Whitney R. Harris World Law Institute

Building on Strength: The Institute’s Next Decade

Features: Beyond Nuremberg and Partners in Peace and Justice Photo by law student Evelyn Chuang, Mount Kilimanjaro

1 DIRECTOR’S LETTER 14 STUDENT ACTIVITIES 22 CRIMES AGAINST 30 LEGOMSKY NAMED Leila Nadya Sadat HUMANITY IN THE CHIEF COUNSEL FOR 15 BENSOUDA HONORED MODERN AGE U.S. CITIZENSHIP AND WITH WORLD PEACE 4 LAW DEAN EMBRACES Leila Nadya Sadat IMMIGRATION SERVICES GLOBALIZATION: THROUGH LAW Q&A with Dean AWARD 24 TWO TALES OF A 31 INTERNATIONAL Kent D. Syverud TREATY REVISITED: FACULTY SCHOLARSHIP, 16 PARTNERS IN PEACE: THE PROPOSED ACTIVITIES Harris Institute 7 THE CRIMES AGAINST ANTI-COUNTERFEITING 36 U.S. SHOULD RATIFY, HUMANITY INITIATIVE and International TRADE AGREEMENT ALIGN LABOR LAWS Court of Justice Charles R. McManis 8 BEYOND NUREMBERG WITH DOMESTIC and John S. Pelletier Students work with 18 FACULTY WORKERS CONVENTION COLLOQUIUM ON international 26 HARRIS INSTITUTE Peggie R. Smith INTERNATIONAL LAW criminal tribunals SPEAKERS AND EVENTS AND THEORY 10 TOKARZ’S PROFESSIONAL 28 A JOURNEY 20 THE DECLINING RELATIONSHIPS IN AFRICA TO JERUSALEM INFLUENCE OF RESULT IN LIFE-CHANGING Seth Heller, JD ’08 STUDENT OPPORTUNITIES THE UNITED STATES CONSTITUTION 29 TRANSITIONAL JUSTICE 12 STUDENTS INTERN IN David S. Law and At the ICTR AND the ICTY AFRICA FOR 11TH YEAR Mila Versteeg McCall Carter, JD ’10

Director’s Letter Meet Us in St. Louis

n this magazine, you will find a summary of interesting international and comparative law programs and events of the past two years. From award-winning scholarship and academic roundtables to student public interest internships abroad, these pages bring out the depth and breadth of the Washington University ISchool of Law’s international and comparative law program, and the importance of the Whitney R. Harris World Law Institute as a center of excellence at Washington University. You will also find an interview with Dean Kent Syverud, chair of the Council of the ABA’s Section on Legal Education and Admissions to the Bar. Dean Syverud discusses some of the cutting-edge issues and opportunities faced by U.S. law schools as a result of globalization and the changing world economy. I hope you also will enjoy excerpts from law review articles and a book chapter recently published by Professors David Law, Charles McManis, and myself, as well as an opinion piece by Professor Peggie Smith. During the first decade of the Harris Institute’s existence, the institute became recognized for its work as an academic “We may have different “think tank.” Over the years, the Harris Institute has continued to grow in stature, becoming known for: religions, different languages, • taking on difficult and complex international problems, different colored skin, but we such as the Crimes Against Humanity Initiative; • serving as a resource and platform for faculty all belong to one human race.” scholarship and research; • supporting student activities and curricular —Kofi Annan development, including academic programs, externships, and clinical opportunities; • sponsoring and organizing programs and activities to enhance the intellectual life of the law school, Washington University, and the larger community; and

Whitney R. Harris World Law Institute Magazine FALL 2012 | 1 • partnering with other research institutions around the world, throughout the university, and in the St. Louis community. We are particularly proud of the international work our students and recent alumni are doing, including clerking at Israel’s Supreme Court and interning at the U.N. war crimes tribunals. Many of our students and alumni are featured in this issue. We also are pleased to honor the growing list of distinguished recipients of our World Peace Through Law Award, the most recent of whom was Deputy Prosecutor for the International Criminal Court (ICC) Fatou Bensouda, who was sworn in as Chief Prosecutor this past summer. As the Harris Institute enters its second decade, it continues to build upon strengths already acquired and is consistently innovating and expanding its programming. During the com- Participants in the Crimes Against Humanity Initiative’s St. Louis ing academic year, we will be hosting many exciting events, Experts Meeting including a major international conference on the 10th anniversary of the ICC’s establishment and lectures by prominent practitioners and scholars of international law. I am particularly delighted to welcome Louis B. Susman, U.S. Ambassador to the United Kingdom and a distinguished alumnus, back to our law school to address the university

Professor Leila Nadya Sadat, left, and McCall Carter, JD ’10, second from community. I am also proud of our new partnership with right, with summer 2012 interns at the International Criminal Tribunal for the Sam Fox School of Design & Visual Arts and the essay Rwanda, located in Arusha, Tanzania. From left: Professor Sadat, Evelyn Chuang, Marie Hastreiter, McCall Carter, and Giovanni Bianchetti

Nuremberg prosecutors, from left, Henry King, Ben Ferencz, and Whitney R. Harris

2 | Whitney R. Harris World Law Institute Magazine FALL 2012 Director’s letter

contest we have sponsored in honor of and with the support of former Nuremberg Prosecutor Benjamin Ferencz, his son, Don Ferencz, and the Planethood Foundation. We are continuing to advance work on the Crimes Against Humanity Initiative, and have now completed the translation of the Proposed Convention into French, Arabic, and Spanish. We also have connected with our partners around the world to promote this important rule of law initiative. As always, we will once again work with our partners to co-sponsor the Sixth Annual International Humanitarian Law Dialogs

at Chautauqua. o f Monik a Weiss Courtesy Whitney R. Harris would have turned 100 this year, and I am sure he would have been delighted to see how “his institute” is flourishing. We will celebrate his birthday on November 11, 2012, with a special lecture delivered by Judge Hans-Peter Kaul of the International Criminal Court. The ICC at Ten conference commemorating I hope you can join us for one or more of these events, the 10th anniversary of the International Criminal Court will open with a perfor- and I look forward to seeing you there. mance by the internationally acclaimed artist Monika Weiss from the Sam Fox School of Design & Visual Arts. The Sincerely, name of her performance will be Leila Nadya Sadat Sustenazo (Lament IV); a scene from her installation is depicted above. Henry H. Oberschelp Professor of Law Director, Whitney R. Harris World Law Institute

Founders day honors Law school alumni David Detjen, AB ’70, JD ’73 (left), and Louis B. Susman, JD ’62 (right), received Founders Day Distinguished Alumni Awards from Chancellor Mark Wrighton in November 2010. Washington University’s Alumni Association presents the awards, which recognize outstanding professional achievement and service to the university community, at an annual gala celebration. Detjen is a partner in the New York office of Alston & Bird LLP, where he heads the firm’s team that represents Euro- pean clients, and a member of both the law school’s National Council and the Whitney R. Harris World Law Institute’s advisory board. Susman, also a member of the advisory board and current Ambassador to the United Kingdom, will return to the law school to launch the 2012–13 Harris Institute lecture series.

Whitney R. Harris World Law Institute Magazine FALL 2012 | 3 Q&A with Dean Syverud: Law School Embraces Globalization

Q: How has Washington University Europe has long been the center of School of Law embraced globalization development of international human in its program of studies? rights and remains the seat of many of the most important international legal A: Our academic curriculum reflects institutions. The European Court of a commitment to international and Human Rights was one of the first mod- transnational law, including incorpora- ern supranational courts created to hear tion of comparative and international complaints against states of human rights elements in courses that have traditionally violations. In addition to its long history focused exclusively on American of human rights jurisprudence within subjects. In addition, we offer students the continent, Europe has been the situs a panoply of opportunities for study of many foundational international treaties and conventions. Today, The

S tephen K ennedy and practice abroad. Our longest established program abroad is the Summer Hague in The Netherlands is the seat Institute for International Law & Policy of the International Court of Justice, in The Netherlands, an intensive six-week the International Criminal Court, the Dean Kent Syverud course in international and comparative Permanent Court of Arbitration, and law that we offer in partnership with several ad hoc tribunals. Case Western Reserve University and Some of the best educational Utrecht University. programs in public and private inter- The Summer national law are in Europe at world- Institute affords renowned institutions, including Washington University Utrecht University in The Netherlands, students the chance Queen’s University Belfast, University to take courses from of Trento in Italy, and Catholic leading American and University of Portugal—all partners European scholars and of Washington University School practitioners alongside of Law through our pioneering Trans- colleagues from across national Law Program (TLP). the United States and Our TLP students spend five around the world. Par- semesters in St. Louis acquiring a solid ticipants gain unpar- foundation in U.S. law with an empha- alleled exposure to sis on international and transnational cutting-edge issues in law from an American perspective, and international law. then undertake three semesters abroad, acquiring an appreciation for European Q: How have develop- law and enhancing their understanding Students and faculty in the 2012 Summer Institute for International Law & Policy in ments in human rights and public interna- of international and transnational law. front of the Peace Palace, The Hague tional law molded Washington University’s They then graduate with two degrees— global focus? a JD and an LLM. Their European counterparts pursue A: One example is our new focus on a complementary course of study; after programs in Europe. We recognize that earning their degree from their home

4 | Whitney R. Harris World Law Institute Magazine FALL 2012 European university, they enter the LLM Africa Public Interest Law & Conflict program here. Our graduates have found Resolution Initiative, which matches the TLP experience to be an invalu- Washington University law students with able start to their legal careers. Indeed, internship opportunities at nongovern- several have found opportunities to use mental organizations in South Africa, their experience and qualifications to Ghana, Tanzania, Rwanda, and Kenya. obtain highly competitive positions in Our students contribute to the rule of international law. Furthermore, our law law and human rights efforts of these school has sent students everywhere from organizations, while gaining practical legal Geneva to The Hague for internship skills. In the past seven years, Professors opportunities. We are in the process of Leila Sadat and Tokarz have arranged adding new partner schools in additional for almost two dozen of our students to Washington University law students are increas- European countries to meet increased intern with the international criminal ingly finding opportunities to intern and work student demand. tribunals established for Rwanda, Cam- in Africa, including in Dar es Salaam, Tanzania. bodia, and the former Yugoslavia. Q: How has the law school’s programming In recent years, a number of African reflected developments in public interna- economies also have emerged as signifi- tional law and human rights outside cant participants in the global economy. of Europe? Over the past year, economic and development reports have stated that as many A: In recent years, Latin American and as seven of the world’s 10 fastest-growing African states have shown a renewed economies are in Africa. We are watch- and serious commitment to the interna- ing closely the development of diverse tional legal institutions and instruments regulatory regimes and economic com- that will advance human rights into the munities in the region, including the future. For example, a number of African Economic Community of West African

countries have demonstrated a commit- States (ECOWAS), the East African Students and faculty in the 2011 Summer ment to the protection of human rights Community, and the Southern African Institute for International Law & Policy near and the rule of law by playing a signifi- Development Community, with particu- the Grand Place, Brussels cant role in the work of the International lar interest in the interplay of economic Criminal Court (ICC). The first-ever development with rule of law initiatives judgment issued by the ICC was deliv- in the respective countries and regions. ered in May of this year in a case from These developments will doubtless pro- the Democratic Republic of Congo. To vide new opportunities for our students date, 33 African countries—the major- throughout the continent. ity of African countries—have ratified We have also noted with interest eco- the ICC Statute, making Africa the most nomic and legal developments through- heavily represented region within the out the Western Hemisphere. Latin court’s jurisdiction. America has long been an important Our law school has long supported player when it comes to the advancement the advancement of human rights in of human rights. The Inter-American Africa. This marks the 11th year since Court for Human Rights, which was Paris is among a number of European cities Professor Karen Tokarz established the established by the Organization of where students and faculty are pursuing international scholarly opportunities.

Whitney R. Harris World Law Institute Magazine FALL 2012 | 5 American States in 1979, is one of the Rwanda and the former Yugoslavia, and longest-standing autonomous judicial countless other international organiza- institutions in the world established for tions such as the Legal Aid Board in the sole purpose of ensuring human South Africa. Our law school facilitates rights and basic freedoms. Likewise, the these opportunities through grants like emergence of countries like Brazil as the Dagen-Legomsky Public Interest Fel- regional and global economic powers lowship. The fellowship is a competitive provides an opportunity for law stu- stipend awarded to exceptional students dents and young lawyers to contribute by the Whitney R. Harris World Law to a legal practice that literally spans Institute, and is intended to support the Americas. summer study and internships in human At the same time, we have long- rights and international law. The law school currently has 12 degree and/or exchange agreements with foreign standing partnerships with several uni- Washington University’s LLM degrees universities for faculty and students, including versities in the Asia-Pacific region and in U.S. Law and in Intellectual Property the new four-year combined degree program have been expanding our programs in & Technology Law also have attracted with the University of Queensland. China, Korea, Japan, and Australia. a large number of talented international Our students also have participated lawyers, scholars, and judges from around in summer and school-year internships the world. These students bring unique with rule-of-law organizations as well cultural and legal professional experiences as law firms around the world, including that further enrich our academic environ- in Chile, Brazil, Cambodia, Thailand, ment and the entire community. India, Australia, and Israel. We will In addition to our residential LLM continue to work with our students and programs, we now offer our LLM in our partners abroad to identify new U.S. Law in an entirely online format. opportunities for students to deploy the This groundbreaking initiative, skills and knowledge they have gained @WashULaw, will give foreign lawyers in the classroom. and law students the opportunity to earn an American LLM degree on the Q: Has globalization had an impact on same terms as their counterparts in the composition of the student body? St. Louis without having to interrupt Professor Kim Norwood, left, is among a regular cohort of Washington University their practice or studies abroad. law faculty who teach at Fudan University A: Without question. Increasingly, School of Law in China. students are drawn to Washington Q: How do these global influences mesh University because of our strength in with the law school’s goals? international law. Many are attracted by one of our international programs; A: Our goal is to be the best place in the others come because of prominent schol- country to become a lawyer. This mission ars and teachers like Professor Leila Sadat remains the same whether a student plans and Professor Melissa Waters, whose to pursue professional opportunities here work in foreign relations and interna- or abroad. From curriculum to admis- tional law is particularly well-known. sions to career services, our programs have Other students are drawn by our evolved to reflect a truly global outlook. long-standing internship opportunities We are committed to educating globally abroad. Washington University minded lawyers who have the skills and students have worked at the Khmer exposure to provide service—to clients Brazil’s emergence as an economic Rouge Tribunal in Cambodia, the and to humanity at large—anywhere in superpower is providing new oppor- |||| tunities for young lawyers. International Criminal Tribunals for the world.

