Devika Hovell’s article is a very welcome and useful contribution to the debate regarding the “accountability” (whatever the term may mean) of international organizations, and the United Nations in particular. The author argues that scholarship has tended to focus on (descriptive) state practice to the detriment of (normative) theoretical appeal, and so the relevant discussion “has received inadequate theoretical attention.” In response, she sets out to tell the story of the United Nations being held to account through a highly theorized (and, if I may venture even at the outset, perhaps a bit stylized) scheme of contrasting “instrumentalist,” “dignitarian,” and “public interest” approaches to due process. This she applies to two case studies, one regarding targeted sanctions imposed by the UN Security Council, mainly in the context of antiterrorism; and one regarding the cholera outbreak in Haiti, where the United Nations has been implicated. Hovell critiques both the instrumentalist and dignitarian approaches, which correspond in broad terms to legal action at the international, and the domestic/regional level, respectively, and argues in favor of a “public interest” approach as better reflecting a “value-based” due process.

Devika Hovell has provided an excellent call to arms for academics to move beyond the question of whether the United Nations has due process deficiencies: By now we all know that it does. She invites us to focus instead on making “the normative case for adopting due process safeguards in UN decision making,” insisting that until now scholars have failed to ask the important theoretical questions underpinning their policy research. Hovell uses two case studies to demonstrate why resort to judicial mechanisms ought not to be the answer when seeking to find ways to ensure due process. She first focuses on targeted sanctions and then turns attention to cholera in Haiti.

Devika Hovell raises deeply significant questions about the role of due process in the legitimacy of the United Nations Security Council (UNSC). Hovell gives us a fine-grained analysis of what exactly makes due process so compelling; in her approach, the reasons why it is compelling will vary in different contexts, depending upon the particular value and function it serves. In particular, she discusses three ways of articulating the values underlying due process, and the models of due process that would follow from each. She then discusses how her analysis would play out in two situations: The Council’s use of asset freezes, and the role of the UN in the cholera epidemic in Haiti. In her case studies, she looks at situations where due process has been insufficient, and discusses some of the UN’s attempts to remedy this, and the organizational difficulties in doing so.

Law abhors a vacuum. Lawyers (including international lawyers) have constructed their profession around the fiction that such a thing is impossible. Where gaps emerge in a legal framework, lawyers face the task of filling it, compromised by the additional hurdle of having to pretend there was no gap in the first place.

The challenge has intensified with the ever-widening and deepening accountability gap that has accompanied the growth of global governance. In the period between H.G. Wells’ writing of The New World Order and the drafting of Security Council resolutions 827, 1267, 1373, and 1540, global governance has evolved from an idea of utopian/dystopian fiction to reality. In a recent article in the American Journal of International Law on “Due Process in the United Nations,” I argue that as legal academics we are justified in taking a more architectural role in proposing a legal framework to fill the good-governance-size hole in this emerging tier of governance. Essayists in the AJIL Unbound Symposium convened in response to my article raised interesting (and fairly fundamental) challenges to the methodology proposed. The hosts of the symposium kindly offered me the chance to respond—I took them up. There may be gaps in international law, but never silences.

The roles that Third World Approaches to International Law (TWAIL) scholars could play in political and/or socio-economic struggles beyond the academy, and the relationships of these scholars to politicians, diplomats activists, civil servants, peasant movements, civil society, and other nonacademic actors are issues as important to TWAIL as they are understudied and underenacted. The three essays in this TWAIL Symposium take up this theme of praxis.

This terrible thing we’re witnessing now is
Not unique; you know it happened before
Or something like it.
We’re not at a loss how to think about it
We’re not without guidance…
Anne Carson, Antigonick (2012).

We in the postcolony currently inhabit times constituted by the aftermaths of the catastrophic failures and tragic reversals of countless projects of global redemption and by the bereavement of their promised futures. As Simon Critchley observes, the experience of disorientation produced by such tragedies acutely raises the problem of action: “[E]xpressed in one bewildered and repeated question . . . what shall I do?” This essay takes this problem as its central concern by asking specifically how international lawyers should act in these “tragic times.”

Feminicidio is a Mexican adaptation of the radical feminist concept of femicide, usually defined as the misogynous murder of women by men because they are women. In this essay based on original fieldwork, I seek to contribute to Third World Approaches to International Law (TWAIL) scholarship by providing a brief analysis of the engagement of Mexican grassroots feminist activists with international human rights law in their struggle against the systematic abduction, murder, and sexual abuse of hundreds of women and girls in Ciudad Juárez, Mexico, and the widespread impunity enveloping these crimes. As a result of this grassroots activism, these murders became known as feminicidios. Feminicidio expanded the existing concept of femicide by exposing the complicity of the state in the killing of women by sustaining the institutionalization of gender inequality. Indeed, activists consistently claimed that the state’s tolerance for impunity perpetuates the notion that women are disposable, and violence against them is not serious. Moreover, they linked this notion to the patriarchal regime of neoliberal capitalism that supports the maquiladora industry in Ciudad Juárez. Activists further drew on international human rights law. They invoked the due diligence obligation to conceptualize the responsibility of the Mexican state for failing to effectively prevent, investigate, and punish the murder of women—despite evidence of a systematic pattern of gendered violence that could only be understood by taking into consideration the intersecting structural gender and class inequalities that feminicidio revealed.

