Looking to the Future: Essays on International Law in Honor of W. Michael Reisman 9004173617, 9789004173613

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Looking to the Future Essays on International Law in Honor of W. Michael Reisman

Looking to the Future Essays on International Law in Honor of W. Michael Reisman

Edited by

Mahnoush H. Arsanjani Jacob Katz Cogan Robert D. Sloane Siegfried Wiessner

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Looking to the future : essays on international law in honor of W. Michael Reisman / edited by Mahnoush H. Arsanjani ... [et al.]. p. cm. ISBN 978-90-04-17361-3 (hardback : alk. paper) 1. International law. 2. Reisman, W. Michael (William Michael), 1939I. Arsanjani, Mahnoush H. II. Reisman, W. Michael (William Michael), 1939KZ3410.L66 2010 341--dc22 2010041551

isbn :

978 90 04 17361 3

Copyright 2011 by Koninklijke Brill nv , Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishing, idc Publishers, Martinus Nijhoff Publishers and vsp . http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa . Fees are subject to change. printed in the netherlands .

Table of Contents

Acknowledgements

xiii

Introduction

xv

W. Michael Reisman: Publications

xxvii

Part I

W. Michael Reisman, The Person

1

Chapter 1

An Appreciation Rosalyn Higgins

3

Chapter 2

Michael Reisman, Dean of the New Haven School of International Law Harold Hongju Koh

13

Chapter 3

L’honneur des juristes Prosper Weil

Chapter 4

Michael Reisman, Human Dignity, and the Law Siegfried Wiessner

21

Part II

Theory About Making and Applying Law

31

Chapter 5

Law as a Process of Communication: Reisman Meets Habermas Adeno Addis

33

The Uses and Abuses of Illusion in International Politics Mahnoush H. Arsanjani

51

Chapter 6

17

Table of Contents

Chapter 7 viii

Prelude to Decision: Michael Reisman, the Intelligence Function, and a Scholar’s Study of Intelligence in Law, Process, and Values James E. Baker

73

Chapter 8

Prologue to a Theory of Non-Treaty Norms Daniel Bodansky

119

Chapter 9

How Nongovernmental Actors Vitalize International Law Steve Charnovitz

135

Chapter 10

Between Façades and Operational Codes: Michael Reisman’s Jurisprudence of Suspicion Menachem Mautner

Chapter 11

Scholarship as Law Jan Paulsson

Chapter 12

Between Minimum and Optimum World Public Order: An Ethical Path for the Future Steven R. Ratner

163

183

195

Chapter 13

The Users of International Law Emmanuel Roucounas

Chapter 14

Rethinking Choice of Law: What Role for the Needs of the Interstate and International Systems? Gary J. Simson

235

More Than What Courts Do: Jurisprudence, Decision, and Dignity—In Brief Encounters and Global Affairs Robert D. Sloane

261

Reconfiguration of Authority and Control of the International Financial Architecture Eisuke Suzuki

271

Remarks on Sovereignty in the Evolving Constitutional Features of the International Community Attila Tanzi

299

International Law as a Coherent System: Unity or Fragmentation? Christian Tomuschat

323

Chapter 15

Chapter 16

Chapter 17

Chapter 18

217

Table of Contents

Chapter 19

Chapter 20

Entrenchment—Human and Divine: A Reflection on Deuteronomy 13:1-6 J.H.H. Weiler Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations Rüdiger Wolfrum

Part III

Making and Applying Human Rights Law

Chapter 21

Secession or Independence—Self-Determination and Human Rights: A Japanese View of Three Basic Issues of International Law Concerning “Taiwan” Nisuke Ando

Chapter 22

Chapter 23

Chapter 24

Chapter 25

Chapter 26

Chapter 27

Chapter 28

355

363

385

387

Reflections on the Torture Policy of the Bush Administration (2001–2008) M. Cherif Bassiouni

395

Waivers in International and European Human Rights Law Lucius Caflisch

407

Reflections on the Current Prospects for International Criminal Justice Antonio Cassese

433

Human Rights and World Public Order: Major Trends of Development, 1980–2010 and Beyond Lung-chu Chen

439

U.N. Human Rights Council Fact-Finding Missions: Lessons from Gaza Christine Chinkin

475

Choice of Gender Identity in International Human Rights Law Aaron Xavier Fellmeth

499

The International Protection of Human Rights as an Element of World Order Jochen Abr. Frowein

517

ix

Table of Contents

Chapter 29

Toward Minimum Standards for Regional Human Rights Systems 527 Christof Heyns Magnus Killander

Chapter 30

Sabbatino, Sosa, and “Supernorms” Kenneth C. Randall Chimène I. Keitner

Chapter 31

Some Remarks about the Realistic Idealism of the European Court of Human Rights Luzius Wildhaber

x

Part IV Chapter 32

Chapter 33

Chapter 34

Chapter 35

Making and Applying Investment and Trade Law Investments, Fair and Equitable Treatment, and the Principle of “Respect for the Integrity of the Law of the Host State”: Toward a Jurisprudence of “Modesty” in Investment Treaty Arbitration Guillermo Aguilar Alvarez Santiago Montt

569

577

579

The Once and Future Foreign Investment Regime José E. Alvarez

607

The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law David D. Caron

649

State Succession and Commercial Obligations: Lessons from Kosovo Tai-Heng Cheng

675

Chapter 36

Emergency Clauses in Investment Treaties: Four Versions Rudolf Dolzer

Chapter 37

Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines: The Strange Persistence of a Martial Law Syndrome Florentino P. Feliciano

Chapter 38

559

Softening Necessity Francisco Orrego Vicuña

705

719

741

Table of Contents

Chapter 39

Truth and Efficiency: The Arbitrator’s Predicament William W. Park

Chapter 40

The Future of Investment Arbitration Christoph Schreuer

Chapter 41

The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea Hi-Taek Shin

Chapter 42

753

787

805

Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration Albert Jan van den Berg