6 | Whitney R. Harris World Law Institute Magazine FALL 2012 By Timothy J. Fox Institute Forges Convention on the Prevention and Punishment of Crimes Against Humanity

he Whitney R. Harris World Law Ultimately, the goal is to have the convention Institute’s most significant and brought to the United Nations by sponsoring states, ambitious project to date has been where it can be reviewed and serve as the basis for future the Crimes Against Humanity diplomatic negotiations. As part of this effort, Sadat and Initiative. In 2008, Leila Nadya high-level international representatives gathered in Paris, Sadat, the Henry H. Oberschelp where she was serving as the Alexis de Tocqueville Dis- TProfessor of Law and Harris Institute director, tinguished Fulbright Chair at the University of Cergy- launched what has become a landmark effort con- Pontoise. Agenda items were promoting the initiative cerning the international rule of law. During the and discussing its central role in prevention as well as multi-year project, Sadat has led the development of punishment of crimes against humanity. She also pre- the Proposed International Convention on the Preven- sented the project to the Dag Hammarskjöld Founda- tion and Punishment of Crimes Against Humanity, tion in Sweden, U.K. Parliament, European Union, and which addresses the problem that although crimes Irish Centre for Human Rights, among other venues in against humanity appeared in the Europe. More recently the project was presented to the Nuremberg Charter, unlike geno- International Law Commission. cide and war crimes, they were “Our initiative is designed to refocus attention never elaborated in a comprehensive on the victims of atrocity crimes and move away from international treaty. legal characterizations that are of little benefit either in “The Crimes Against Humanity preventing the crimes or punishing the perpetrators,” Initiative is one of the most sophis- Sadat says. “We truly hope that states will take up the ticated and challenging endeavors challenge of negotiating and adopting an International in which any law school has ever Convention on the Prevention and Punishment of Crimes engaged,” Sadat says. “The Proposed Against Humanity.” |||| Convention is designed to be an influential and important contribution to international law, even CAHI Steering Committee more so than the 1935 Harvard law Chaired by Leila Nadya Sadat, the Steering research project to draft interna- Committee for the Crimes Against Humanity

M a ry Butkus Initiative (CAHI) is composed of: tional treaties.” Sadat convened leading M. Cherif Bassiouni, the Distinguished Research Professor of Law at DePaul University College of international judges, academ- Law and founder and president emeritus of the ics, and practitioners who wrote, circulated, and International Human Rights Law Institute; debated several drafts of the Proposed Convention Hans Corell, former Under-Secretary-General for Legal Affairs and legal counsel of the before including it in a book, containing 15 impor- United Nations; tant essays on the theory and practice of crimes Richard J. Goldstone, former chief prosecutor against humanity. Forging a Convention for Crimes of the International Criminal Tribunals for the Against Humanity was published by Cambridge former Yugoslavia and for Rwanda; University Press in 2011. Sadat both edited and Juan E. Méndez, visiting professor, contributed to this volume, which contains the Washington College of Law, American University, Washington, D.C.; complete text of the Proposed Convention in both William A. Schabas, professor, Middlesex English and French. This extraordinary work was University, London and Leiden University; and recognized in 2011 with the Book of the Year Christine Van den Wyngaert, judge for Award from the American National Section of the the International Criminal Court. Association Internationale de Droit Pénal.

Whitney R. Harris World Law Institute Magazine FALL 2012 | 7 Beyond Nuremberg Students Engage in Groundbreaking Work with International Criminal Tribunals

rawing on its direct Andrew Cayley, Extraordi- Richard Dicker, Human connection to the nary Chambers in the Rights Watch Nuremberg legacy, Courts of Cambodia the Whitney R. Harris World Law Institute has emerged Since 1994, operating under the as one of the leading auspices of the United Nations Security Dcenters training lawyers to tackle new Council, the ICTR and ICTY together challenges facing international criminal have decided hundreds of cases and justice today. From in-depth externships prosecuted the worst perpetrators of the to research opportunities, the Harris Rwandan genocide and the war in the Institute provides Washington University former Yugoslavia. School of Law students with extraor- “The ICTR handed down the first dinary opportunities to engage in the conviction for the crime of genocide and development of new legal frameworks. found that rape could be an act of geno- The law school’s connection and cide. It was also the first international contributions to the groundbreaking criminal tribunal in Africa,” notes Leila work of five of the world’s international Nadya Sadat, the Henry H. Oberschelp criminal tribunals and courts—the Inter- Professor of Law and director of the national Criminal Tribunal for Rwanda Whitney R. Harris World Law Institute. (ICTR), the International Criminal Like the ICTR, the ICTY also has Tribunal for the former Yugoslavia established important precedents in inter- (ICTY), the Extraordinary Chambers in national criminal law. “The early juris- the Courts of Cambodia (ECCC), the prudence of the ICTY is still cited today Special Court for Sierra Leone, and the by the new ICC,” Sadat observes. “It Summer Institute for International Law International Criminal Court (ICC)— essentially laid the foundations of modern & Policy students at the International Criminal Court are unprecedented. During the past international criminal law.” seven years, more than a Sadat, along with Karen Tokarz, the dozen law students have Charles Nagel Professor of Public Inter- interned at the ICTR, est Law & Public Service and director of located in Arusha, Tan- the Negotiation & Dispute Resolution zania; almost another Program, and Michael Peil, associate dean dozen have interned at the for international programs, director of ICTY in The Hague and the Transnational Law Program (TLP), at the ECCC in Phnom and lecturer in law, has worked hard to Penh, Cambodia. These develop the ongoing relationships with all students have worked on four of the tribunals, cementing the enor- judgments that may well mous success of Washington University’s set the standards of inter- international internship program. national criminal law for “These internship opportunities are years to come. incredibly competitive,” Sadat says.

8 | Whitney R. Harris World Law Institute Magazine FALL 2012 By Janet Edwards

Law student George Lyle IV, left, with Amitis Khojasteh, JD ’08, at the Professor Melissa Waters teaches Serge Brammertz, International Crimi- International Criminal Tribunal for international, foreign relations, nal Tribunal for the former Yugoslavia the former Yugoslavia and human rights law.

“To get them, Washington University a deputy prosecutor in students must compete not only with Boone County, Mis- students from other U.S. law schools, souri. Haigh says he but with the best and the brightest from received the internship all over the world. placement because of “Our superb clinical programs, com- his combined profes- bined with the substantive knowledge sional experiences of our students, help them to stand out. abroad and relevant As a result, Washington University has law school course one of the most successful placement work and activities. rates of any law school in the world He credits his summer with the international courts and tribu- internship in South nals,” adds Sadat, who teaches courses Africa with Tokarz, in international criminal law, human research he completed rights, and public international law to for the Special Court help prepare students for success in of Sierra Leone Pros- Summer Institute for International Law & these highly competitive and sought- ecutor’s Office under the direction of Policy students with Fatou Bensouda, Inter- after positions. Sadat, and his participation in the Philip national Criminal Court, center with orange Similarly, Melissa Waters, vice dean, C. Jessup International Moot Court scarf, and David Crane, Syracuse University and formerly Special Court for Sierra Leone, professor of law, and co-director of the Competition as preparation for his work center in dark jacket @WashULaw program, helps prepare law at the ICTR. students for tackling issues in interna- Interns at international courts and Through these experiences, Haigh tional law, including through her courses tribunals generally assist with research, says he learned how to “interview with in foreign relations law, the war on terror, reviewing evidence, and writing judg- compassion,” while still eliciting infor- international human rights law, and inter- ments. Because the ICTR was still build- mation that helps both the case and national conflicts of law. ing cases in 2005, Haigh’s experience the individual. It’s a skill he continues also included fieldwork, meeting with to rely on as a prosecutor, he says. Student Interns Do Fieldwork, witnesses and victims where the atrocities Provide Valuable Research had occurred. He traveled from Tanzania International Semester to Rwanda, accompanied by translators. Field Placements, Ryan Haigh, JD ’06, was one of the first “The fieldwork was dangerous,” Summer Internships Washington University law students to he recalls, “but knowing that when you intern at an international criminal tribu- left it was much more dangerous for In 2012, law students Ilunga nal. The knowledge he gained during his the people you were leaving behind— Kalala and Jenny Wren Morris 2005 summer internship at the ICTR and that you may have put their lives interned at the ICTR while law student continues to inform his practice today as in jeopardy—that was very difficult.” Vanessa Hill externed at the ICTY for

Whitney R. Harris World Law Institute Magazine FALL 2012 | 9 a semester through the school’s new Inter- histories and assisted in research and review national Justice & Conflict Resolution of evidence. They also drafted memos on Field Placement. case law from other courts and tribunals, Kalala, who worked as an assistant including the Special Court for Sierra Leone to Judge Vagn Joensen, ICTR president, and the Special Tribunal for Lebanon. All notes: “It was a humbling experience, three noted that their previous summer and I thoroughly enjoyed the relationship international internships in the Democratic I grew to have with the judge and the Republic of the Congo, Tanzania, and special assistant to the judge. There was Ghana with Tokarz prepared them legally, a lot of trust placed in me, as well as a politically, and culturally for the work at Law student Ilunga Kalala, right, promoted civil great deal of responsibility.” the ICTR and ICTY. society and dispute resolution during his internships with Search for Common Ground in the During their internships, Kalala, Marie Hastreiter, who interned at the Democratic Republic of the Congo and with Morris, and Hill wrote procedural ICTR in summer 2012, notes that the the International Criminal Tribunal for Rwanda. Tokarz’s Professional Relationships in Africa Result in Life-Changing Student Opportunities

Karen Tokarz, the Charles Nagel Professor of Public Mediation Clinic, Interest Law & Public Service, has been working on and she educates her stu- influenced by dispute resolution initiatives in Africa for dents about dispute more than a decade. A renowned clinician and expert in resolution, human negotiation and dispute resolution, Tokarz says she was rights, and commu- initially inspired by South Africa’s ability to successfully nity collaboration. move from apartheid to full democracy. She was particu- After her initial work larly struck by the country’s ability to weather the dra- as a Treiman Fellow matic transition without open civil war—and the country’s at UKZN’s Law Clinic national commitment to a nonracialized society. in Durban, South “The South African Truth and Reconciliation Commission Africa, more than a is a true testament to what alternative dispute resolution decade ago, Tokarz and restorative justice can do,” says Tokarz, who began has returned every Professor Karen Tokarz, right, with her work in South Africa as a visiting faculty member year since and has former intern Ibadat Dhillon, JD ’06, at the University of KwaZulu-Natal (UKZN) in fall 2001. continued to collabo- who continues to work in Dar es “The Commission, established by President Nelson rate with UKZN and Salaam on access to health issues and Mandela and the Government of National Unity in other law faculties in mentors current law student interns. the 1990s, was critical to the country’s political and South Africa. In 2008, she served as a Fulbright Senior social transformation. By the early 2000s, I was able Specialist at UKZN, consulting on the development of a to view the legacy of this important work.” dispute resolution master’s program. In December 2012, she will speak at the opening plenary of an international For many years, Tokarz was the chief architect of the conference at UKZN on “Forty Years of Clinical Legal law school’s highly regarded Clinical Education Program. Education at UKZN and in South Africa: Looking Back, Now as director of the school’s Negotiation & Dispute Looking Forward.” Through her professional ties, she Resolution Program, she continues to stress to students also has established relationships with various NGOs, the professional responsibilities of lawyers to both their human rights agencies, and tribunals in southern Africa, clients and society. In her Mediation Theory & Practice which, in turn, have allowed Washington University law course and her Civil Rights, Community Justice &

10 | Whitney R. Harris World Law Institute Magazine FALL 2012 War Crimes Seminar taught by Sadat Sadat, Tokarz, and Peil—a point of helped her navigate ICTR documents unanimous agreement among the law and put the frequently eye-opening mate- students. Along with their day-to-day rial into context. “I can read and read internship responsibilities, during this material, and never get tired of it,” their 10-week summer stays or their she says. “I try to understand on the one 16-week semester stays, students are hand these horrible atrocities and on the also required to read relevant materi- other hand apply everything I’ve learned als, keep journals, turn in written in the classroom.” assignments, and work in community The positions at the international outreach programs. Many also take tribunals and courts have largely been language classes. made available due to the tremendous “One of my most rewarding experi- connections and support provided by ences during my internship was an Professor Leila Nadya Sadat, fourth from left, with Harris Institute fellows and staff members

students to benefit and judges at the International Criminal Tribunal for Rwanda, from groundbreaking the Khmer Rouge tribunal in Cambodia, and the international internships. courts at The Hague. Over the years, “The exchange programs and the summer and semester Tokarz has coordi- internships help our students situate what they are learning nated summer about public and private law in the United States within the internship place- global networks of criminal justice, civil rights, and economic ments for more regulation,” Tokarz says. “They introduce our students to the than 125 Washington emerging role of international tribunals and conflict resolution University law stu- and advocacy agencies while opening intellectual and profes- dents in South Africa, sional doors for them.” Ghana, Tanzania, Inspired by her experiences in Africa, Tokarz created the law Kenya, Burkina Faso, Professor Karen Tokarz, left, mentored school’s Africa Public Interest Law & Conflict Resolution Initia- and the Democratic UKZN exchange student Khethiwe tive. In addition to facilitating student and faculty exchanges, Mthembu from South Africa. Republic of the Congo; the program promotes speakers at the law school and univer- facilitated law stu- sity with expertise on Africa and fosters scholarship on Africa. dent exchange programs with UKZN and the University of In fall 2012, for example, the initiative co-sponsored with the Pretoria; and mentored LLM and JSD students from Africa. Harris Institute the World Peace Through Law presentation, Additionally, Tokarz coordinates the school’s International delivered by International Criminal Court Deputy Prosecutor Justice & Conflict Resolution Field Placement, in partnership Fatou Bensouda. In fall 2011, the initiative co-sponsored with with Leila Nadya Sadat, the Henry H. Oberschelp Professor the School of Medicine a presentation on “World Cup 2010: of Law and director of the Whitney R. Harris World Law Human Trafficking and Forced Prostitution,” featuring John Institute, and Michael Peil, associate dean for international Barr, ESPN commentator for Outside the Lines. Tokarz recently programs, executive director of the Transnational Law authored an article on “Advancing Social Justice Through Program, and lecturer in law. Through the field placement, ADR and Clinical Legal Education in South Africa, India, students have been paired for a semester with attorneys and the U.S.” ||||