In RJR Nabisco v. European Community, the Court added an exclamation point to a long term trend in its jurisprudence. It believes, this trend indicates, that private civil suits pose specific foreign relations issues, at least when the targets are foreign transactions and actors, to which the Court will respond by erecting barriers. To this general point the case adds an unsurprising, but still important codicil: These problems don’t go away when foreign states take advantage of the U.S. civil litigation system by acting as plaintiffs.

For the past twenty-five years, the presumption against extraterritoriality has been the Supreme Court’s principal tool for determining the geographic scope of federal statutes. In 2010, Morrison v. National Australia Bank used the presumption to decide the scope of Section 10(b) of the Securities Exchange Act, which prohibits securities fraud. Morrison approached the question in two steps. First, it looked for a “clear indication of extraterritoriality” to rebut the presumption and found none. Second, it looked to see if application of the statute would be domestic or extraterritorial by examining the “focus” of the provision. Plaintiffs argued that applying Section 10(b) would be domestic because the alleged fraud occurred in the United States, although they had bought their shares in Australia. The Court disagreed, holding that application of Section 10(b) would be extraterritorial because “the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States,” and in this case the transaction occurred abroad.

The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent—all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act and the Alien Tort Statute (ATS), and, in RJR Nabisco v. European Community, has placed another statute—The Racketeer Influenced and Corrupt Organizations Act (RICO)—on the chopping block. The major surgery performed was amputating RICO’s private right of action for extraterritorial offenses and replacing it with a much stubbier appendage limited to injuries suffered on U.S. territory.

Last year in the Stanford Law Review, I described an emerging trend in U.S. courts: litigation isolationism. Through developments in personal jurisdiction, forum non conveniens, international comity, and the presumption against extraterritoriality, I argued, courts have developed increasingly strong tools for avoiding transnational litigation. Decisions advancing litigation isolationism often fail to accomplish their stated goals—typically promoting separation of powers, avoiding interstate friction, and protecting defendants from the inconvenience of U.S. litigation. They also undermine important U.S. interests, often by excluding or dismissing cases that have close ties to the United States. At the end of that article, I cautioned against the continuation of the trend.

In RJR Nabisco v. European Community, the Supreme Court addressed the extraterritorial application of U.S. law for the third time in six years—in this case examining the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). The decision consolidates and in certain respects expands upon the test for analyzing extraterritoriality issues that the Court had introduced in Morrison v. National Australia Bank and refined in Kiobel v. Royal Dutch Petroleum. It also provides further evidence of the Court’s continuing quest to identify categorical, territory-based rules governing the application of U.S. statutes in cases involving significant foreign elements. As I will argue, however, like other recent decisions, RJR raises doubt as to the sufficiency of such rules to address the messy and often unpredictable patterns of transnational economic activity.

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism—a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco, the Court has strengthened and expanded the presumption. With its decision in RJR Nabisco v. European Community, it is fair to say, the Court has out-Beale’d Beale.

The decision of the Supreme Court in RJR Nabisco v. European Community is the culmination of sixteen years of litigation, preceded by years of investigation. From a European perspective, the decision can only be read as a disappointment: “we” tried, “we” lost. But beyond the frustration with the outcome, this European take on the RJR decision will focus on two questions: (i) why did the European Community decide to bring proceedings in the United States in the first place; and (ii) what would happen in the reverse scenario, if a foreign public authority or a private plaintiff were to bring suit in the European Union? Answering these two questions casts RJR in a slightly different light and offers an interesting picture of the wider political and regulatory context in the European Union.

In “Achieving Sex-Representative International Court Benches,” Nienke Grossman begins with embarrassing statistics. Despite decades of progress on gender equality, women are still quite scarce on international benches. Grossman reframes the debate on gender equity in a powerful way. Most promisingly, she suggests that greater meritocracy and greater gender equity go hand in hand. As she argues, “international judgeships are often used to reward political loyalty” and “political horse-trading among states” abounds. For these reasons, reforms to broaden the pool of candidates and to increase the transparency of the selection process would also result in the appointment of more women, in all likelihood. In addition, Grossman puts forth a provocative legal claim—she argues that “states are legally required to take steps to understand and remedy the paucity of women judges on most international court benches.”

This contribution considers why states as well as international courts and tribunals should act to remedy the gender imbalance on international benches. In my view, the most appropriate question is not why they must, but why they should. Arguments that states are legally bound under the UN Charter to address this gender imbalance are weak, though human rights law does provide a basis for claims that states must take action. But arguments about legitimacy—both normative and sociological—could provide a more persuasive basis for arguing that states as well as courts and tribunals should act. In particular, the normative legitimacy of international courts and tribunals could benefit from selection procedures designed to help ensure that states nominate the most meritorious candidates for judgeships.

Nienke Grossman offers a much needed overview of the statistical patterns behind the substantial underrepresentation of women in international courts benches. As her inquiry reveals, despite the growing proportion of female qualified lawyers, sex representativeness has hardly improved in recent years. On the contrary, in the absence of special requirements in courts’ statutes or judicial selection procedures, the percentage of women judges has actually stagnated or even declined in some cases. Such acute sex imbalance cannot be attributed to the (contingent) fact that not enough qualified women are available for such highly prestigious positions. Grossman persuasively contests the plausibility of this widespread assumption. Not only is the limited-pool argument fallacious, but, as her analysis suggests, part of the problem might actually be that judicial selection procedures lack transparency and are not driven by merit. Instead, nominations of international judges are often used “to reward political loyalty or to advance political agendas”; this practice seriously impinges on the chances of women to be appointed as international judges, as politics (both domestic and international) remains very much a male-dominated sphere.