821

China’s Practice in International Investment Law: From Participation to Leadership in the World Economy Guiguo Wang

845

Part V

Making and Applying Law for the Resources of the Planet

891

Chapter 44

On Rocks and Maritime Delimitation Bernard H. Oxman

893

Chapter 45

The Future of International Water Law: Regional Approaches to Shared Watercourses? Salman M.A. Salman

907

Part VI

Making and Applying Law to the Use of Force

929

Chapter 46

The Law on Asymmetric Warfare Eyal Benvenisti

931

Chapter 47

Precautionary Self-Defense and the Future of Preemption in International Law Elli Louka

951

Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire Djamchid Momtaz

989

Chapter 43

Chapter 48

xi

Table of Contents

Chapter 49

U.N. Realities Nicholas Rostow

1003

Part VII

Making and Applying Law by International Tribunals

1025

Chapter 50

The Principle of Compétence de la Compétence in International Adjudication and Its Role in an Era of Multiplication of Courts and Tribunals Laurence Boisson de Chazournes

xii

Chapter 51

Chapter 52

Shaping the Future of International Law: The Role of the World Court in Law-Making Alain Pellet Gorbachev Embraces Compulsory Jurisdiction Stephen M. Schwebel

Contributors and Editors

1027

1065

1085

1095

Acknowledgements

The editors acknowledge with gratitude the invaluable assistance of Cina Santos, Michael Reisman’s long-time assistant at the Yale Law School, throughout the editing and production of this volume. Jacob Katz Cogan appreciates the assistance of Jesse Jenike-Godshalk, Kane Kayser, and Noah Stacy, students and graduates of the University of Cincinnati College of Law. Robert D. Sloane wishes to acknowledge the research assistance of Kristopher Natoli and Alex Lozada, Boston University School of Law, Class of 2010.

Introduction

It has been a privilege to bring together this collection of essays in honor of W. Michael Reisman, our mutual teacher, colleague, and friend. Reisman stands out among his contemporaries as one of the few—and doubtless one of the most astonishingly prolific—remaining generalists among international legal scholars. It would be difficult even to identify an issue in international law, whether conventionally thought to be within the public or the private rubric (a distinction that Reisman eschews and that his work transcends), about which he has not written, often repeatedly and in depth. And this is to say nothing of his copious writings about jurisprudence, speeches he has delivered in fora worldwide, scores of arbitral awards, opinions for the Inter-American Commission on Human Rights, and even, somehow, the occasional novel or collection of short stories. Yet the breadth of Reisman’s scholarship has never compromised its depth. To the contrary, in most of the areas of international law about which he has written, his writings have been profoundly influential, even transformative. Consider two articles from among the scores he has authored in the fields of human rights and international humanitarian law. In Sovereignty and Human Rights in Contemporary International Law,1 he argued that the postwar international human rights revolution had “shift[ed] the fulcrum of the system,” from the protection of states to the protection of people,2 forever changing how international law conceptualizes one of the most frequently used, and just as frequently abused, words in the lexicon of international law: sovereignty. Equally, his creative application of international humanitarian law standards to economic sanctions—which can, he showed, be as or more destructive than the use of force—forever changed how international law conceptualizes the comparative human rights implications of different forms of coercion.3 Reisman’s influence on international law has not been solely through the medium of scholarship. He has long heeded Cicero’s counsel: simultaneously to live a full vita activa and a consummate vita contemplativa, eschewing their artificial separation. 1 2 3

W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866 (1990). Id. at 872. W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int’l L. 86 (1998).

Introduction

xvi

For Reisman, scholarship and practice inform each other. So despite his prodigious scholarly output—or rather, in substantial part because of it—he has long been an active and highly sought-after international lawyer. He has served as an arbitrator in countless international commercial, public international, and investor-state arbitrations; as a member and later Chairman of the Inter-American Commission of Human Rights; as an expert witness; and as an advocate before fora including the International Court of Justice and the International Tribunal on the Law of the Sea. In short, Reisman excels in the vita contemplativa and the vita activa, and while this book focuses on the former, his skill as a practitioner, as several of the following essays attest, is equally prodigious.

* Reisman’s profound and broad influence as a scholar may be attributed in part to his method, what has come to be known as the New Haven School or, by some, as policyoriented jurisprudence. This approach was developed by one of the most remarkable and productive collaborations in the legal history of the United States: that between the eminent international lawyer Myres Smith McDougal and the equally eminent political scientist Harold Dwight Lasswell. While many now associate the New Haven School solely with international law, McDougal and Lasswell did not so limit it.4 Neither does Reisman. The intellectual tasks, conception of the social process, modes of inquiry, decision functions, base and scope values, and so forth, which together define the New Haven School’s method, offer a breathtakingly ambitious, but at the same time deeply practical, way to analyze and solve problems—not only in law, but in international affairs, politics, economics, culture, and other domains of society. The School’s methodology permeates Reisman’s diverse scholarship, tying together his work in academic fields ranging from the microlaw of everyday life (exemplified by the case studies in Law in Brief Encounters5) to international arbitration, human rights, the law of the sea, international organizations, the law of armed conflict, foreign relations law, and the use of force. In Michael Reisman, the New Haven School found a scholar, not only equal to, but unmatched in, the intellectual tasks and methods it prescribes. Whatever the nature of the issue, Reisman uses and develops the School’s intellectual framework with remarkable skill and acumen. He focuses his analytic eye precisely on the relevant objects of observation, be they the (superficially) mundane details of human interaction, the inner worlds of indigenous peoples,6 or the diverse participants in and dynamics of international diplomacy. Unlike the many legal scholars who limit themselves to the formal exegesis of, and performance of logi4 5 6

See generally Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Societ y: Studies in Law, Science and Policy (1992). W. Michael Reisman, Law in Brief Encounters (1999). W. Michael Reisman, International Law and the Inner Worlds of Others, 9 St. Thomas L. Rev. 25 (1996).

