sections provide a bit of background on pharmaceutical patents, international intellectual property law, the pharmaceutical industry perspective, and the complicated elements that come together to create the most significant barriers to pharmaceutical access. While the international patent system is obviously flawed and in need of improvement, it is overly simplistic to blame drug patents and the global pharmaceutical industry for the access problem. The reality surrounding the challenges of access to medicines is more nuanced. In the debate over barriers to access, the culprits include corruption, poverty, taxes and tariffs, and pharmaceutical counterfeiting. Section two presents the fundamentals of the global pharmaceutical market. Section three introduces the challenges surrounding access to medicines. Section four provides analysis, and section five concludes.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Olivier De Schutter’s The Green Rush: The Global Race for Farmland and the Rights of Land Users discusses how the conquest for arable land affects the local population in countries on the sell side of these transactions. He suggests three possible scenarios that may result from these transactions and explains why his reform proposal is superior to the others both on humanitarian and environmental grounds.

In these remarks, I will briefly summarize the main contributions of Professor De Schutter’s article. I will suggest that all three scenarios assume, at least implicitly, that the transactions can be explained in terms of simple market-based supply-and-demand models that reflect increasing food prices fueling a greater demand for land, filled by countries that have an excess of arable land and a need for foreign direct investment. Professor De Schutter suggests that there are costs involved with this model – indeed he points to classic externalities: those currently occupying or using the land – typically small peasant holders, herders, indigenous people and other marginalized groups that do not have much of a voice – will be dislocated. In addition, these transactions push towards large-scale agriculture, which is not necessarily the most environmentally sustainable form of land cultivation.

In my comments I would like to emphasize some points that may not be fully accounted for in this supply-and-demand scenario.

First, while the hunt for arable land for food may explain many of the large transnational land deals, they appear to be part of a deeper structural change – the emergence of a transnational real estate market. What explains this change?

Second, if the supply/demand story was sufficient for explaining transnational land deals, we should observe primarily countries with excess land getting into this market on the sell side. However, available data on transnational land deals suggest that many more countries are selling. Why is that? Conversely, on the buy side we should observe countries that cannot meet their current or future demands on world markets. However, this does not appear to be the case either. While many of the origin countries of major land acquirers – most of which are private – may face fuel or food shortage in the future, many other countries share that too, and yet they, or rather investors from their countries, are not buying land to meet those demands. So who is buying and why?

Finally, supposing that scarcity of arable land is indeed at the bottom of the “Green Rush,” then the relevant policy question is whether the market mechanism – even in the modified version that Professor De Schutter advocates, which makes land occupied by marginalized groups essentially nontransferable – is indeed best suited for dealing with the problem of scarcity of this particular good.

* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.