Whitney R. Harris World Law Institute Magazine FALL 2012 | 11 interview I conducted with a prosecutor ICTR appeals prosecutor has become ICC’s Legal Tools Project. Through the in the appeals chamber of the ICTR to a professional mentor, providing her arrangement, law students are assisting fulfill a practice requirement of the inter- with useful career advice. the ICC with building the most compre- national field placement,” notes former hensive and complete database within ICTR intern and Harris Institute Fellow Other Student Opportunities the field of international criminal law. Lola Oguntebi, JD ’11. The ICC’s Legal Tools Project “Because I interned in chambers at An innovative agreement with the ICC involves the comprehensive collection the ICTR and had previously interned also is presenting law students with the of resources relevant to the theory and for the Defense section of the Khmer opportunity to put their research skills practice of international criminal law. It Rouge Tribunal, I was especially into practice. Through the work of the also brings modern technologies into the fascinated by the prosecution perspective, Harris Institute, Washington University investigation, prosecution, and defense of particularly at the appellate level,” School of Law was the first school in the genocide, crimes against humanity, and Oguntebi recalls. She adds that the United States to become a partner in the war crimes. Under the direction of Sadat,

Students Intern in Africa • Natasha Wilson, Care International in Tanzania; for the 11th Year • Meghan Leipold, Morningstar Institute in Kenya; • Kristin Smith, FIDA-Ghana Legal Across sub-Saharan Africa, & Conflict Resolution Field Placement, the Aid Programme; Washington University law students Africa Initiative promotes courses, such as • Nacente Seabury, Legal Resources are making a difference in the lives of the interdisciplinary course on Community Centre in Ghana; and people in need. Two students spent the Development in Madagascar, and fosters spring 2012 semester in Tanzania and on-campus lectures on Africa by leading • Giovanni Bianchetti, Evelyn Chuang, 12 students spent summer 2012 intern- scholars and diplomats. and Marie Hastreiter, International ing in South Africa, Ghana, Tanzania, Criminal Tribunal for Rwanda. “This generation of law students is enor- and Kenya, where they provided legal (This fall two more students, Annie mously interested in international law services, legal research, and dispute Schlapprizzi and Natasha Wilson, issues. They are deeply concerned with resolution assistance through local NGOs are interning there.) understanding global North–global South and human rights agencies and the Inter- relationships. They’re also very interested In their various internships, students assist national Criminal Tribunal for Rwanda. It in working in emerging democracies and attorneys with client interviews, conduct was the 11th year for the summer intern- economies in areas such as southern investigations, take witness statements, ship program, which also has taken stu- Africa,” Tokarz says. visit jails and prisons, participate in con- dents to Nigeria, the Democratic Republic flict resolution efforts and community In summer 2012, for example, student of the Congo, and Burkina Faso. education, and prepare investigative and interns included: The internships are one component of legislative reports. • Eteena Tadjiogueu, Lawyers for the multifaceted Africa Public Interest Law At the Legal Aid Board in Durban, South Human Rights in South Africa; & Conflict Resolution Initiative, coordi- Africa, where Washington University nated by Karen Tokarz, the Charles Nagel • Isaac Chaput, Legal Resources Centre students have interned for almost a Professor of Public Interest Law & Public in South Africa; decade, they often prepare documents Service and director of the Negotiation for the court for sentencing hearings, • Matteo D’Agostini, Pallavi Garg, & Dispute Resolution Program. In addi- arguing for mitigation of sentences. and Kaitlyn Pennington-Hill, Legal tion to facilitating summer public interest Tokarz says an effective sentencing Aid Board in South Africa; internships and semester-long externships report, explaining a client’s personal in Africa through the International Justice

12 | Whitney R. Harris World Law Institute Magazine FALL 2012 Peil, and a Harris Institute Fellow (most Additionally, Sadat’s War Crimes international criminal law while at the recently Oguntebi), the students con- seminar, offered each spring, focuses same time offering extensive guidance duct research on national jurisdictions on the jurisprudence of the war crimes in how to write—and even rewrite— and national cases. These cases involve tribunals and the ICC. Her students an excellent research paper,” Sadat core international crimes from all over study in depth the tribunals’ methods notes. “The course material is even the world. of legal reasoning, substantive law, more timely now, as the tribunals begin Prior to the opportunity to work and procedures. In addition to reading to wind down their work and prepare on the ICC Legal Tools project, transformative cases, they prepare a for the transfer of cases to the next law students also participated in the substantial research paper addressing a generation of courts.” |||| Academic Consortium Project of problem in international criminal law. the Special Court for Sierra Leone, “The seminar’s purpose is to permit researching and writing memoranda for students to deepen their knowledge of the prosecutor’s office.

serving as associate legal officer in the registry of the ICTR. Debora Rogo, JD ’09, interned at the Legal Resources Centre in Nairobi, Kenya, in summer 2007. She is currently an associate attorney with the International Law Institute– African Centre for Legal Excellence, based in Kampala, Uganda. In addition, Webster Scholar Alex Hendler, JD ’03, set up an online documentation center for Tanzania High Court decisions. Another alumnus, Ibadat Dhillon, JD ’06, who interned at the Children’s Rights Centre in summer 2004, pursued a master’s degree in international global health law at Georgetown University after graduation. Since then, he has Professor Karen Tokarz, right, with from left: been collaborating with experts such Scott Wilson, JD/MSW ’04, Sheila Seshadri, as Mary Robinson on access to health JD ’05, and Andrea Ebrect Nelson, JD ’05, education and training, such as ‘street care issues in Africa, based in Dar es at the Tala Game Reserve outside Durban, law’ projects,” Tokarz says. “They also Salaam, Tanzania. South Africa in summer 2003 reflect on their experiences with law and lawyering in a new country through their “My summer internship at the Children’s circumstances and the justification for journal submissions.” Rights Centre and my HIV/AIDS work in leniency, can make the difference between the Civil Rights, Community Justice & Several Washington University alumni probation and a multiyear jail sentence. Mediation Clinic with Professor Tokarz have developed professional connections cemented my commitment to do inter- Legal interns are also expected to perform in Africa. Sena Dei-Tutu, JSD ’06, has national public health law work,” Dhillon community service projects during their worked for the past three years with the says. “Her mentorship inspired me to internships and to submit weekly journals. Rule of Law and Governance Section of pursue a career overseas in international “Students get to know the context and the United Nations Mission in Liberia. public health.” |||| the community from which their clients Transnational Law Program graduate come through projects that involve McCall Carter, JD ’10, is currently

Whitney R. Harris World Law Institute Magazine FALL 2012 | 13 Student Activities

(above) Washington, D.C., attorney Steven Schneebaum, International Law Students Association board member, left, with law student Annie Schlapprizzi and Associate Dean Michael Peil, following a panel discussion on Litigating Inter- national Human Rights Violations. The event was organized by the American Constitution Society for Law and Policy.

(above) Professor Leila Nadya Sadat, right, with a conference participant and law students Eileen Boyle and Michael Perich, second from left, at the 5th Annual International Humanitar- ian Law Dialogs, held in Chautauqua, New York

(above) Serge Brammertz, prosecutor for the Interna- tional Criminal Tribunal for the former Yugoslavia, left, speaking to Harris Institute Student Fellows Shishir Jani and Lola Oguntebi, right

(above) 2010 Dagen-Legomsky and Cash Nickerson Student Fellows from left: M. Imad Khan, Erika Detjen, Jason Meyer, Lola Oguntebi, Professor Leila Nadya Sadat, and Genevra Alberti (above) Coach Gilbert Sison, JD ’00, second row, third from right, with members of the Philip C. Jessup International Law Moot Court Team and Jessup colleagues from around the (below) JD Stier, Enough Project’s Raise Hope world. The law school’s Jessup Team holds one of the stron- for Congo campaign manager, addresses gest records in the international competition. Washington University law students.

14 | Whitney R. Harris World Law Institute Magazine FALL 2012 By Timothy J. Fox Bensouda Named ICC Chief Prosecutor, Honored with World Peace Through Law Award

n June 15, 2012, Interest Law & Policy Speakers Series, Bensouda continued: “The ICC was Fatou Bensouda, and received the Harris Institute’s 2011 created as a matter of realism, as a form Deputy Prosecutor World Peace Through Law Award— of protection; that is the main point. for the International an award reserved for individuals who Accountability and the rule of law pro- Criminal Court considerably advance the rule of law vide a framework to protect individuals (ICC), was sworn in as and, thereby, contribute to world peace. and nations from massive atrocities and OChief Prosecutor in a ceremony at The “Deputy Prosecutor Bensouda has to manage conflicts.” Hague. In attendance that historic day dedicated her career to the pursuit of Investigations are currently under justice and the rule of way in the Central African Republic; law,” says Sadat. “The Côte D’Ivoire; Darfur, Sudan; the World Peace Through Democratic Republic of the Congo; Law Award acknowledges Libya; Mali; and Uganda. her extraordinary work in With the presence of the ICC, the field of international leaders using massive violence to either criminal justice and her attain or to hold power will be held many achievements as accountable, Bensouda said. “States have an ardent champion of accepted that should they fail to pros- human rights.” ecute, the International Criminal Court A native of the Republic could decide to step in.” of the Gambia, Bensouda But the ICC has some difficult Chief Prosecutor Fatou Bensouda, was elected Deputy Prosecutor in 2004. barriers to overcome, she continued. International Criminal Court She had previously worked as a legal “Arrest of the fugitives wanted by the adviser and trial attorney at the Interna- ICC remains the biggest test for the was Leila Nadya Sadat, the Henry H. tional Criminal Tribunal for Rwanda in international community. It requires the Oberschelp Professor of Law and director Arusha, Tanzania, rising to the position collaborative efforts and the consistent of the Whitney R. Harris World of senior legal adviser and head of the approach of states and international Law Institute. Legal Advisory Unit. organizations. A single court ruling “It was a wonderful day, with dig- In her address last fall, Bensouda affects the behavior of governments nitaries, friends, family, and court noted that the ICC—established in and political leaders, and armies all personnel gathered both to witness the 1998—offers “a new instrument of over the world are adjusting their opera- transition and to honor Prosecutor peace, creating global governance tional standards,” she said. Bensouda,” Sadat says. “ICC President without a global government, but “The world increasingly, I believe, is Sang-Hyun Song presided over the with international law and courts.” understanding the role of the Court.” |||| ceremony, and both the President of the Assembly of States Parties, Tina Intelmann, and Chief Prosecutor Bensouda delivered stirring and impor- “Peace is a daily, a weekly, a monthly process, tant remarks.” This was not the first time that Sadat gradually changing opinions, slowly eroding has heard Bensouda offer an inspira- old barriers, quietly building new structures.” tional speech. In fall 2011, Bensouda visited Washington University School —John F. Kennedy of Law, gave a stirring talk co-sponsored by the Harris Institute and the Public

Whitney R. Harris World Law Institute Magazine FALL 2012 | 15 Partners in Peace and Justice: The Harris Institute and the International Court of Justice

s home to the Whitney ICJ, established in 1945 by the United A trained diplomat, he has also acted R. Harris World Law Nations Charter, is the principal judicial as Japan’s Vice Minister for Foreign Institute, Washington organ of the United Nations. Affairs, the Permanent Representative University School of The first ICJ judge to visit of Japan to the Organization for Eco- Law is a world leader Washington University was His Excel- nomic Cooperation and Development in international issues lency Hisashi Owada of Japan. At the in Paris, and the Permanent Represen- Aranging from climate change to crimes time of his visit in 2008, Owada was tative of Japan to the United Nations against humanity. preparing to begin his 2009–12 term in New York. One indicator of the Harris Insti- as ICJ president. Owada delivered the In 2010, His Excellency Thomas tute’s stature in the international justice keynote address at a two-day confer- Buergenthal, the U.S. judge on the community is the fact that three Inter- ence, sponsored by the Harris Institute, ICJ, delivered the Tyrrell Williams national Court of Justice (ICJ) judges— honoring retiring professor John Owen Lecture at the law school. Buergenthal including a current ICJ president— Haley. Speaking on “The Rule of Law in spoke on “The International Judicial have visited and lectured on the law a Globalizing World,” Owada discussed System: Its Growing Influence” and school campus since 2008. his observations on the transition from a commented briefly on his autobio- Located at the Peace Palace in process-focused approach to law centered graphical book, A Lucky Child: A The Hague, The Netherlands, the ICJ on the state to an end-oriented approach Memoir of Surviving Auschwitz. is an international court that decides focused on individuals and human rights Before joining the ICJ in 2000, legal disputes submitted by member protections across international borders. Buergenthal served as judge and presi- states and issues advisory opinions on Prior to his service at the ICJ, Owada dent both of the Inter-American Court legal questions when requested by served as president of the Japan Institute of Human Rights and of the Adminis- one of the six organs of the United of International Affairs, and professor trative Tribunal of the Inter-American Nations or specialized agencies autho- of law and organization at Waseda Development Bank. His many profes- rized to make such a request. The University Graduate School in Japan. sional affiliations include service on the United Nations Truth Commission for El Salvador; United Nations Human Rights Committee; Panels of Concili- ators and of Arbitrators, International Centre for Settlement of Investment Disputes, World Bank; Ethics Com- mission of the International Olympic Committee; and the U.S. Holocaust Memorial Council.