Introduction

cal operations upon, traditional legal materials (statutes, cases, treaties, regulations, and the like), Reisman always considers in the first instance what factors, in context, actually make a difference to the problem faced by the legal system. With a fine intellectual scalpel, he separates law’s “myth system” from its “operational code.”7 Fact, for him, in good American tradition, is as important as law; and law, in good Legal Realist tradition, is a particular sort of fact. Like any empirical scholar worth his salt, Reisman is also ever the skeptic. That is why one of our colleagues describes his jurisprudence as one of “suspicion.”8 Because law is often needed where human interaction might otherwise beget violence, Reisman’s work frequently examines the not-so-nice interstices of life in which conflicts tend to arise, and he does not avert his eyes from the darker side of human nature. Consider, for example, his penetrating analysis of bribery and corruption in Folded Lies,9 or his intricate study of lies, deceit, and the masks people employ in their pursuit of professional advancement and power, as portrayed in Spiritual Exercise,10 a novel he wrote under the nom de plume Deborah Shai. Yet external skepticism—that is, skepticism toward and about others—is not enough. For Reisman, the scholar must also be an internal skeptic, that is, self-reflective. In the tradition of the New Haven School, he teaches his students that before they can analyze a legal problem constructively, they must clarify their observational standpoint. The analysis of legal issues, in other words, must begin with a look inward. Difficult though it may prove, scholars should try to disengage from their latent biases, predispositions, and other deeply ingrained character traits—traits shaped by factors such as gender, age, environment, education, experience, religion, and socioeconomic status. “Observation of others is so difficult,” Reisman wrote in one characteristic exposition, “not because other groups … are more complex than ours, but because our own so profoundly shape us, at levels of consciousness so deep that we are often unaware of it.”11 Of course, no one can disengage fully from his latent biases. But the true scholar can and will at least try to become aware of them, for only then can he appreciate the extent to which those biases might be skewing his judgment on an issue. Reisman also adopts the New Haven School’s fundamental moral posit: that the ultimate goal of law should be the optimal production and distribution of human values. Hence his scholarship almost invariably considers the inescapable normative dimension of law. While the background normative goal against which he writes (a world public order of human dignity) is constant and unyielding, he recognizes that the means to reach that goal may properly differ from context to context and from observer to observer. And while his focus on the individual may be deeply American, it is also deeply human. People in vastly distinct societal contexts—from the stone-

7 8 9 10 11

See Michael Reisman, Folded Lies: Bribery, Crusades, and Reforms 15-16 (1979). Menachem Mautner, Between Façades and Operational Codes: Michael Reisman’s Jurisprudence of Suspicion, infra at 163. Reisman, supra note 7. Deborah Shai, Spiritual Exercise (2004). Reisman, supra note 5, at 153.

xvii

Introduction

xviii

age community in Papua New Guinea to Wall Street—ultimately seek and want the same things: power, well-being, wealth, enlightenment, rectitude, respect, skill, and affection. At a certain level of abstraction, human values among and between diverse communities do not differ; they just manifest themselves differently. Reisman’s global perspective is probably what attracted him to the New Haven School in the first place. Educated in the public school system of Philadelphia, he went on to earn his bachelor’s degree at Johns Hopkins University in 1960, where he focused his studies on philosophy, and his bachelor of laws degree, summa cum laude, at Hebrew University in Jerusalem in 1963. In the same year, he received a diploma in the study of comparative law in Strasbourg, France. Also in the same year, he entered the Yale Law School, where he not only earned his LL.M., in 1964, but also his J.S.D., in record time, in 1965. After a research stay in the Netherlands on a Fulbright scholarship, he joined the faculty of the Yale Law School in 1969. From 1982 to 1998, he held the Wesley N. Hohfeld Professor of Jurisprudence Chair, and he now, appropriately, holds the Myres S. McDougal Professorship of International Law. He has taught, among other subjects, jurisprudence, international law, development, arbitration, and national security law to generations of students. The Yale Law School is also, of course, where Reisman met the two kindred souls from whom he learned so much and with whom he would join in the elaboration and application of the New Haven School. Beginning in the 1930s, McDougal, a classically trained scholar fluent in Latin and Greek who turned to international law after beginning his career in the legal academy as a teacher of property law, had joined forces with Lasswell, a pathbreaking social psychologist and political scientist. Throughout the 1930s, 1940s, and 1950s, the two intellectual giants, drawing on, but also augmenting and refining, the insights of the American Legal Realists,12 worked together to develop the contours of a revolutionary new theory about (rather than of) law, which they saw as a continuing process of authoritative and controlling decision. McDougal and Lasswell sought to employ every available source of knowledge and technique of inquiry to analyze discrete societal problems, as well as the past legal solutions to those problems—all, however, with a view, not to the past, but to the future. At a high level of abstraction, their objective was nothing less than to establish the basic principles of a legal order, both local and global in its reach, that would ideally enable maximum access by all to all things humans value. In the service of this goal, they combined social science and law and developed policy recommendations in the common interest. Yet it was Michael Reisman, in collaboration with McDougal (affectionately known to his students and colleagues as “Mac”) and Lasswell, who demonstrated the full potential of the New Haven School’s methodology. With Mac and Harold, Reisman clarified and deepened the School’s understanding of the various conceptual tools that would be needed to maximize the potential of a configurative jurisprudence. Several seminal articles immediately come to mind in this regard: The World

12

See W. Michael Reisman, Theory About Law: Jurisprudence for a Free Society, 108 Yale L.J. 935, 936-37 (1999).

