Despite the proliferation of international and transnational litigation in recent years, normative rules governing the conduct of international lawyers remain practically non-existent. Given the varied nature of international law—and the many settings in which it is interpreted and applied—it is perhaps unsurprising that international law has not been successful in regulating those appearing before international courts and tribunals. Yet international lawyers are not immune to ethical lapse and have not infrequently engaged in fraudulent and unprofessional behavior.
This Article discusses how national legal systems can fill these ethical gaps. To illustrate the point, this Article considers a recent case of transnational fraud allegedly perpetrated by a U.S. lawyer in a case involving Ecuadorian plaintiffs and a U.S. defendant. In Chevron v. Donziger, a U.S. federal district court applied a federal law—the Racketeer Influenced and Corrupt Organizations Act (“RICO”)—to an American lawyer’s misconduct in connection with an Ecuadorian suit.
In 2000, Sylvie and Dominique Mennesson, French citizens, decided to enlist the help of a surrogate from California in order to have children. Since the birth of their twins, Valentina and Fiorella, in California, the Mennessons have struggled in a legal battle to move back to France and have their children recognized as French citizens. On April 6, 2011, France’s highest court—the Court of Cassation—refused to allow French citizenship for Valentina and Fiorella. Not being recognized as French citizens created obstacles to school registration, healthcare access, and inheritances. The twins’ lack of French citizenship also meant that once they reach the age of majority, they would not have legal status and could be deported from France. Commenting on the Court of Cassation’s ruling, Mrs. Mennesson decried: “Once more the rights of our children have not been respected. We feel crushed. Our children are foreigners on French soil.” The Mennessons brought their case to the European Court of Human Rights (ECtHR), arguing that the state’s denial of citizenship to their children violated Article 8 of the European Convention on Human Rights, which provides a right to respect for one’s “private and family life, his home and his correspondence.”
The wave of international regulatory cooperation galvanized by the global financial crisis was by all measures a necessary response—financial markets are global and, in order to be effective, the regulatory response to the crisis had to be global as well. But in many ways, the best that could have been achieved was a loose system of dialogue and cooperation among the developed and developing nations concerned with the financial crisis. Now celebrating its sixth birthday and, as of this writing, preparing for the upcoming leaders’ summit in Brisbane, Australia, the Group of Twenty (G-20) has spawned an ambitious set of commitments and the Financial Stability Board has developed meaningful recommendations for global financial regulatory reform. Implementation is underway. But how binding are the commitments? Are they any more than soft law? Are the commitments enforceable in their own right? Can they be enforced through other existing obligations or structures? This Article sets out a framework for analyzing G-20 commitments under international law, namely, as unilateral declarations, customary international law, or interfacing with general principles of law including reciprocity and estoppel.
The massive, widespread revolutions of 2011 instilled hope across the twenty-five or so countries of the Middle East and North Africa (MENA). Totalitarian regimes were removed, and a new era beckoned. Alongside other modes of accountability, including the trials of former officials, the new Libyan government implemented lustration laws to assist the passage to a post-Qaddafi era.
Transitional periods for regimes emerging from revolution against an oppressive government require a wide range of mechanisms for accountability, and cannot rely solely on the implementation of lustration laws. Because a nascent democracy demands a balance of individual rights with processes indispensable to the efficient and effective performance of law and policy, a central question is whether political exclusion in the shape of lustration laws is useful, or even necessary, for the passage to democracy.
International Criminal Justice and the Protection of Human Rights: The Rule of Law or the Hubris of Law?Written by James J. Silk
At the beginning of the twenty-first century, we might say of our times, it was the age of human rights, it was the age of genocide and torture, it was the era of abundance, it was the era of hunger, it was the dawn of global justice, it was the enduring night of deprivation and abuse. Despite the relentless reports of atrocities and human suffering, human rights activists and critics alike have recently identified human rights as “the idea of our time, the only political-moral idea that has received universal acceptance,” “the dominant moral narrative for thinking about world affairs,” and “the major article of faith of a secular culture that fears it believes in nothing else[,] . . . the lingua franca of global moral thought.”