H.E. Christopher Greenwood, seated left, a judge from the United Kingdom on the International Court of Justice, speaks to students and faculty in the Summer Institute for International Law & Policy.

16 | Whitney R. Harris World Law Institute Magazine FALL 2012 By Timothy J. Fox

Earlier this year, Her Excellency Xue Nations special committees, including international law at Utrecht University Hanqin delivered the annual William C. The Hague Conference on Private in The Netherlands. Jones Lecture at the law school. Hanqin, International Law, the Framework Washington University is also one of from China, is another of the 15 judges Convention on Climate Change, and the few universities in the world invited currently sitting on the ICJ. Her address, the Convention on the Elimination of to participate in the ICJ’s University “The International Court of Justice and All Forms of Discrimination against Traineeship Programme. With only 16 Judicial Settlement of International Dis- Women. She serves as the current universities nominating students to the putes: Changes and Challenges,” gave president of the Asian Society of Inter- program in 2012, Washington Univer- a concise history of the court before national Law. sity students are among an elite group describing the current challenges and Several other ICJ judges have applying for these opportunities to opportunities before it. interacted closely with Washington learn about international justice on the Prior to joining the ICJ, Xue repre- University students. Judges Buergenthal, global stage. sented China as an ambassador and in Joan Donoghue, and H.E. Christopher “We are honored to have so many many international negotiations, expert Greenwood have spent time with law wonderful opportunities to interact meetings, and diplomatic conferences. school students visiting the Peace Pal- with the judges on the world court and She served the Foreign Ministry of China ace as part of the Summer Institute for to have them teach our students about in various roles, including Director- International Law & Policy. Offered by their important work,” says Leila Nadya General of the Department of Treaty and Washington University School of Law Sadat, Harris Institute director and Law, Legal Council of the Ministry of and Case Western Reserve University the Henry H. Oberschelp Professor Foreign Affairs, Chinese Ambassador to School of Law, the Summer Institute of Law. |||| The Netherlands, and Chinese Ambas- provides exciting opportunities to study sador to the Association of Southeast Asian Nations (ASEAN). Xue also headed the Chinese delegation for many United

Professor Leila Nadya Sadat, right, welcomes H.E. Hisashi Owada of Japan, president of H.E. Thomas Buergenthal, the U.S. judge H.E. Xue Hanqin, the judge from China on the International Court of Justice from 2009 on the International Court of Justice, who the International Court of Justice, at the to 2012, delivering a Harris Institute lecture served as a Tyrrell Williams lecturer at the 2012 William C. Jones lecture. law school

Whitney R. Harris World Law Institute Magazine FALL 2012 | 17 Scholarly Voices from the Faculty Colloquium on International Law and Theory

wenty international LAW scholars from 10 U.S. states; Toronto, Canada; Paris, France; Israel; and Argentina, gathered at Washington University School of Law last fall for the Faculty Colloquium on Inter- national Law and Theory. Hosted by the Whitney R. Harris World Law Institute, the two- day faculty colloquium explored critical issues affecting international T law today, including the status of treaties and U.S. law, climate change, crimes against humanity, targeted killing, and head of state immunity. “The colloquium’s informal workshop atmosphere allows for considered, cross- disciplinary interaction among some of the leading minds in the field,” says Leila Nadya Sadat, the Henry H. Oberschelp Professor of Law and Harris Institute director. Sadat not only co-chaired the conference, but also presented one of the 10 working papers, “Crimes Against Humanity: Limits, Leverage, and Future Concerns.”

“Successful prosecu- “The extensive current “While there is a “The revival of the “At a minimum, a sol- tions for crimes against debate about the status need for more action friendship, commerce, dier may not intention- humanity will be critical of international law in on climate change at and navigation treaty ally kill an individual for the International the U.S. legal system international, national, program would provide unless she reasonably Criminal Court to ful- is not just the con- and state levels, a valuable opportunity believes that individual fill its mandate to end tinuation of a domestic and regional ones in to negotiate updated is a combatant. Sol- impunity for inter- brawl in a different between, different versions of the FCN diers also must take national crimes that venue. There is some- types of suburbs, treaty with those coun- additional precautions shock the conscience thing genuinely as they participate in tries with which trea- unless doing so would of humankind, and are international about it.” multilevel networks, ties were concluded increase the risk to the vitally important to the can provide models long ago. … It is past soldiers substantially deterrent element of for suburban action time to evaluate more than doing so Paul Dubinsky the Court’s work.” and serve as part of whether deals struck would decrease the risk pluralist, polycentric more than a century of mistakenly killing efforts to address ago are still deals that civilians.” Leila Nadya Sadat climate change.” serve the interests of the United States.” Adil Ahmad Haque Hari Osofsky John Coyle

18 | Whitney R. Harris World Law Institute Magazine FALL 2012 By Timothy J. Fox

Melissa Waters Elena Baylis Adam Rosenzweig Ingrid Wuerth Barry Carter John Coyle

“The colloquium is consistent with one of the Harris Institute’s missions: to support and encourage scholarship at the forefront of international and humanitarian law,” Sadat says. Ten other scholars from around the world took part in the conversation as discussants, including Sadat’s co-chair, Melissa Waters, Washington University professor of law and co-director of the new online LLM program for foreign Leila Nadya Sadat Hari Osofsky Adil Ahmad Haque Paul Dubinsky lawyers, @WashULaw. For more information, visit: law. wustl.edu/news/pages.aspx?id=9023. ||||

Faculty Colloquium Faculty Colloquium Presenters Discussants

Elena Baylis, University of Pittsburgh Hari Osofsky, University of Minnesota Christopher Brummer, Georgetown School of Law, “Justice Junkies on Law School, “Climate Change Efforts: University Law Center the Move” Possibilities for Small and Nimble Olivier Cahn, Université de Cergy Cities Participating in Regional, State, John Coyle, UNC School of Law, Pontoise National, and International Networks” “Reviving the Treaty of Friendship, Barry Carter, Georgetown Commerce, and Navigation” Leila N. Sadat, Washington University University Law Center School of Law, “Crimes Against Paul Dubinsky, Wayne State University Humanity: Limits, Leverage, and Amos N. Guiora, S.J. Quinney Law School, “The Place of International Future Concerns” College of Law, University of Utah Law in the U.S. Legal System: The Fragile Status of the Traditional Understanding Matthew Waxman, Columbia Monica Hakimi, University in the Winter of Our Discontent” Law School, “Regulating Resort to of Michigan Force: Form and Substance of the U.N. Adil Ahmad Haque, Rutgers School of Charles Jalloh, University of Charter Regime” Law–Newark, “Killing in the Fog of War” Pittsburgh School of Law Ingrid Wuerth, Vanderbilt University Maximo Langer, UCLA School of Law, Karen Knop, University of Toronto Law School, “Pinochet Revisited: “The Archipelago and the Hub: Universal Human Rights and Immunity in David Law, Washington University Jurisdiction and the International National Courts” School of Law Criminal Court” Pierre-Henri Prélot, Université de Saira Mohamed, UC Berkeley School of Cergy Pontoise Law, “Shame in the Security Council” Melissa Waters, Washington University School of Law

Whitney R. Harris World Law Institute Magazine FALL 2012 | 19 [In Review] The Declining Influence of the United States Constitution

n 1987, to mark the bicentennial of ongoing “global judicial dialogue” is suppos- the U.S. Constitution, Time maga- edly diminishing the global appeal and influ- zine released a special issue in which ence of American constitutional jurisprudence. it called the Constitution “a gift to all Studies conducted by scholars in other coun- nations” and proclaimed proudly that tries have begun to yield empirical evidence 160 of the 170 nations then in exis- that citation to U.S. Supreme Court decisions Itence had modeled their constitutions upon by foreign courts is in fact on the decline. our own. As boastful as the claim may be, the By contrast, however, the extent to which editors of Time were not entirely without reason. the U.S. Constitution itself continues to influ- Over its two centuries of history, the U.S. ence the adoption and revision of constitutions Constitution has had an immense impact on the in other countries remains a matter of specula- development of constitutionalism around the tion and anecdotal impression. With the help world. Constitutional law has been called one of of an extensive data set of our own creation the “great exports” of the United States. In a number of coun- that spans all national constitutions over the last six decades, this tries, constitutional drafters have copied extensively, and at times article explores the extent to which various prominent constitu- verbatim, from the text of the U.S. Constitution. Countless tions—including the U.S. Constitution—epitomize generic more foreign constitutions have been characterized as this rights constitutionalism or are, instead, increasingly out of sync country’s “constitutional offspring.” with evolving global practice. It is widely assumed among scholars and the general public alike that the United States remains “the hegemonic model” for A stark contrast can be drawn between the declining attrac- constitutionalism in other countries. The U.S. Constitution in tion of the U.S. Constitution as a model for other countries particular continues to be described as “the essential prototype and the increasing attraction of the model provided by Amer- of a written, single document constitution.” ica’s neighbor to the north, Canada. We also address the possibility that today’s constitution makers look for inspiration not There can be no denying the popularity of the Constitution’s only to other national constitutions, but also to regional and most important innovations, such as judicial review, entrench- international human rights instruments such as the Universal ment against legislative change, and the very idea of written Declaration of Human Rights and the European Convention constitutionalism. Today, almost 90% of all countries possess on Human Rights. Our findings do little to assuage American written constitutional documents backed by some kind of judi- fears of diminished influence in the constitutional sphere. cial enforcement. As a result, what Alexis de Tocqueville once Part I introduces the data and methods used in this article described as an American peculiarity is now a basic feature of to quantify constitutional content and measure constitutional almost every state. similarity. Part II describes the global mainstream of rights con- There are growing suspicions, however, that America’s days stitutionalism, in the form of a set of rights that can be found as a constitutional hegemon are coming to an end. It has been in the vast majority of the world’s constitutions. From this core said that the United States is losing constitutional influence set of rights, we construct a hypothetical generic bill of rights because it is increasingly out of sync with an evolving global that exemplifies current trends in rights constitutionalism. We consensus on issues of human rights. Indeed, to the extent that then identify the most and least generic constitutions in the other countries still look to the United States as an example, world, measured by their similarity to this generic bill of rights, their goal may be less to imitate American constitutionalism and we pinpoint the ways in which the rights-related provisions than to avoid its perceived flaws and mistakes. of the U.S. Constitution depart from this generic model. Scholarly and popular attention has focused in particular Part III documents the growing divergence of the U.S. upon the influence of American constitutional jurisprudence. Constitution from the global mainstream of written constitu- The reluctance of the U.S. Supreme Court to pay “decent tionalism. Whether the analysis is global in scope or focuses respect to the opinions of mankind” by participating in an more specifically upon countries that share historical, legal,

20 | Whitney R. Harris World Law Institute Magazine FALL 2012 By David S. Law and Mila Versteeg

Part V considers whether the widely celebrated constitutions of Germany, South Africa, or India might instead be leading the way for global constitutionalism. Although all three are currently more mainstream than the U.S. Constitution, we find little evidence that global constitution-writing practices have been strongly shaped by any of the three. Part VI explores the possibility that transnational human rights instruments have begun to shape the practice of formal constitutionalism at the national level. The evidence that international and regional human rights treaties may be serving as models for domestic constitutions varies significantly from treaty to treaty. In particular, we find that the average constitution has increasingly grown to resemble the International Covenant on Civil and Political Rights and the European Convention on Human Rights, as well as the African Charter on Human and

S huttersto c k Peoples’ Rights and the Charter of Civil Society for the Carib- bean Community. There is little evidence, however, that any of these treaties is actually responsible for generating global consensus as to what political, or geographic ties to the United States, the conclusion rights demand formal constitutional protection. Although these remains the same: The U.S. Constitution has become an treaties may express and reinforce preexisting global constitu- increasingly unpopular model for constitutional framers else- tional trends, they do not appear to define those trends in the where. Possible explanations include the sheer brevity of the first place. Constitution, its imperviousness to formal amendment, its Finally, the Conclusion discusses possible explanations for omission of some of the world’s generic constitutional rights, the declining influence of American constitutionalism. These and its inclusion of certain rights that are increasingly rare by include a broad decline in American hegemony across a range global standards. of spheres, a judicial aversion to constitutional comparativism, Parts IV and V tackle the question of whether a prominent a historical and normative commitment to American exception- constitution from some other country has supplanted the U.S. alism, and sheer constitutional obsolescence. |||| Constitution as a model for global constitutionalism. Part IV contrasts the growing deviance of the U.S. Constitution from Excerpted with permission from 87 New York University Law Review 762 (2012) www.law.nyu.edu/ecm_dlv3/groups/public/@ global constitutional practice with the increasing popularity of nyu_law_website_journals_law_review/documents/documents/ecm_ the Canadian approach to rights constitutionalism. Unlike its pro_072892.pdf American counterpart, the Canadian Constitution has remained squarely within the constitutional mainstream. David S. Law, professor of law and professor of political science at Washington University, focuses his scholarship in the areas of public Indeed, when Canada departed from the mainstream by law, comparative law, law and social science, judicial politics, and adopting a new constitution, other countries followed its lead. constitutional and political theory. His scholarship is interdisciplin- Closer examination reveals, however, that the popularity of ary and combines quantitative and qualitative research methods the Canadian model is largely confined to countries with an with comparative approaches to the study of global constitutional- Anglo-American legal tradition. In other words, our analysis ism, constitutional adjudication, and judicial decision-making more suggests that Canada is in the vanguard of what might be called generally. His co-author, Mila Versteeg, is an associate professor of a Commonwealth model of rights constitutionalism, but not law at the University of Virginia School of Law. necessarily of global constitutionalism as a whole.