Introduction

Constitutive Process of Authoritative Decision (1967);13 Theories About International Law: Prologue to a Configurative Jurisprudence (1968);14 and The Intelligence Function and World Public Order,15 all coauthored with McDougal and Lasswell. Other crucial contributions include A Theory About Law from the Policy Perspective (1976);16 Myth System and Operational Code (1977);17 The Prescribing Function in World Constitutive Process: How International Law Is Made (1981, with McDougal);18 International Law in Policy-Oriented Perspective (1983, with McDougal);19 The World Power Process of Effective Power: The Global War System (1985, with McDougal and Andrew R. Willard);20 The World Community: A Planetary Social Process (1988, with McDougal and Willard);21 Theory About Law: The New Haven School of Jurisprudence (1991);22 and A Jurisprudence From the Perspective of the “Political Superior” (1996).23 Reisman’s own way of framing the New Haven School in precise analytical and prescriptive terms—a “nutshell” of a quite challenging kind—can be found in two key presentations that he delivered to audiences of the American Society of International Law: International Law-Making: A Process of Communication (1981),24 and The View

13 14 15 16 17 18 19

20

21 22 23 24

Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. Legal Educ. 253 (1967). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188 (1967). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The Intelligence Function and World Public Order, 46 Temp. L.Q. 365 (1973). W. Michael Reisman, A Theory of about Law from the Policy Perspective, in Law and Policy 79 (David N. Weisstub ed., 1976). W. Michael Reisman, Myth System and Operational Code, 3 Yale Stud. World Pub. Ord. 230 (1977). Myres S. McDougal & W. Michael Reisman, The Prescribing Function in World Constitutive Process: How International Law is Made, 6 Yale Stud. World Pub. Ord. 249 (1981). Myres S. McDougal & W. Michael Reisman, International Law in Policy-Oriented Perspective, in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Ronald St. J. MacDonald & Douglas Johnston eds., 1983). Myres S. McDougal et al., The World Power Process of Effective Power: The Global War System, in Power and Policy in Quest of Law (Myres S. McDougal & W. Michael Reisman eds., 1985). Myres S. McDougal et al., The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807 (1988). W. Michael Reisman, Theory About Law: The New Haven School of Jurisprudence, 1989/90 Wissenschaftskolleg Jahrbuch 228 (1991). W. Michael Reisman, A Jurisprudence from the Perspective of the “Political Superior,” 23 N. Ky. L. Rev. 605 (1996). W. Michael Reisman, International Law-Making: A Process of Communication, 75 Am. Soc’y Int’l L. Proc. 101 (1981).

xix

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xx

from the New Haven School of International Law (1992).25 They remain reliable reference points for those who seek a short entrée into a jurisprudential theory that has developed, by necessity, its own meta-language—a lexicon that was designed to meet the needs of the intellectual framework’s integrated functions of analyzing and solving problems, as well as to transcend the overly narrow and constrained terminologies inherited from the individual disciplines of law, science, and policy that the New Haven School combines. A more recent version within this class of writings is The New Haven School: A Brief Introduction (2007, with Siegfried Wiessner and Willard).26 And an ambitious application of the theory for teaching the New Haven School’s approach to international law is found in Reisman’s casebook International Law in Contemporary Perspective, first published in 1981 (with McDougal) and thoroughly revamped in 2004 (with Mahnoush H. Arsanjani, Wiessner, and Gayl Westerman).27 Reisman, the “Dean of the New Haven School,” as Harold Hongju Koh, until recently the Dean of Yale Law School, fondly and appropriately denominates Reisman,28 has also added distinct innovations to the School’s approach. One is the genre of incident studies, as set forth in a coedited volume of such studies, International Incidents: The Law that Counts in World Politics (1988).29 Another is Reisman’s fascinating study of microlegal systems in Law in Brief Encounters (1999).30 Still another contribution, a vignette among a corpus of writings replete with original ideas, is his 1973 article Private Armies in a Global War System: Prologue to Decision,31 which offers insights that remain, some thirty-six years later, still fresh and relevant in analyzing and responding to the challenge of contemporary international terrorism. Reisman’s most recent, though by no means his final, comprehensive contribution to the New Haven School’s jurisprudence consists in his 2007 lectures, the general course in public international law, delivered at the Hague Academy of International Law. The course lectures will shortly be published, as revised and edited, under the title International Law in the 21st Century: The Quest for World Order and Human Dignity. Add to the foregoing Reisman’s diverse contributions analyzing and suggesting solutions to a host of concrete problems in international law and, in all, Reisman has, at the time of this writing, published 26 books and 282 articles—and the list keeps growing. All of his work is interesting, not only because it is a delight to read (he is a 25 26 27 28 29 30 31

W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118 (1992). W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575 (2007). W. Michael Reisman et al., International Law in Contemporary Perspective (2d ed. 2004). Harold Hongju Koh, Michael Reisman, Dean of the New Haven School of International Law, infra at 13. International Incidents: The Law that Counts in World Politics (W. Michael Reisman & Andrew R. Willard eds., 1988). Reisman, supra note 5. W. Michael Reisman, Private Armies in a Global War System: Prologue to Decision, 14 Va. J. Int’l L. 1 (1973).