Last December, the Annenberg Foundation revealed itself as the anonymous bidder that purchased twenty-one Native American artifacts in a much disputed Paris auction. The items at the center of the dispute included artifacts from the Hopi Nation and San Carlos Apache tribe, among them twenty-four Katsinam—mask-like objects that the Hopi consider imbued by divine spirits. According to the Hopi, the artifacts, which date from the late nineteenth and early twentieth centuries, were stolen from their reservation and should not be treated like commodities. Nevertheless, the sacred items were sold by the Estimations & Ventes aux Enchères (EVE) auction house as part of a larger lot of sixty-six Native American artifacts, generating $1.6 million.
On December 11, 2013, the Indian Supreme Court issued a controversial ruling in Koushal v. Naz Foundation. It upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature.” This decision reversed a 2009 Delhi High Court judgment holding Section 377 unconstitutional in its application to consensual, private sexual acts among adults, including homosexual intercourse. The Supreme Court’s judgment has already been analyzed in detail, with commentators noting its doctrinal flaws and muddled reasoning.
I propose to consider some of the challenges that the addition of jurisdiction over the crime of aggression will present to the International Criminal Court (ICC). Article 5 of the Rome Statute gave the Court jurisdiction over “the crime of aggression . . . once a provision is adopted . . . defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” In the absence of adoption by consensus, adoption required a two-thirds majority. But the amendment would enter into force for all States Parties after ratification or acceptance by seven-eighths of them.
Kampala deferred the activation of the Court’s jurisdiction over the crime of aggression. In the meanwhile, only four tiny states have endorsed it, and others do not appear to be lining up. Moreover, Kampala added carve-outs to the Statute that insulate non-party and non-ratifying states from its application. Nonetheless, in Kampala, the ICC has moved a step closer to exercising jurisdiction over what the General Assembly in 1974 called “the most serious and dangerous form of the illegal use of force.” So it is not entirely academic to begin to consider the implications of the prospective judicialization of the international community’s response to the crime of aggression for, first, the international political system; second, the international legal system; and finally, the ICC itself. But that, as Dostoevsky often said, requires us to go back.
When asked whether the French Revolution had succeeded, a recent Chinese premier responded that, after two centuries, it was still too soon to tell. That means it would be rather unwise to draw any sort of balance sheet on the International Criminal Court at this early stage. In any case, for the International Criminal Court (ICC)—or the French Revolution for that matter—time is not the main difficulty. There is also the thorny matter of what criteria are appropriate for the assessment in the first place.
It would seem simple to grant success with respect to retributive justice in the court’s one conviction so far—except that so many people feel either that Thomas Lubanga is not paying his debt for all of his crimes (for example, sex crimes) or that his fourteen year sentence is insufficient even for those crimes for which he was found guilty. Even setting aside that criticism, it may be more interesting to consider the court’s pursuit of outcomes other than simply meting out retributive justice, for it has always been clear that more is at stake in the ICC’s work than this important but narrow goal, both for better and for worse.
I am honored to be the Inaugural Gruber Distinguished Lecturer in Global Justice. I share Patricia and Peter Gruber’s commitment to educational excellence, global justice and women's rights. I deeply appreciate that they are pushing legal scholars and practitioners to go beyond parochialism and analyze global justice. Today, I would like to analyze how the Rome Statute that created the International Criminal Court (ICC) is modifying the interaction between national legal systems and creating a new U.N. Security Council dynamic.
I have always enjoyed visiting Yale. During the last twenty years, and I have been here on many different occasions. I have attended seminars here and in Latin America which were organized by SELA (Seminario en Latinoamerica de teoria Constitucional y Politica, Latin American Seminar on Constitutional Law and Political Science theory) under Owen Fiss leadership. I had the privilege to be in class with Owen, and also George Priest, and I have been learning from Michael Reisman since I was a young prosecutor trying to control corruption. I have met Drew Days when he was leading the Schell Center, and have discussed corruption problems with Susan Rose Ackerman, foundational legal issues with Paul Kahn and international law with Oona Hathaway. I have admired how then-Dean Harold Koh managed a day-long seminar on how to stop crimes in Darfur. James Silk have made a great contribution to the Office of the Prosecutor by establishing a connection with the Allard K. Lowenstein International Human Rights Clinic. All of you have been a great influence on me and the Office of the Prosecutor, and I hope that in the future, after this lecture, we maintain this interaction.