Whitney R. Harris World Law Institute Magazine FALL 2012 | 21 [In Review] Crimes Against Humanity in the Modern Age

n spite of the promises made after World War II to eliminate the commission of atrocities against the world’s people, Crimes Against Humanity (CAH) continue to persist. Indeed, they are perhaps the most ubiquitous—and horrifying—offenses committed in modern times. INotwithstanding, an understanding of both the theoretical basis and the application of CAH to particular cases has been rendered difficult by an absence of consistent definition and uniform interpretation. In the 1990s, several ad hoc international criminal tribunals were established to respond to the commission of atrocity crimes, including CAH, in specific regions of the world in conflict. Building upon this legacy, in 1998, a new institution—the International Criminal Court (ICC)—was established to take up the task of defining CAH and other atrocity crimes and preventing and punishing their commission. Yet the picture emerging from the Court’s Pre-Trial Cham- Over the next few years, the ad hoc tribunals will complete bers reveals divergent views among the judges about the correct their mandates, and, at least for the time being, the ICC will interpretation of article 7 of the Rome Statute on CAH. This remain the only functioning international criminal jurisdiction is particularly true of its requirement that CAH be committed in the world. The question of how CAH will play out in pursuant to a “state or organizational policy.” the ICC is thus critically important, given the centrality of While some opinions involve long and thoughtful discus- CAH to successful atrocity crime prosecutions, as this article sions of the Statute as well as the customary international law of demonstrates. CAH, others are inexplicably terse, providing virtually no guidance on important and open-ended questions of interpretation. Moreover, because the ICC is a permanent court with the Several proffer unconventional readings of article 7 and others capacity to intervene in ongoing conflict situations—even prior unduly restrictive interpretations of its text. to the outbreak of conflict in some cases—prosecutions for Although the Statute exhorts the judges to construe defini- CAH may assume a preventive role at the ICC that they could tions of crimes “strictly,” with any doubt accruing to the never have assumed at the ad hoc tribunals. More than any benefit of the accused, some opinions of the Pre-Trial Cham- other crime in the Rome Statute, CAH offer the possibility of bers of the Court exceed this requirement by introducing new avoiding another holocaust—and honoring the promises made limitations on CAH not found in or required by the text of following World War II—by permitting international interven- the Statute or customary international law. The conflict regard- tion before atrocities completely overwhelm a given civilian ing article 7’s proper scope of application is perhaps most population. The recent international intervention in Libya is evident in the dissenting and majority opinions in Pre-Trial a case in point. Chamber II’s decision to approve the ICC Prosecutor’s request But is the International Criminal Court up to the task? The to open an investigation into the post-election violence in early jurisprudence of the ICC raises some serious concerns. Kenya. Indeed, couched in the legalese of the opinions in the As one would expect based upon the data in this article, CAH Kenya case appears to be nothing less than a struggle to shape prosecutions have quickly emerged as central to the ability of the future jurisdiction and direction of the Court. the ICC to fulfill its mandate. Indeed, as of this writing, CAH The dissent in the Kenya case penned by the Court’s former have been charged in all seven of the situations currently before second Vice-President, Judge Hans-Peter Kaul, has attracted the Court, and in the Kenya, Libya and Côte d’Ivoire situations, much positive scholarly attention. Indeed, several scholars have CAH currently provide the only possible basis for the Court’s either implicitly or explicitly aligned themselves with the dissent, jurisdiction ratione materiae. referring positively to the focus of the dissent on the “historic

22 | Whitney R. Harris World Law Institute Magazine FALL 2010 By Leila Nadya Sadat

context of the adoption of crimes against humanity” and its tribunals—and the ICC—in regards to Crimes Against Human- “careful reasoning” and “methodological transparency.” While ity and ask what “work” is CAH doing as a category of crime as a acknowledging the important contribution of the dissent to matter of observable practice. It analyzes the indictment practice our understanding of CAH, this article parts company with at three of the ad hoc tribunals as well as the conviction rates it, finding the majority view closer to the text, context, and on all counts to determine how often and to what effect CAH contemporary understanding of CAH in modern international counts are being used in particular cases. criminal law. This empirical analysis informs my construction of a new Although the dissent raises real concerns about the capacity understanding of Crimes Against Humanity in modern inter- of the Court to absorb the cases being sent to it—and perhaps national criminal law at the ICC. Challenging the conventional about the wisdom of the Prosecutor’s overall strategy— wisdom on this question, I suggest that CAH at the ICC— reshaping the technical requirements of the Court’s substan- the world’s first permanent international criminal court—was tive law as a means to protect the Court’s workload or correct a intended by the framers of the Rome Statute to emerge from the perception of prosecutorial overreaching is the wrong solution. shadow of Nuremberg and develop—appropriately constrained Judge Kaul relies upon the Nuremberg precedent to underscore by text, canons of judicial construction, and considerations of his conclusion that only States or quasi-State-like organizations sovereignty—as a contemporary antidote to widespread or sys- following criminal policies may commit CAH. tematic human rights violations against civilian populations in However heretical it may seem to object, given the canonical today’s world. status of the Nuremberg precedent in international criminal law, this historical approach does not appear sufficient as a response This article explores the phenomenon of CAH (Part II), to the suffering of today’s victims of CAH nor does it accurately briefly describes their application by three of the ad hoc interna- describe the modern law of CAH. Indeed, it may represent a tional criminal tribunals (Part III), and addresses their codifica- Eurocentric view of CAH as well as one that would ultimately tion in the ICC Statute (Part IV). It demonstrates that CAH limit the applicability of CAH as a category of crimes at the prosecutions have been central to the success of the ad hoc ICC, just as genocide was limited at the ICTY, rendering it tribunals both quantitatively and qualitatively: They are charged equally impotent as a tool not only as regards the post hoc to capture key social harms; to address discriminatory and per- punishment of offenders, but as regards the possibility of pre- secutory campaigns that cannot “qualify” as genocide; to avoid vention and deterrence. As this article demonstrates, this result lengthy and unproductive discussions about whether a conflict is neither required by the text of the ICC Statute, nor desirable is international or non-international in nature by eliminating as a matter of international law and policy. armed conflict as an element of the crime; and perhaps most This article represents the first effort to comprehensively and importantly, to provide broad protection for civilians against empirically assess the work of the ad hoc international criminal the depredations of States or organizations whose policy it is to attack them. Finally, the article comprehensively surveys the ICC’s CAH jurisprudence to date (Part V). The article concludes by offering not only an analysis of the Court’s early case law, but a critique in the hopes of moving towards a theory of CAH at the ICC that not only respects State sovereignty but implements the mandate of the ICC to prevent and punish “unimaginable atrocities that deeply shock the conscience of humanity.” ||||

Forthcoming in The American Journal of International Law

Leila Nadya Sadat, the Henry H. Oberschelp Professor of Law and director of the Whitney R. Harris World Law Institute, is one of the world’s leading authorities on international criminal law and human rights, and a prolific and award-winning scholar. She was

I sto c kphoto recently elected to the U.S. Council on Foreign Relations.

International Criminal Court

Whitney R. Harris World Law Institute Magazine FALL 2012 | 23 [In Review] Two Tales of a Treaty Revisited: The Proposed Anti-Counterfeiting Trade Agreement (ACTA)

ver the past four years, through a provisions would not coordinated series of public announcements be limited to targeting that seemed to have been stimulated in part commercial trade in by previously leaked documents, details grad- counterfeit and pirated ually have come to light concerning negotia- physical goods, but tions over a proposed Anti-Counterfeiting would also extend to OTrade Agreement (ACTA). According to the governments “significant willful involved in these closed-door “plurilateral” trade negotiations, infringements without the purpose of ACTA was simply to help fight the proliferation motivation for finan- of counterfeit and pirated goods in international trade. cial gain to such an From the outset, however, the negotiations were embroiled extent as to prejudi- in controversy, for at least four reasons. First, while the negotia- cially affect the copy- tions were initially carried out behind closed doors, industry right owner (e.g., Internet piracy).” To the suspicious eye, this representatives were apparently being supplied with informa- verbatim quote from the leaked document clearly seemed to tion that was not being disseminated to the public. Second, the be referring to digital file-sharing—a controversial consumer “plurilateral” nature of the negotiations aroused suspicions that phenomenon, to be sure, but quite distinct from the issue of the ACTA negotiations were but the latest example of “forum- commercial trade in counterfeit and pirated physical goods. shifting”—a well-documented tactic that is apparently being deployed by owners of intellectual property (IP) in an effort to A particularly jolting development in the effort by crit- ratchet up international standards for the protection of private ics to secure more specifics concerning the ACTA negotiations intellectual property rights (IPRs). occurred in March 2009, when, notwithstanding President Obama’s campaign promises of greater transparency in U.S. These procedural concerns about the conduct of the negotia- government policymaking, the Office of the U.S. Trade tions, in turn, contributed to two further suspicions about the Representative (USTR) denied a Freedom of Information Act substantive purpose and scope of ACTA. The first suspicion (FOIA) request for a copy of the ACTA discussion draft and was that ACTA was simply an effort on the part of intellectual related materials on the ground that they were “classified in property owners to socialize the enforcement costs of their pri- the interest of national security.” vate IPRs by enhanced civil, criminal, and border enforcement [Then] on November 15, 2010, the United States, along proceedings and remedies. with its negotiating partners Australia, Canada, the European The second suspicion—generated in part by a leaked nego- Union, Japan, Korea, Mexico, Morocco, New Zealand, tiating document—was that the focus of these … enforcement Singapore, and Switzerland, announced that the parties had finalized the text of ACTA. The release of this final draft provided a number of answers to lurking questions regarding the scope and purpose of ACTA. …While a majority of the provisions in the final draft target illegal counterfeit and pirated goods in international trade, these same provisions also address IP enforcement efforts in other, more controversial, contexts (albeit still involving trade in physical goods). [Additionally,] Article 27 of ACTA explicitly requires parties to take certain measures to address the enforcement of intellectual property rights in the digital domain. E rin Kaw e ll

24 | Whitney R. Harris World Law Institute Magazine FALL 2012 By Charles R. McManis and John S. Pelletier

The conflation of these three distinct concerns not only of petitions, protests, attacks on government websites, and a pro- slowed the ACTA negotiation process, but also has created a posed “black out” similar to the one occurring [internationally] host of continuing concerns about ACTA that may ultimately on January 18, 2012. Ultimately, this coordinated effort caused undermine ACTA’s entry into force—or its overall effectiveness Polish Prime Minister Donald Tusk to announce that Poland as a practical matter. Since the release of the final proposed text, would not sign ACTA and to send a letter to the European eight countries—the United States, Australia, Canada, Korea, Parliament (EP) asking them to reject ACTA. Japan, New Zealand, Morocco, and Singapore—have signed Further protests occurred, starting in Sweden and Slovenia, ACTA. However, support for ratification among the parties and eventually culminating on February 11, 2012, with coordi- negotiating the final draft is divided and mired in controversy. nated protests occurring in 200 European cities. Perhaps the Within six months of the release of the final proposed text, most dramatic event in this entire chain of events was the resig- the Mexican Senate adopted a resolution advising that the Federal nation of the EP Rapporteur (i.e., investigator) for ACTA, Executive not ratify it. On the other hand, one week later Kader Arif, who stated that his resignation was intended “to the EC recommended ratification of ACTA by the European denounce in the strongest possible manner the entire process Parliament without further review, while the U.S. Trade that led to the signature of [ACTA].” Representative has taken the view that ratification of ACTA by the U.S. Senate is not necessary. On February 25, 2012, Whatever one makes of these “watershed events,” they do however, the European Parliament (EP) received a petition not bode particularly well for the future of ACTA. After all, signed by 2.5 million people from all over the world asking how can ACTA’s proponents expect to persuade developing them to “stand for a free and open Internet and reject the countries to implement legislation modeled on the Digital ratification of the Anti-Counterfeiting Trade Agreement. …” Millennium Copyright Act or the EU Copyright Directive, In response, the EP [launched] its own in-depth investigation when it is widely conceded that these measures have been into the ramifications of signing ACTA, notwithstanding the ineffective in containing massive digital file sharing? And previous recommendation of the EC. [In fact, on July 5, 2012, how can they persuade developing countries to pass stronger the EP overwhelmingly rejected ACTA.] legislative measures in the face of the unprecedented protests at home against precisely such measures? ACTA proponents have two powerful rebuttal arguments In the words of one ACTA commentator, it is “difficult to the criticism that ACTA is merely the latest chapter in an to understand how ACTA could induce other countries that industry-instigated industrialized-world effort to impose ever are not current parties to the U.S. free trade agreements or the higher standards of IP protection on a reluctant developing EU economic partnership agreements, especially those that are world. First, although ACTA is admittedly an industrialized- emerging and quite powerful, to take up new obligations under world initiative, a fluid, but generally increasing number of this agreement.” Thus, even ACTA’s proponents have reason developing countries subsequently joined in the negotiations. … to fear that, unless ACTA helps restart multilateral negotiations Second, while the participation of these developing countries over international intellectual property enforcement standards, may have been window-dressing, as discrete tangible benefits may it may prove to be an ineffective and superfluous treaty. |||| have been proffered by ACTA’s original proponents to encourage Excerpted with permission from Intellectual Property at the such participation, there are nevertheless ample reasons for devel- Crossroads of Trade (ed. J. Rosén) Edward Elgar (2012) oping countries, particularly those that became involved in the ACTA negotiations, to be concerned with international trade in Charles R. McManis, the Thomas and Karole Green Professor counterfeit and pirated goods, as a mounting body of empirical of Law, is a nationally and internationally known expert on evidence has linked trade in counterfeit and pirated goods with intellectual property and the author or co-author of numerous threats to public health and the involvement of organized crime books, articles, and book chapters. A former consultant to the and terrorist organizations. World Intellectual Property Organization, he is on the Executive [However, the ACTA controversy appears to continue Committee of the International Association of Teachers and unabated.] An announcement by Polish officials that Poland Researchers of Intellectual Property. John S. Pelletier, JD ’12, intended to sign ACTA on January 26, resulted in a series served as his research assistant.