Introduction

master of language, English being only one of many), but because, as Judge Higgins observes, each of his analyses is unique.32 While the fundamental normative goals remain constant, their realization in widely divergent contexts inevitably leads to diverse and creative strategies and proposals. Comprehensive inquiries, which include the scanning of all of the factors and participants relevant to particular problems, inevitably beget equally, if not more, complex and multifaceted answers. True to his jurisprudence, Michael Reisman moves frequently and easily between the contemplative and active roles. He participates in the political life of the United States and the world, as a counselor, a decisionmaker, or both. While perhaps in a more understated, but no less effective, way than McDougal, Reisman has always sought to contribute actively to a world public order of human dignity. He is a longstanding member of the Advisory Committee on Public International Law of the U.S. Department of State, serves on the Board of Directors of the Foreign Policy Association, and participates actively as a member of the Council on Foreign Relations and the International Law Association. He has also testified before Congress and written numerous editorials for influential newspapers and magazines such as The New York Times and The Nation on topics as diverse as the status of Taiwan, humanitarian intervention, the closing of the Palestine Liberation Organization’s U.S. office, and the preemptive use of force. Michael Reisman’s main scholarly forum, however, has been and remains the American Journal of International Law, a “must read” for international lawyers and other foreign policy specialists. Since early in his career, starting with his 1968 article Rhodesia and the United Nations: The Lawfulness of International Concern,33 he has routinely contributed to the Journal’s pages, and from 1998 to 2003, he served, with the late Jonathan I. Charney, as its Editor-in-Chief. During Reisman’s tenure, the quality of the Journal’s articles increased, and he saw to it that the Journal published timely work on the most significant international issues of the day. Reisman has also rendered distinguished service as Vice-President and Honorary Vice-President of the American Society of International Law. Finally, by his own contributions and otherwise, he has in recent years helped several newer journals on the other side of the ocean: the European Journal of International Law, the Indian Journal of International Law, and the African Human Rights Law Journal. In substance, some of Reisman’s most well-known contributions have been in the fields of international human rights and the use of force. In fact, it is his focus on human rights—a natural consequence of his promotion of a world public order of human dignity—that has deeply influenced, if not determined, his position (often critically received at the time) with regard to many of the most controversial situations involving the use of force over the years. Subject to appropriate conditions or limitations, he has argued in favor of international legal authority to use force to halt massive violations of fundamental human rights and to restore democratically-elected regimes. But he has never proposed a “hair trigger” for the use of force. He has

32 33

Rosalyn Higgins, An Appreciation, infra at 3. Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 Am. J. Int’l L. 1 (1968).

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stressed the risks of the idea of preemptive self-defense.34 And he has argued strongly against using force only to change a regime.35 Among the common threads in his writings on force is the goal of protecting human beings and their rights and opportunities for self-realization. He has advocated a duty to compensate innocent victims of collateral damage caused by armed conflict or by an accident during an otherwise legal military training operation,36 suggested constraints on economic sanctions that mirror the necessity, proportionality and discrimination requirements for force,37 and denied that terrorism (or any other) threat justifies an exception to international law’s absolute ban on torture, in time of war and peace alike.38 Beyond promoting human dignity through his scholarship and academic work, he has worked to promote it in the field. One example is particularly illustrative: During the era of apartheid in South Africa, Reisman was invited to teach a course on human rights for activists in South Africa. While there, he decided to create a foundation to integrate the South African bar by facilitating the entry of black African law students into the ranks of barristers and solicitors in South Africa. Although black law students were allowed to get law degrees at the time, almost none of them were able to find pupilages in white firms, a step necessary for entering the bar. The foundation raised money in the United States to provide internships for students and also urged law firms in Johannesburg and Pretoria to have them accepted as interns at the foundation’s expense. For the first few years, the selection committee was at Yale.39 On a much larger platform, Reisman brought about changes in the service of human dignity through confronting some of the toughest human rights issues in the Western hemisphere—as a member, beginning in 1990, and then as Chairman, from 1994 to 1995, of the Inter-American Commission on Human Rights. By all accounts, his work for the Commission was sterling and exemplary. He undertook site visits to Haiti in 1990 and 1994, at times of the highest tension; to Peru in 1990, 1992, and 1994, while it still remained in the grip of an autocratic regime; to war-torn Colombia in 1991 and 1993; to Guatemala, Ecuador, and the Bahamas in 1994; and to Jamaica in 1995. The atrocities that he witnessed on some of these missions, as horrible as they were, only strengthened his resolve to address the plight of the oppressed and the exploited. Whenever possible, he bravely and directly confronted the elites responsible for these actions. In 1995, his particular concern for indigenous peoples—for 34 35 36

37 38 39

See W. Michael Reisman & Andrea Armstrong, The Past and Future of the Claim of Preemptive Self-defense, 100 Am. J. Int’l L. 525 (2006). See W. Michael Reisman, Why Regime Change Is (Almost Always) a Bad Idea, 98 Am. J. Int’l L. 516 (2004). See W. Michael Reisman, The Lessons of Qana, 22 Yale J. Int’l L. 381, 397-98 (1997); W. Michael Reisman & Robert D. Sloane, The Incident at Cavalese and Strategic Compensation, 94 Am. J. Int’l L. 505 (2000). See Reisman & Stevick, supra note 3. See W. Michael Reisman, Holding the Center of the Law of Armed Conflict, 100 Am. J. Int’l L. 852 (2006). See W. Michael Reisman, Obviating Affirmative Action, in 1 Discrimination and the Law in South Africa 256 (Christoff Heyns ed., 1994).

Introduction

both their physical and cultural survival—led him to finalize the Proposed American Declaration on the Rights of Indigenous Peoples.40 For Reisman, a sustainable peace in any community is possible only if the human beings comprising that community are treated with decency and respect. A peacemaker by nature—a quality demonstrated, among many other ways, by his many attempts to elaborate fair and durable solutions to the daunting problems in the Middle East—he has been trusted by many to deal effectively with some of the most intractable conflicts. Recently, for example, he served as an arbitrator on the Eritrea-Ethiopia Boundary Commission (2001-2007) and as a member of the Sudan Boundary Tribunal (2008-2009). His most recent book is tentatively entitled Stopping Wars and Making Peace: Studies in International Intervention (2009, with Kristen Eichensehr).41 Most of his vita activa in dispute settlement, however, has been and continues to be in the field of international arbitration, where he has served as arbitrator and counsel in a number of important cases—for example, as President of the Arbitration Tribunal of the Bank for International Settlements. He has also been at the vanguard of the development over the past two decades of international investor-state dispute resolution. Reisman has served, and continues to serve, as either an expert witness or an arbitrator in contemporary international investment disputes between foreign investors and host states. His vita contemplativa before entering this realm makes him perhaps more prepared than anyone else to address the novel questions raised by this developing body of jurisprudence. Interested in international dispute settlement since the beginning of his career, he wrote his J.S.D. thesis on the topic, published in 1971 as the now classic Nullity and Revision: The Review and Enforcement of International Judgments and Awards.42 Twenty years later, he wrote an equally influential work entitled Systems of Control in International Adjudication and Arbitration: Breakdown and Repair.43 In 2005, he coauthored, with James Crawford and Doak Bishop, one of the first casebooks on international investor-state arbitration, which, in comparative terms, has only recently become a specialized field of international law.44 Characteristically, Michael Reisman is already one of its experts. Revered around the world, Reisman has been a visiting professor in Tokyo, Hong Kong, Berlin, Basel, Paris, and Geneva. In 2004, the American Society of Interna40 41