Whitney R. Harris World Law Institute Magazine FALL 2012 | 25 Harris Institute Speakers and Events 2010–12

(left) Leila Nadya Sadat, at podium, introduces participants in a debate on the law- fulness of U.S. drone attacks in the War on Terror, from left: Mary Ellen O’Connell, University of Notre Dame; Matt Sepic (moderator), Minnesota Public Radio; and Kenneth Anderson, American University.

(right) Leonard Rubenstein, Center for Public Health and Human Rights, Johns Hopkins Bloomberg School of Public Health

(left) Lucy Reed, Freshfields Bruckhaus, Deringer

(above) Arsalan Iftikhar, AB ’99, JD ’03, (above) Leila Nadya Sadat, center, with Islamic human rights activist Dawn Johnsen, Indiana School of Law, right, and Karen Tokarz

(right) Participants at the 2010 International Humanitarian Law Dialogs at the Chautauqua Insti- tution, Chautauqua, New York

26 | Whitney R. Harris World Law Institute Magazine FALL 2012 (right) Kristin Kalla, Trust Fund for Victims, International Criminal Court

(left) Anna Crosslin, (right) H.E. Xue International Insti- Hanqin, Inter- tute of St. Louis national Court of Justice

(right) Andrew (right) Fatou Cayley, Extraordinary Bensouda, Chambers in the International Courts of Cambodia Criminal Court

(right) JD Stier, Enough Project’s Raise Hope (above) From left: Melissa Waters; for Congo Steven Schneebaum, International Law Students Association and Greenberg Traurig LLP; and Leila Nadya Sadat

(left) Neil Richards with co-organizer Kirsty Hughes at the Washington University–Cambridge International Privacy Law Conference at Clare College, University of Cambridge

Whitney R. Harris World Law Institute Magazine FALL 2012 | 27 [Notes from the Field]

By Seth Heller, JD ’08 A Journey to Jerusalem

hat, you already accepted?” I remember clearly For example, a constitutional law the surprise in my friend’s voice when he wondered issue might come up before the court. out loud whether I was crazy to accept immediately A foreign clerk might research how other an offer to serve as a foreign clerk at the Supreme countries handle that same issue—be it, Court of Israel. It was true; I had almost immedi- for example, the United States, Australia, ately agreed to move half way across the world to the United Kingdom, or Germany. In “W spend six months in Israel—a country fact, it is not uncommon for opinions I had visited before, but also a country from the Supreme Court of Israel to cite filled with complete strangers to me. foreign cases as support for its decisions. It turned out to be one of the best deci- Personally, I had the good fortune of sions I have ever made. working for Justice Asher D. Grunis, who The clerkship experience was not is now President (Chief Justice). Justice completely unfamiliar to me. I had Grunis met with me almost weekly and (right) Seth Heller previously enjoyed working as a clerk gave me direction for my research. I also (below) Supreme Court of Israel in the United States worked with Justice Grunis’s law clerks, to judges on the U.S. Ron, Naama, Tal, and Yarden, who took Court of Federal particular interest in my experiences at Claims and the U.S. law school and working at a law firm Court of Appeals for in the United States. I could not have the Federal Circuit. asked for a better group to mentor me That said, clerking and introduce me to some of the many in a dynamic country contours of Israeli law and Supreme like Israel—with an Court jurisprudence. almost incomprehen- Living in Israel was also an incred- sible combination ible experience. Now that I am back, the of political, legal, most common question people ask me and national security is whether I felt safe in Israel. The funny issues—was somewhat intimidating. answer is that I felt safer walking around I did not know what to expect. Jerusalem and Tel Aviv than I almost Professionally and personally, I ever do walking around downtown hoped that an international perspective Washington, D.C. would be a positive experience for In all, I was excited to return home me. As it turned out, my growth on to my family, friends, and familiar sur- both fronts exceeded anything I could roundings. Now that I have been back have anticipated. Experiencing Israel for almost six months, I cannot wait to through the lens of a foreign clerk at go back and visit my friends in Israel. In the Supreme Court of Israel was a for- fact, I am helping organize an interna- mative experience. tional intellectual property conference The position of foreign clerk at the in Tel Aviv, scheduled for March 2013. Supreme Court of Israel is an interest- So, next spring, I will be able to return ing concept. Foreign clerks are not like to further develop my personal and pro- ordinary judicial clerks—they do not fessional roots in Israel. |||| read briefs or draft opinions. Instead, foreign clerks conduct comparative legal Seth Heller is now an associate at Arnold

S huttersto c k research related to either matters before & Porter LLP in Washington, D.C., the court or areas of interest to a justice and a member of the firm’s intellectual on the court. property group.

28 | Whitney R. Harris World Law Institute Magazine FALL 2012 [Notes from the Field]

By McCall Carter, JD ’10 Transitional Justice at the ICTR and the ICTY

hen I began functions of the tribunal are carried studying inter- out smoothly and efficiently, and that (below) McCall Carter, second from right, national criminal all Orders from Chambers are put into with Professor Leila Nadya Sadat, third justice as a sopho- effect in a timely manner. from right, Anees Ahmed, senior legal more in college, While my job still requires me to officer, third from left, and Washington University interns at the International little did I imag- do legal research on substantive inter- Criminal Tribunal for ine that I would national criminal law, at times, I spend Rwanda W have the opportunity to most of my days working on issues of work in both of the U.N. how best to apply that law. This requires ad hoc tribunals before me to use creative problem-solving tech- they closed. niques—skills honed not only through As one of the first par- my course work in Alternative Dispute ticipants in Washington Resolution at Washington University, University’s Transna- but also through my participation on tional Law Program, I the law school’s Mediation Team. was given the opportu- In addition to assisting the ICTR nity to intern on two perform its functions, I have had the defense teams at the opportunity to become involved in International Criminal preparing for the commencement of Tribunal for the the various tribunals’ successor, the former Yugoslavia Mechanism for International Criminal (ICTY) while I was Tribunals (MICT). The MICT, of pursuing my master of laws degree which the Arusha Branch commenced in public international law at Utrecht on July 1, 2012, is tasked with carrying University in The Netherlands. out the residual functions of the tribu- Shortly after graduating from this nals, such as fugitive tracking (in the program, in late October 2011, I found case of the ICTR), witness protection, myself on a plane headed to Arusha, and enforcement of sentences. Helping Tanzania, to work as a Pro Bono Legal to establish this new institution has been Researcher in the Chambers of the Inter- both exciting and interesting. national Criminal Tribunal for Rwanda I also have greatly enjoyed the (ICTR), where I now serve as an associate opportunity to mentor the Washington legal officer in the Registry. University interns who have come to Working in the Registry of the ICTR the ICTR, and to see first-hand what is very different from working for either a wonderful contribution Washington Chambers or Defense. The Registry is University has made to the success of responsible for ensuring that all the the tribunal. ||||

McCall Carter is currently serving as an associate legal officer in the Registry of the International Criminal Tribunal for Rwanda and is assisting with the transition to the Mechanism for Interna- tional Criminal Tribunals.

Whitney R. Harris World Law Institute Magazine FALL 2012 | 29 By Timothy J. Fox Harris Institute Founder Legomsky Named Chief Counsel for U.S. Citizenship and Immigration Services, Featured in Symposium

his fall, Stephen H. policies: “What constitutes a ‘family?’” Legomsky, the John S. Parents and children only? Grandparents? Lehmann University A cousin who grew up with a relative and Professor and founder of is “like a brother”? Same-sex couples? the Whitney R. Harris Overall, Ahmad noted, “immigration World Law Institute, law perpetuates a heterosexual interpreta- Twill complete his first year of service tion of ‘family.’” But even for heterosexual as chief counsel for U.S. Citizenship couples, “family immigration is always and Immigration Services (USCIS). incomplete” as families stretch the bound- USCIS is part of the U.S. Department of aries of “family” beyond just parents and Homeland Security (DHS). It is the suc- children, he stressed. cessor agency to the now-defunct Immi- The definition of “family” is crucial

gration and Naturalization Service (INS), Professor Stephen Legomsky to Appleton’s scholarship as well. In the but shorn of its law enforcement opera- states, she sees high value placed on the tions, which now reside elsewhere in the law school for the Immigration and parent/child relationship. For example, a department. As chief counsel, Legomsky Family Reunification conference, which court may allow a parent to be incarcer- manages a staff of 160 attorneys, advises was sponsored by the law school’s Harris ated in a particular facility based on its the director of the agency on legal and Institute, Center for the Interdisciplinary proximity to his or her children. Even policy issues, and serves as a member of Study of Work & Social Capital (CIS), after divorce, courts strive not to limit the DHS and USCIS leadership teams. and Immigration Law Society. In his the connection between children and “Steve is among the most influential opening remarks, Legomsky called fam- families, even for a parent who is not and insightful immigration and citizen- ily reunification policy “one of the most paying court-ordered child support. ship law scholars in the world. He also is pressing issues of our time.” “The meaning of family becomes a a dedicated teacher who cares about peo- The conference consisted of two panel trigger for a host of benefits and protec- ple and about getting things done right,” discussions. The first, “Policies in Israel tions,” Appleton said. “Family integrity says Kent Syverud, dean and the Ethan and Europe,” was moderated by Leila is a guiding principle, and one that immi- A.H. Shepley Distinguished University Nadya Sadat, Harris Institute director gration law perpetuates.” Professor. “I can’t imagine a better choice and the Henry H. Oberschelp Professor Bringing the discussion closer to home, for this vital public service position.” of Law. For this panel, Legomsky shared Crosslin said “family reunification” was Shortly after beginning his govern- the dais with Liav Orgad of Israel’s Inter- “a driving force” for many of the 70,000 ment work, Legomsky returned to the disciplinary Center, Herzliya. Bosnian immigrants who now call Marion Crain, the Wiley B. Rutledge St. Louis home. Crosslin said that once Professor Laura Rosenbury, at podium, Professor of Law and CIS director, in the St. Louis area, the immigrants with panelists at the Immigration and moderated the second panel, “Poli- face daunting economic challenges as Family Reunification conference cies in the United States.” It featured many work two jobs—one to support Susan Appleton, the Lemma Barkeloo their family stateside, and the other to & Phoebe Couzins Professor of Law; support the family members left behind. Muneer Ahmad, clinical professor at “The system is set up with a core kind Yale Law School; and Anna Crosslin, of inhumanity,” Crosslin said, “and it is president and CEO of the International important to realize that these challenges Institute of St. Louis. don’t just affect the immigrant—they are Legomsky said that one burning happening to people around us, and they question is at the center of immigration affect us all.” ||||

30 | Whitney R. Harris World Law Institute Magazine FALL 2012 [Faculty Briefs] International Faculty Scholarship, Activities Washington University law faculty SCOTT BAKER JOHN DROBAK members are expanding the school’s global Professor of Law George Alexander Madill Professor of Real Property & Equity Jurisprudence reach as they teach, present, and research Selected Recent Scholarship abroad. Below is a sampling of recent • “Intellectual Property Disclosure as Selected Recent Activities international and comparative law scholar- ‘Threat’” (with P.Y. Lee & C. Mezzetti), • Delivered three lectures at the Sorbonne ship and recent international activities. 7 International Journal of Economic and Nanterre in Paris, France, drawing Theory 21 (2011) on chapters from book manuscript, Professor Baker concentrates his teaching Courts, Cooperation, and Legitimacy SUSAN APPLETON and writing at the intersection of law, • Taught short graduate course, Law economics, and game theory. & the New Institutional Economics, Lemma Barkeloo & Phoebe Couzins Nanterre campus Professor of Law GERRIT DE GEEST • Delivered lecture, “Reactionary Regula- Selected Recent Activities Professor of Law and Director, Center tion: The Unintended Consequences • Presented scholarship, International on Law, Innovation, & Economic Growth of Government’s Response to Crisis,” Academy of Law & Mental Health, conference in Lyon, France, marking Berlin, Germany Selected Recent Scholarship formal opening of the Lyon Bar Associa- • Served as panelist, Washington University • “Carrots, Sticks, and the Multiplication tion new year School of Law conference, Immigration Effect” (with G. Dari Mattiacci), 26 • Presented paper, “Thrainn Eggertsson and & Family Reunification Journal of Law, Economics & Organization the Problem of Knowledge: The Effective- 16 (2010) Professor Appleton’s primary area of focus ness of Conveying Information in the is family law, including adoption, assisted Selected Recent Activities Electoral and Financial Markets,” confer- reproduction, gender and parentage, surro- • Served as professor of law and econom- ence in honor of Thrainn Eggertsson’s gacy, and abortion rights. ics, Utrecht University retirement, University of Iceland • Served as president, European Association Professor Drobak’s primary areas of focus ADAM BADAWI of Law and Economics are interdisciplinary studies, privatization and democratization, and the relationship Associate Professor of Law • Serving as member, Economic Impact between legal incentives and modern Selected Recent Activities Group of the Common Principles of cognitive science. European Contract Law • Taught U.S. corporate law in conjunction with University of Queensland’s Executive Professor De Geest’s primary areas of Dorsey D. Ellis, Jr. focus are law and economics, and compara- LLM program Dean Emeritus; William R. Orthwein tive law. Professor Badawi’s primary areas of focus Distinguished Professor of Law are contracts and commercial law. Emeritus; and Academic Director, Transnational Law Program Selected Recent Scholarship • “Projecting the Long Arm of the Law: Extraterritorial Criminal Enforcement of U.S. Antitrust Laws in the Global Econ- omy,” 1 Washington University Global Studies Law Review (forthcoming) Selected Recent Activities • Taught International & Comparative Antitrust Law, Summer Institute for International Law & Policy, Utrecht • Has taught in Belgium, China, Korea, Italy, Oxford, Taiwan, and Tokyo, and as a Fulbright Fellow in Lisbon, Portugal Professor Ellis’s primary areas of focus are legal history, antitrust, regulated industries, law and economics, and torts.

Leigh Greenhaw Senior Lecturer in Law Meeting of the Minds Selected Recent Activities In March 2012, Leila Sadat met with ICC Prosecutor Luis Moreno-Ocampo, left, and former • Lectured on “From Tensile to Flaccid: Nuremberg Prosecutor Benjamin Ferencz, right, to discuss the relationship between the crime The Strength and Resiliency of the of aggression and crimes against humanity. Sadat also shared her books with them. Religion Clauses under the Rehnquist &

Whitney R. Harris World Law Institute Magazine FALL 2012 | 31 [Faculty Briefs]

• Served as visiting professor, Fudan University, Shanghai, teaching constitutional law class • Delivered lecture on federalism, “The Supreme Court’s Next ‘Big’ Case: Presi- dent Obama’s Health Care Legislation and the Federal System of Government in the United States,” Fudan University • Lectured at and met with students, faculty, and deans at seven other law schools in addition to Fudan: Renmin University, China’s School of Law in Beijing; Shantou University Law School; Xiamen University Law School; Nanjing Normal University Law School; Zhejiang University’s Guanghua Law School in Hangzhou; East China University of Political Science and Law, Shanghai; and Jiao Tong University’s KoGuan Shanghai Presentation Law School of Shanghai Ronald M. Levin, the William R. Orthwein Distinguished Professor of Law, confers with a • Collaborated with Leigh Greenhaw colleague in Shanghai, China. Levin was in Shanghai as the featured speaker at an Inter- and Washington University’s Office national Workshop on Amendment of the Administrative Litigation Law (ALL). In his lecture, of International Programs to arrange Levin summarized judicial review developments of the past decade in the United States, Brazilian delegation visit noting that the American system of judicial review is largely stable but that it continues to Professor La Pierre’s primary areas of evolve through case law. focus are civil rights, school desegregation, election law, and federalism issues.

Roberts Courts,” Faculty of the Waseda Principle and Limits of Zealous Advocacy C.J. Larkin University School of Law, Tokyo, Japan as a Measure of the Ethical Lawyer,” Senior Lecturer in Law and • Collaborated with D. Bruce La Pierre “Collaboration between Disciplines Administrative Director, Negotiation and Washington University’s Office in Clinical and Experiential Learning,” & Dispute Resolution Program of International Programs to arrange “Clinical Legal Education and the Selected Recent Activities Brazilian delegation visit Mainstream Law Curriculum,” and “Identifying Best Practices for Student/ • Delivered four days of lectures on • Served as visiting professor, Aoyama Supervisor Interactions” commercial mediation, Free University Gakuin University Law School in Tbilisi, Georgia Tokyo, Japan, and visiting scholar, • Served as project evaluator, Australian Macquarie University School of Law Learning & Teaching Council’s funded • Met with students and administrators in Sydney, Australia project, “Strengthening Australian Legal at other law schools in Tbilisi, Georgia, Education by Integrating Clinical Experi- about Washington University School of Professor Greenhaw’s primary areas of ences: Identifying and Supporting Effec- Law offerings focus are law and religion, equal rights, tive Practices” and other constitutional issues. • Met with representatives of law schools • Traveled to Melbourne and Sydney, Aus- and law firms about potential placement tralia, to interview stakeholders in Austra- opportunities in Istanbul, Turkey Peter A. Joy lian Learning & Teaching Council project, Professor Larkin’s primary areas of focus Vice Dean (2010–12); Henry Hitchcock attended presentation of project to Coun- are mediation, negotiation, ADR theory Professor of Law; and Director, cil of Australian Law Deans in Sydney, and and practice, and mediation advocacy. Criminal Justice Clinic participated in sessions devoted to project at Australasian Law Teachers Association Selected Recent Scholarship Conference, Sydney DAVID S. LAW • “Japan’s New Clinical Programs: Professor Joy’s primary areas of focus are Professor of Law and Professor A Study in Light and Shadow,” Global clinical legal education, legal ethics, and of Political Science Clinical Movement (ed. F.S. Bloch), trial practice. Oxford University Press (2010) Selected Recent Scholarship Selected Recent Activities • “The Myth of the Imposed Constitu- D. Bruce La Pierre tion in Japan,” The Social and Political • Served as visiting professor, University of Professor of Law and Director, Foundations of Constitutions, Cambridge Northumbria Law School, United King- Appellate Clinic University Press (forthcoming) dom; met with faculty and law students • “The Declining Influence of the United • Presented several talks to faculty and Selected Recent Activities States Constitution” (with M. Versteeg), students, University of Northumbria • Taught and lectured at Universidade Catol- 87 New York University Law Review Law School, including “Hired Gun? The ica Portuguesa (UCP), Lisbon, Portugal 762 (2012)

32 | Whitney R. Harris World Law Institute Magazine FALL 2012 • “The Evolution and Ideology of Global • “Citizens’ Rights and Human Rights,’’ WEI LUO Constitutionalism” (with M. Versteeg), 43 Israel Law Review 67 (2010) Lecturer in Law and Director of 99 California Law Review 1163 (2011), • “Restructuring Immigration Adjudica- Technical Services, Law Library translated into Chinese, Tsinghua Rule tion,” 59 Duke Law Journal 1635 (2010) of Law Forum (trans. X. Xiaofei, Selected Recent Scholarship forthcoming) Selected Recent Activities • “Chinese Criminal Law,” The Handbook • “The Limits of Global Judicial Dialogue” • Serving as University Ambassador, of Comparative Criminal Law (eds. (with W.-C. Chang), 86 Washington Law University of Hong Kong, through K.J. Heller & M.D. Dubber), Stanford Review 423 (2011) Washington University’s McDonnell University Press (2010) International Scholars Academy • “Why Has Judicial Review Failed in Selected Recent Activities Japan?,” 88 Washington University Law • Delivered keynote addresses, biennial • Serving as member and past chair, Review 1425 (2011); being translated Conference of U.S. Immigration Professors, American Association of Law Libraries’ into Japanese and published in Seikei- and naturalization ceremony in Miami Asian Law Working Group Ronso (The Review of Economics and • Served as discussant at comparative immi- • Serving as member and past president, Political Science) gration law conference, Azores, speaking Asian American Law Library Caucus Selected Recent Activities on application of criminal justice principles to immigration law • Working with the Legislative Affairs Office • Co-hosted Washington University School of the People’s Republic of China’s State of Law symposium (with J. Haley), Decision- Professor Legomsky’s primary areas of focus Council on the creation of a codification Making on the Japanese Supreme Court; are U.S., comparative, and international system for the PRC’s laws and regulations symposium featured two former justices of immigration and refugee law and policy. Professor Luo’s primary areas of focus are the Japanese Supreme Court; papers pub- Chinese law and legal research, in addition lished in Washington University Law Review Ronald M. Levin to his work in the law library. • Served as Fulbright scholar, National Tai- William R. Orthwein Distinguished wan University College of Law; conducted Professor of Law CHARLES R. McMANIS research on Taiwan’s Constitutional Court Selected Recent Activities and co-taught graduate seminar on consti- Thomas & Karole Green Professor of Law • Served as featured speaker, International tutional law and politics in East Asia Selected Recent Scholarship Workshop on Amendment of the Admin- • Served as visiting professor, Seoul National istrative Litigation Law, Shanghai; summa- • “Two Tales of a Treaty Revisited: University School of Law; taught com- rized judicial review developments of the The Proposed Anti-Counterfeiting Trade parative constitutional law to Korean law past decade in the United States Agreement (ACTA),” Intellectual Property students and conducted research on the at the Crossroads of Trade (ed. J. Rosén) Korean Constitutional Court. Previously Professor Levin’s primary areas of focus are Edward Elgar (2012) served as visiting scholar, Keio University administrative law and legislation, ranging Selected Recent Activities Faculty of Law, Tokyo, and International from rulemaking and judicial review to Affairs Fellow in Japan, Council on regulatory reform and legislative ethics. • Serving as University Ambassador, Korea Foreign Relations University, through Washington University’s McDonnell International Scholars Academy • Gave presentations on political prosecu- Jo Ellen Lewis tions in Taiwan, Woodrow Wilson Interna- Professor of Practice and Director, • Served as consultant, World Intellectual tional Center for Scholars in Washington, Legal Practice Program Property Organization D.C., and on Japanese law and politics, Selected Recent Scholarship • Has taught, lectured, and/or researched annual meeting of Hitachi Scholars, throughout the United States and Council on Foreign Relations • “Legal Writing Programs in Korean Argentina, Brazil, China, England, Law Schools: Possible Structures and Professor Law’s primary areas of focus are law Germany, India, Japan, Korea, Malaysia, Resources,” 10 Journal of Korean Law and political science, comparative public law, Singapore, Switzerland, and Taiwan 381 (2010) judicial politics, constitutional politics, and Professor McManis’s primary area of focus constitutional theory. Selected Recent Activities is intellectual property law. • Taught Introduction to American Law to Stephen H. Legomsky undergraduate law students and Special KIMBERLY NORWOOD Topics in U.S. Law: Torts to graduate John S. Lehmann University Professor; law students, Aoyama Gakuin University Professor of Law on leave to serve as Chief Counsel of U.S. School of Law, Tokyo Citizenship and Immigration Services, Selected Recent Activities Department of Homeland Security • Delivered presentation, “Clinical Legal • Taught comparative products liability Education: Training Future Practitioners,” course, Utrecht University Selected Recent Scholarship Waseda University Institute of Clinical • Helped establish public interest externships • Immigration and Refugee Law and Legal Education Policy (with C. Rodríguez, beginning for law students working in Ghana and Professor Lewis’s primary areas of interest with 5th ed.), Foundation Press (5th ed. Kenya, through law school’s Africa Public are legal analysis and writing, professional 2009; Supplement, 2010) Interest Law & Conflict Resolution Initiative practice, advanced legal writing, and real • Has taught at Fudan University in Shanghai estate law. and Aoyama Gakuin University, Tokyo Professor Norwood focuses her current research on racial identity, colorism issues,

Whitney R. Harris World Law Institute Magazine FALL 2012 | 33 [Faculty Briefs]

Scholarship of New Faculty Has International Reach

The law school welcomes two outstand- law, including in the Texas International widely, including in peer-reviewed ing new faculty members, associate Law Journal and University of Pennsylva- journals in the United Kingdom professors Elizabeth Sepper and nia Journal of International Law. and Australia. Andrew F. Tuch, both of whose scholar- She clerked for Judge Marjorie Rendell of Tuch clerked for Justice G.L. Davies ship tackles international legal issues. the U.S. Court of Appeals for the Third of the Queensland Court of Appeal, Sepper is a health law scholar whose Circuit and practiced at Human Rights practiced corporate law at Davis Polk work explores the interaction of moral- Watch and New York University School & Wardwell LLP in New York and ity, professional of Law’s Center for Human London, and then was ethics, and law Rights and Global Justice. a member of the Faculty in medicine. of Law at the University Tuch is an accomplished She also has of Sydney. He is a mem- scholar in the fields of corpo- published in the ber of the New York Bar rate law, securities regulation, areas of human and is qualified to prac- and the regulation of financial rights, women’s tice in Australia, England, institutions, especially invest- rights, and inter- and Wales. ment banks. He has published national health

and the intersection of race, class, and • Presented papers drawn from forth- • Served as Alexis de Tocqueville Distin- public education in America. coming book, Intellectual Privacy, Oxford guished Fulbright Chair, honor held by University Press, University of Cambridge only two other U.S. law professors; gave Michael Peil and Durham University, United Kingdom, more than 16 lectures; appeared on and University of Mainz, Germany French national television as an expert in Associate Dean for International the Dominique Strauss Kahn affaire; and Programs; Lecturer in Law; and Executive Professor Richards’ primary areas of focus are privacy and First Amendment Law. taught two courses at the University of Director, Transnational Law Program Cergy-Pontoise Selected Recent Scholarship Leila Nadya Sadat • Met with International Criminal Court • “The Sovereign Debt Crisis, the European Prosecutor Luis Moreno-Ocampo and Fiscal Stability Treaty, and the Balance of Henry H. Oberschelp Professor of Law former Nuremberg Prosecutor Benjamin Power Between the EU and the Member and Director, Whitney R. Harris World Ferencz to discuss relationship between States” (forthcoming) Law Institute the crime of aggression and crimes against humanity Selected Recent Activities Selected Recent Scholarship • Served as visiting scholar, Utrecht • “Crimes Against Humanity in the Modern • Directed and taught in the law school’s University; researched European law Age,”American Journal of International Summer Institute for International Law & and international organizations Law (forthcoming) Policy, Utrecht, which she founded eight years ago • Delivered paper, conference on the role of • “Drone Wars and the Nuremberg individuals in development of international Legacy,”Proceedings of the Sixth • Lectured at the International Criminal law, Cambridge University International Humanitarian Law Dialog, Court and the International Criminal ASIL (forthcoming) Tribunal for Rwanda (ICTR), as well • Delivered lecture, Friedrich-Schiller- as in Uppsala, London, Brussels, and • Forging a Convention for Crimes Against Universität, Jena, Germany The Hague Humanity (ed. L. Sadat), Cambridge Professor Peil’s primary areas of focus are University Press (2011); won Book of the • Traveled to Arusha, Tanzania, to European Union law and international law. Year award, International Association lecture, conduct research, and meet of Penal Law (American Branch) with Washington University law students interning at the ICTR Neil Richards • “Avoiding the Creation of a Gender Professor of Law Ghetto in International Criminal Law,” • Delivered address on accountability for 11 International Criminal Law 655 (2011) atrocity crimes, Raoul Wallenberg Insti- Selected Recent Activities tute in Lund, Sweden, in honor of Wal- • “A Rawlsian Approach to International • Served as visiting professor, Utrecht lenberg’s 100th birthday, and served as Criminal Justice and the International University, co-taught Transnational Legal distinguished discussant, Grotius Lecture, Criminal Court,” 19 Tulane Journal Perspectives—Freedom of Expression American Society of International Law of International & Comparative Law annual meeting • Served as conference organizer, 261 (2010) Washington University–Cambridge International Privacy Law Conference, Selected Recent Activities Clare College, University of Cambridge • Elected to Membership, U.S. Council on Foreign Relations