42 43 44

Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. C.H.R., 1333d Sess., OEA/Ser.L/V/II.95, doc. 7 (1997). The theme for the book derives from his 1998 Eberhard Deutsch Lecture of the same name. See W. Michael Reisman, Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict Termination in Contemporary World Politics, 6 Tul. J. Int’l & Comp. L. 5 (1998). W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (1971). W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (1992). Foreign Investment Disputes: Cases, Materials and Commentary (R. Doak Bishop, James Crawford & W. Michael Reisman eds., 2005).

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tional Law honored him with its highest award, the Manley O. Hudson Medal, and in 1999, he was elected to membership in the Institut de Droit International, the most rarefied circle of international lawyers. Despite his remarkable achievements, Michael Reisman is a man of exceptional modesty and uncommon generosity. His dedication to his students is legendary. Rather than simply acknowledge the help of his research assistants, for example, he often shares the credit with them as coauthors. Twice, in fact, he has even published books comprised of the best papers written by his students, united by a common theme.45 He has helped each of us in our careers and professional endeavors,46 and beyond the realm of the academy, become a close personal friend. His loyalty and support are second to none.

* This book is a token of our gratitude to Michael Reisman and a reflection of the high esteem in which we, like so many others, hold him. Indeed, whatever their view about the New Haven School or Reisman’s position on particular international legal issues, international lawyers, scholars, and others who know him respect his integrity, intellectual prowess and depth, and strength of character. It is no coincidence that he has been honored in this volume by contributions written by peers of many different jurisprudential, political, and ideological stripes. To Heraclitus is attributed the statement that all life is in a state of continuing flux. The same may be said of the law. Michael Reisman shows us how not to go with the flow but to direct and to lead it—always reflectively, mindful of the past, but looking to the future. In the final analysis, his direction is forward, anticipating changes and crafting legal arrangements and decisions. In this way, he has and continues to fulfill what McDougal described as the “highest calling of all”: “to enhance human dignity in appropriate systems of public order.”47 It is impossible to do justice to the manifold contributions that Reisman has made, and continues to make, to international law and its subjects. What he wrote of McDougal’s work applies equally to his own: it “has pervaded professional consciousness.”48 Our hope is that this book will help to convey the appreciation of all those, like ourselves, who have had the privilege to know and 45

46

47

48

The Reasons Requirement in International Investment Arbitration: Critical Case Studies (Guillermo Aguilar Alvarez & W. Michael Reisman eds., 2008); International Incidents, supra note 29. For example, he was the key mentor for distinctive law programs such as the City University of Hong Kong’s J.D. Program and St. Thomas University’s LL.M. and J.S.D. Program in Intercultural Human Rights. Myres S. McDougal, Preface to Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society, at vi (Student ed. 1997), quoted in Reisman, supra note12, at 939. Reisman, supra note 47, at 939.

Introduction

to learn from Michael Reisman—or to benefit, in ways they may not even be aware of, from his tireless work in the service of a world public order of human dignity. The Editors

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W. Michael Reisman Publications

Books 1.

The Art of the Possible: Diplomatic Alternatives in the Middle East (Princeton University Press, 1970).

2.

Nullity and Revision: The Review and Enforcement of International Judgments and Awards (Yale University Press, 1971).

3.

Puerto Rico and the International Process: New Roles in Association (American Society of International Law Studies in Transnational Legal Policy, West Publishing Co., 1973); reprinted in 11 Revista Jurídica de la Universidad Interamericana de Puerto Rico (1977).

4.

Toward World Order and Human Dignity: Essays in Honor of Myres S. McDougal (Free Press, 1976) (co-edited with Burns Weston).

5.

Folded Lies: Bribery, Crusades, and Reforms (Free Press, 1979). Spanish Translation, ¿Remedios contra la corrupción? (Cohecho, cruzadas y reformas) (Fondo de Cultura Económica, Mexico, 1981); republished in the same publisher’s series Biblioteca Joven, 1984. Japanese Translation, Iwanami Shoten, Tokyo, 1983. Russian Translation, Moscow, 1988.

6.

International Law in Contemporary Perspective: The Public Order of the World Community (Foundation Press, 1981) (co-edited with Myres S. McDougal).

7.

International Law Essays (Foundation Press, 1981) (co-edited with Myres S. McDougal).

8.

Power and Policy in Quest of Law: Essays in Honor of Eugene Victor Rostow (Martinus Nijhoff, 1985) (co-edited with Myres S. McDougal).

W. Michael Reisman: Publications

9. xxviii

Jurisprudence: Understanding and Shaping Law (New Haven Press, 1987) (co-edited with Aaron M. Schreiber).

10. International Incidents: The Law that Counts in World Politics (Princeton University Press, 1988) (co-edited with Andrew R. Willard). 11.

Regulating Covert Action: Practices, Contexts and Policies of Covert Coercion Abroad in International and American Law (Yale University Press, 1992) (with James E. Baker). Japanese Translation, 2000.

12. Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (Duke University Press, 1992). 13. Straight Baselines in International Maritime Boundary Delimitation (St. Martin’s Press, 1992) (with Gayl Westerman). 14. The Laws of War: A Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict (Vintage Press, 1994) (co-edited with Chris T. Antoniou). 15. International Commercial Arbitration: Cases, Materials and Notes on the Resolution of International Business Disputes (Foundation Press, 1997) (co-edited with W. Laurence Craig, William Park & Jan Paulsson). 16. The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication, 258 Recueil des Cours 9 (1996). 17. Law in Brief Encounters (Yale University Press, 1999). Chinese Translation, Shenghuozhongde Weiguan Falu [Microscopic Laws in Life] (Shangzhou Chubanshe, Taipei, 2001). 18. Jurisdiction in International Law (Ashgate, 1999). 19. International Law in Contemporary Perspective (Foundation Press, 2d ed. 2004) (co-edited with Mahnoush H. Arsanjani, Siegfried Wiessner & Gayl S. Westerman). 20. Foreign Investment Disputes: Cases Materials and Commentary (Kluwer Law International, 2005) (co-edited with R. Doak Bishop & James Crawford). 21. Understanding and Shaping International Law: Essays of W. Michael Reisman (Guojifa: Lingwu Yu Goujian) (Law Press – China, 2007).

W. Michael Reisman: Publications

22. The Reasons Requirement in International Investment Arbitration: Critical Case Studies (Martinus Nijhoff Publishers, 2008) (co-edited with Guillermo Aguilar Alvarez). 23. Stopping Wars and Making Peace: Studies in International Intervention (Martinus Nijhoff Publishers, 2009) (co-edited with Kristen Eichensehr). Articles and Shorter Works 1.

“The Changing Structure of International Law”: Unchanging Structure for Inquiry, 65 Columbia Law Review 810 (1965) (with Myres S. McDougal).

2.

The Role of the Economic Agencies in the Enforcement of International Judgments and Awards: A Functional Approach, 19 International Organization 929 (1965).

3.

Address in De Zaak Zuid-West Afrika: Het Vonnis Van Het Internationaal Gerechtshof Critisch Bezein 52-59, 61 (1966).

4.

Revision of the South West Africa Cases, 7 Virginia Journal of International Law 1 (1966).

5.

The World Constitutive Process of Authoritative Decision (pts. 1 & 2), 19 Journal of Legal Education 253, 403 (1967) (with Myres S. McDougal & Harold D. Lasswell); reprinted in 1 The Future of the International Legal Order (Cyril E. Black & Richard A. Falk eds., 1968), and International Law Essays (Myres S. McDougal & W. Michael Reisman eds., 1981).

6.

Rhodesia and the United Nations: The Lawfulness of International Concern, 62 American Journal of International Law 1 (1968) (with Myres S. McDougal); reprinted in 2 International Lawyer 721 (1968).

7.

Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Virginia Journal of International Law 188 (1968) (with Myres S. McDougal & Harold D. Lasswell); reprinted in International Law Essays (Myres S. McDougal & W. Michael Reisman eds., 1981).

8.

The Enforcement of International Judgments, 62 Proceedings of the American Society of International Law 13 (1968).

9.

Memorandum upon Humanitarian Intervention (1968) (with Myres S. McDougal), circulated privately and as a United Nations Petition Document; reprinted as Humanitarian Intervention to Protect the Ibos, in Humanitarian Intervention and the United Nations 167 (Richard B. Lillich ed., 1973).

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10. The Collection and Distribution of Current Materials for Teaching International Law, 21 Journal of Legal Education 80 (1968). 11.

Facets of International Arbitration, 20 Syracuse Law Review 166 (1968); reprinted as The Multifaceted Phenomenon of International Arbitration, 24 Arbitration Journal 69 (1969).

12. The Enforcement of International Judgments and Awards, 63 American Journal of International Law 1 (1969). 13. The Continuing Validity of Humanitarian Intervention, 3 International Lawyer 435 (1969) (with Myres S. McDougal). 14. Ratification of the Genocide Convention, Proceedings of the Association of American Law Schools (1969). 15. Sanctions and Enforcement, in 3 The Future of the International Legal Order 273 (Cyril E. Black & Richard A. Falk eds., 1971); reprinted in International Law Essays (Myres S. McDougal & W. Michael Reisman eds., 1981). 16. International Non-Liquet: Recrudescence and Transformation, 3 International Lawyer 770 (1969). 17. Procedures for Controlling Unilateral Treaty Termination, 63 American Journal of International Law 544 (1969). 18. Rapporteur’s Report, Working Group on Scientific Knowledge, Education and Communication, International Joint Conference on Environment and Society in Transition, organized by the American Geographical Society and the American Division of the World Academy of Art and Science, 1970, published in 184 Annals of the New York Academy of Sciences 595 (1971). 19. Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination, East African Journal of Law and Development (1971); reprinted in 1 Denver Journal of International Law and Policy 29 (1971). 20. Polaroid Power: Taxing Business for Human Rights, Foreign Policy, Fall, 1971, at 101. 21. Diplomatic Alternatives in the Middle East: From Obsolescent Goals to a New Program, Testimony in Hearings Before the Subcommittee on the Near East of the Committee on Foreign Affairs, House of Representatives, 92d Cong., 2d Session, February 22, 1972, p. 8.