34 | Whitney R. Harris World Law Institute Magazine FALL 2012 • Delivered Katherine B. Fite lecture, • On The Rule of Law: History, Politics, • Will present paper, “Forty Years of Clinical “Drone Wars and the Nuremberg Theory, Cambridge University Press (2004); Legal Education in South Africa: Looking Legacy,” Chautauqua, New York Ukrainian translation (2007); Chinese Back, Looking Forward,” Conference on Professor Sadat’s primary areas of focus translation, Wuhan University Press (2010) Law and Access to Justice, University of are public international law, international • Law as a Means to an End: Threat to the KwaZulu-Natal in Durban, South Africa, criminal law, and human rights law. Rule of Law, Cambridge University Press December 2012 (2006); Chinese, Japanese, and Spanish Professor Tokarz’s primary areas of focus PEGGIE R. SMITH translations (2012) are dispute resolution, justice and conflict, Selected Recent Activities human trafficking, and international clinical Charles F. Nagel Professor of legal education and dispute resolution. Employment & Labor Law • Lectured at the Rule of Law Symposium, Singapore Academy of Law (co-sponsored Selected Recent Scholarship with National University of Singapore and MELISSA WATERS • “The Pitfalls of Home: Protecting the Singapore Management University School Vice Dean; Professor of Law; Health and Safety of Paid Domestics,” of Law) and Co-Director, @WashULaw 23 Canadian Journal of Women & Law 309 (2011) • Presented lecture series on Theories of Selected Recent Scholarship Law and Society, University of Externado, Selected Recent Activities • Death Penalty Entrepreneurs: How the Bogota, Colombia; also has taught, lec- Europeans Are Taking Down the Death • Served as keynote speaker, Legal Chal- tured, worked and/or conducted research Penalty, One Country at a Time (and Why lenges to Regulating Paid Domestic Work, in Australia, Brazil, Canada, Japan, and the the U.S. Should Care) (forthcoming) International Conference on Excellence in United Kingdom • “Constitutional Engagement in the Trans- the Home, Sustainable Living: Professional • Served as legal counsel, Micronesian Approaches to Housework, London national Era,” book review, 59 American Constitutional Convention and Assistant Journal of Comparative Law 605 (2011) • Presented scholarship, Regulating Decent Attorney General for the Yap State, Work for Domestic Workers: International Federated States of Micronesia • “Judicial Dialogue in Roper: Signaling the Court’s Emergence as a Transnational Legal and Comparative Dialogue, Faculty of Professor Tamanaha’s primary areas of focus Law, McGill University, Montreal Actor? (A Response to Mark Tushnet),” The are comparative law and jurisprudence. U.S. Supreme Court and International Law: Professor Smith’s primary areas of focus Continuity or Change? (eds. D. Sloss et al.), are employment law and the regulation of Karen Tokarz Cambridge University Press (2011) care work. Charles Nagel Professor of Public • “International Law as an Interpretive Tool, Interest Law & Public Service; Director, 1945–2000,” The U.S. Supreme Court and Kent Syverud Negotiation & Dispute Resolution International Law: Continuity or Change? Dean of the Law School and Program; and Director, Civil Rights, (eds. D. Sloss et al.), Cambridge University Ethan A.H. Shepley Distinguished Community Justice & Mediation Clinic Press (2011) University Professor Selected Recent Scholarship • “‘Lawfare’ in the War on Terrorism: Selected Recent Activities • “Advancing Social Justice through ADR A Reclamation Project,” 43 Case • Delivered plenary address, “Mediation and Clinical Legal Education in South Western Reserve Journal of International and Education in the U.S.,” Mediation Africa, India, and the U.S.,” The Global Law 327 (2010) in Asia Conference, Korea University Clinical Movement: Educating Lawyers Selected Recent Activities for Social Justice (ed. F. Block), Oxford • Presented “The Uncertain Future of • Serving as University Ambassador, Utrecht University Press (2010) American Law Schools,” Shanghai University, through Washington University’s Jiao Ton University, KoGuan Law Selected Recent Activities McDonnell International Scholars Academy School and at Peking University School • Visited Washington University School of • Co-Directs new law school online LLM of Transnational Law Law’s sister schools in Australia, Israel, Program in U.S. Law for foreign lawyers, In addition to his role as head of the law and Italy, where she explored possible @WashULaw partnerships with ADR faculty school, Dean Syverud’s primary areas of • Presented scholarship at variety of fora, teaching and scholarship are legal educa- • Collaborated with law faculty at Roma including American Society of International tion, negotiation, complex litigation, insur- Tre University and at ADR Center of Italy Law, and lectured on human rights law, ance, and civil procedure. • Met with clinicians in Israel from across U.S. Department of State, Office of Global the country at the annual colloquium of Women’s Issues Iraq Project BRIAN TAMANAHA Israeli clinical faculty • Serving as member, Public International Law William Gardiner Hammond • Presented paper, “University-Community and Policy Group, ABA International Legal Professor of Law Partnerships and Community-Based Education Committee, and ABA Global Selected Recent Scholarship Teaching, Learning, and Service Programs: Administrative Law Committee • “The Primacy of Society and the Failures Providing Clinical Education for All Law Professor Waters’s primary areas of focus of Law and Development,” 44 Cornell Graduates,” 10th International Journal of are foreign relations law, conflict of laws, International Law Journal (2011) Clinical Legal Education Conference, and human rights law. Northumbria University, United Kingdom • “The Rule of Law and Legal Pluralism in Development,” 3 Hague Journal on the Rule of Law 1 (2011)

Whitney R. Harris World Law Institute Magazine FALL 2012 | 35 [Opinion Piece]

By Peggie R. Smith U.S. Should Ratify Domestic Workers Convention

ecently, the Interna- Workers are also routinely and the right to collective tional Labour Organiza- subjected to harsh working bargaining. tion (ILO) at its annual conditions, including sexual Adopted last year with the conference in Geneva harassment and other forms support of countries ranging agreed to a ground- of physical abuse, exposure from Australia to Brazil and breaking Convention to health and safety hazards, South Africa, the treaty will Ron Decent Work for Domestic Workers. inadequate accommoda- make domestic workers less The Convention establishes international tions for live-in work, and vulnerable to exploitation. standards to improve working conditions excessive working hours. In Although delegates from for as many as 100 million domestic addition, because labor leg- the United States played a workers worldwide, the majority of islation in many countries leading role in rallying sup- whom are women and young girls. denies coverage to domestic work, work- port for the Convention and advocating The Convention defines domestic ers are especially vulnerable to exploitative strong protections on behalf of workers, work as “work performed in or for a labor conditions. it will take a Herculean effort to achieve household or households.” This defini- To be sure, the structure of domes- decent work for domestic workers in the tion includes paid caregivers of children tic work does not fit comfortably into United States. First, the United States must and the elderly, as well as workers hired to existing models of workplace protections. be willing to ratify the Convention. Second, perform general household tasks such as Unlike the majority of workers, domestic assuming ratification, a long road must be cleaning, laundry, shopping, and cooking. workers remain invisible, laboring in the traversed in order to ensure that national Delegates to the conference also adopted private setting of the home and without labor laws meet the level of protection man- an accompanying Recommendation. the support of co-workers. For too long, dated by the Convention’s provisions. At While the Convention is an international the uniqueness of domestic work has present, none of the major pieces of federal treaty that is binding on member states been used to deny workers basic labor labor legislation in the United States comply that ratify it, the nonbinding Recommen- rights extended to the general workforce. with the standards in the Convention. dation provides detailed guidance on how The new ILO standards recognize that Even as it remains to be seen if the to apply the Convention. domestic work is no less valuable because United States will ratify the Convention, In the United States as well as in many of its location within the private sphere the ILO standards expressed therein, as other parts of the world, the provision of the family, nor is it any less sheltered well as those contained in the Recommen- of paid domestic work is essential. It from the harsh realities that often ac- dation, now stand as the benchmark by serves as a vital source of employment company waged work. Indeed, working which to measure the treatment of domestic for low-income women and provides an within private households behind closed workers and by which to hold policymakers indispensable service for countless fami- doors has left domestic workers more accountable. The ILO standards provide lies. Absent the availability of domestic vulnerable than most workers to abuse a useful framework for member states, work, many families would be left in a and labor exploitation including the United States, to make crisis. While not all households employ a The ILO standards aim to help rectify meaningful strides toward achieving domestic worker, for the many who do, the deplorable conditions in domestic decent work for domestic workers. Policy- the availability of services represents a work and to recognize that domestic makers must be continually reminded of significant coping strategy in response to workers are indeed workers, not servants the value of domestic work and constantly the lack of adequate public support to or members of employing households. pressed to regulate such work in a manner care for children and the elderly. Key elements of the Convention require that acknowledges domestic workers as The urgency for access to paid do- governments to accord domestic workers real workers who deserve respect and mestic services is matched by the urgent substantive labor rights that are equiva- inclusion in the scope of general work- need to provide domestic workers with lent to those extended to other workers, place protections. |||| access to fair and decent work. Despite its including overtime compensation, importance, domestic work remains an minimum wage coverage, regular rest Peggie R. Smith, the Charles F. Nagel Professor economically marginalized job. Through- periods, Social Security, coverage under of Employment and Labor Law, is the co- out the world, the work is poorly paid safety and health provisions, and respect author of a treatise on employment law and a and offers workers few if any benefits such for fundamental principles and rights at leading scholar in the regulation of care work as access to health care or maternity leave. work, including freedom of association that occurs both inside and outside the home.

36 | Whitney R. Harris World Law Institute Magazine FALL 2012 Whitney R. Harris World Law Institute magazine

Leila Nadya Sadat, Henry H. Oberschelp Professor of Law and Harris Institute Director Bethel Mulugeta Mandefro, Harris Institute Administrative Coordinator Ann Nicholson, Managing Editor Ryan Rhea, Editor Jenn Hueting, Designer/Art Director Scott Hueting, Designer/Production Artist Mary Butkus, Bill Mathews, Sid Hastings, Andres Alonso, Cylinda Marquart, and WUSTL Photographic Services, Photography Direct Communications to: Bethel Mulugeta Mandefro Harris Institute Administrative Coordinator Washington University School of Law Campus Box 1120, One Brookings Drive St. Louis, MO 63130-4899 (314) 935-7988 [email protected]

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Whitney R. Harris World Law Institute Professor Paul P. Craig The Right Honorable Sir Geoffrey Palmer Professor of English Law, Oxford University Former Prime Minister, New Zealand

International Council Professor Francis Mading Deng Asha Ramgobin Former Special Advisor to the U.N. Secretary- Executive Director, Human Rights Development The work of the Harris Institute is General on the Prevention of Genocide Initiative, South Africa guided by an active International Council, David W. Detjen The Honorable louis B. susman consisting of leading scholars, practitioners, Partner, Alston & Bird LLP U.S. Ambassador to the United Kingdom

and jurists from around the world. The Honorable Richard J. Goldstone The Honorable Patricia M. Wald Elizabeth Andersen Former Justice, Constitutional Court of Former Judge, U.N. International Criminal Tribunal Executive Director & Executive Vice President, South Africa, and former Chief Prosecutor, for the former Yugoslavia, and former Chief Judge, American Society of International Law International Criminal Tribunals for the U.S. Court of Appeals, D.C. Circuit former Yugoslavia and Rwanda The Honorable Louise Arbour Professor Ruth Wedgwood President & CEO, International Crisis Group AÍdaIvone GonzÁlez MartÍnez President, American Branch of the International Former Chairperson, U.N. Committee for the Former U.N. High Commissioner for Human Rights, Law Association; Director of the International Law Elimination of Discrimination Against Women and Organizations Program, Edward B. Burling The Honorable Jorge Arrate Professor of International Law and Diplomacy, Former Cabinet Minister, Chile Professor Jung-Gun Kim Johns Hopkins University Former Dean, Yonsei University College of Law and Professor M. Cherif Bassiouni Graduate School of Law and Intellectual Property Professor Joseph H.H. Weiler President Emeritus, International Human Rights Director, Jean Monnet Center for International and Anthony Lewis Law Institute, DePaul University College of Law Regional Economic Law and Justice, New York Former syndicated columnist, New York Times University School of Law Professor George A. Bermann The Honorable Professor Herbert H.P. Ma Jean Monnet Professor of EU Law, Walter *** Former Grand Justice, Taiwan Judicial Yuan Gelhorn Professor of Law, Columbia University Thomas M. Franck Professor Susan F. Martin The Honorable Professor 1931–2009 Donald G. Herzberg Associate Professor of Rudolf Bernhardt International Migration, Georgetown University Former President, European Court of Human Rights Whitney R. Harris 1912–2010 Steven Cash Nickerson Professor Raj Bhala President and CFO, PDS Tech, Inc. Associate Dean for International and Comparative Law, Raymond F. Rice Distinguished Professor of His Excellency, Judge Hisashi Owada Law, University of Kansas Judge, International Court ofWhitney Justice R. Harris World Law Institute Magazine FALL 2012 | 37 Nonprofit Organization U.S. Postage Paid St. Louis, MO Permit No. 804

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