W. Michael Reisman: Publications

22. Who Owns Taiwan, New Republic, April 2, 1972, at 21. 23. Who Owns Taiwan: A Search for International Title, 81 Yale Law Journal 599 (1972) (with Lung-chu Chen); reprinted in Taiwan’s Future (Yung-Hwan Jo ed., 1974). 24. The Status of Taiwan: International Law and International Implications, Testimony in Hearings Before the Subcommittee on Asian and Pacific Affairs of the Committee on Foreign Affairs, House of Representatives, 92d Congress, 2d Session, May 3, 1972. 25. The Intelligence Function and World Public Order, 46 Temple Law Quarterly 365 (1973) (with Myres S. McDougal & Harold D. Lasswell); reprinted in International Law Essays (Myres S. McDougal & W. Michael Reisman eds.,1981). 26. Private Armies in a Global War System: Prologue for Decision, 14 Virginia Journal of International Law 1 (1973); reprinted in Law and Civil War in the Modern World 252 (John Norton Moore ed., 1974); and International Law Essays (Myres S. McDougal & W. Michael Reisman eds.,1981). 27. Making International Humanitarian Law Effective: The Case for Civic Initiatives, in The United Nations: A Reassessment 31 (John M. Paxman & George T. Boggs eds.,1973). 28. Miselection: Responses to an Insider Coup, The Nation, August 13, 1973. 29. Middle East Disengagement: More Substitutes for Peace, The Nation, March 9, 1974, at 294. 30. Compacts: A Study of Interstate Agreements in the American Federal System, 27 Rutgers Law Review 70 (1973) (with Gary Simson); reprinted in Law in the United States of America in Social and Technological Revolution 459 (John N. Hazard & Wenceslas J. Wagner eds., 1974). 31. Accelerating Advisory Opinions: Critique and Proposal, 68 American Journal of International Law 648 (1974). 32. Living with the Majority, The Nation, February 1, 1975, at 102. 33. The Third World’s Fading Dream, The Nation, June 12, 1976, at 716. 34. A Theory About Law from the Policy Perspective, in Law and Policy (David N. Weisstub ed., 1976).

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35. Recognition and Social Change, in Toward World Order and Human Dignity: Essays in Honor of Myres S. McDougal (Burns Weston & W. Michael Reisman eds., 1976) (with Eisuke Suzuki). 36. Big Sticks and Big Mouths, The Nation, June 19, 1976, at 742. 37. The Danger of Abandoning Taiwan, New York Times, August 28, 1976, at 15. 38. Theory of Federal Preemption – Legal Grounding and Application, Anti-Boycott Bulletin (July 1977). 39. Why We Can’t Cry “Foul,” The Nation, January 8, 1977, at 6. 40. African Imperialism, 70 American Journal of International Law 801 (1976). 41. Myth System and Operational Code, 3 Yale Studies in World Public Order 230 (1977). 42. Foreign Affairs and the Several States: Outline of a Theory for Decision, 71 Proceedings of the American Society of International Law 182 (1977). 43. The Pragmatism of Human Rights, The Nation, May 7, 1977, at 554; reprinted in Yale Law Report (Fall 1977). 44. Theory of Federal Preemption – Legal Grounding and Application, Anti-Boycott Bulletin, July, 1977, at 121. 45. On Playing Chinacard, Wall Street Journal, August 25, 1978. 46. The Case of Western Somaliland, 1 Horn of Africa 13 (1978). 47. Playing Chinacard, 13 Yale Law Report (Winter 1978-1979). 48. Campaigns Against Bribery, Yale Alumni Magazine, at 17 (February 1979). 49. Views on Recognizing the Peoples Republic of China, Yale Alumni Magazine, at 16 (March 1979). 50. Treaty Termination in American Constitutional Law, Testimony to the Senate Committee on Foreign Relations, in Treaty Termination, Hearings Before the Committee on Foreign Relations, United States Senate, 96th Congress, 1st Session, April 11, 1979, at 387.

W. Michael Reisman: Publications

51. Who Can Terminate Mutual Defense Treaties (pts. 1 & 2), National Law Journal, May 21, 1979, National Law Journal, May 28, 1979 (with Myres S. McDougal). 52. In Memoriam: Harold D. Lasswell, 4 Yale Studies in World Public Order 154 (1978). 53. Harold D. Lasswell, 73 American Journal of International Law 55 (1979) (with Myres S. McDougal). 54. Motion and Brief Amici Curiae in support of petition for certiorari in Goldwater v. Carter, December 6, 1979 (with Myres S. McDougal). 55. The Regime of Straits and National Security: An Appraisal of International Lawmaking, 74 American Journal of International Law 48 (1980). 56. Termination of the U.S.S.R.’s Treaty Right of Intervention in Iran, 74 American Journal of International Law 144 (1980). 57. Myres S. McDougal, in 18 International Encyclopedia of the Social Sciences 479 (1980). 58. The Legal Effect of Vetoed Resolutions, 74 American Journal of International Law 904 (1980). 59. The Case of the Non-Permanent Vacancy, 74 American Journal of International Law 907 (1980). 60. Humanitarian Intervention, The Nation, May 24, 1980, at 612. 61. National Development as International Development, foreword to Noel V. Lateef, Crisis in the Sahel: A Case Study in Development Cooperation (1980). 62. The Prescribing Function in World Constitutive Process: How International Law is Made, 6 Yale Studies in World Public Order 249 (1981) (with Myres S. McDougal). 63. International Law-making: A Process of Communication, Lasswell Memorial Lecture, 75 American Society of International Law Proceedings 101 (1981). 64. Inadequacies of the Straits’ Passage Regime in the LOS Draft, 5 Marine Policy 276 (1981).

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65. Key International Legal Issues with Regard to Ocean Thermal Energy Conversion Systems, 11 California Western International Law Journal 425 (1981). 66. International Law and the Israeli Occupation, The Nation, December 5, 1981, at 616. 67. General Report, International Law and Organization for a New World Order: The Uppsala Model, in The Spirit of Uppsala (Atle Grahl-Madsen & Jiri Toman eds., 1984). 68. The Golan Gambit, Miami Herald, December 20, 1981. 69. Critical Defense Zones and International Law: The Reagan Codicil, 76 American Journal of International Law 589 (1982). 70. The Plaintiff ’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication, 76 American Journal of International Law 739 (1982) (with Eric Freedman). 71. The First Casualty, The Nation, May 15, 1982, at 578. 72. The Individual Under African Law in Comprehensive Context, in The Individual Under African Law 9 (Peter Nanyenya Takirambudde ed., 1982). 73. Toward a General Theory About African Law, Social Change and Development, in The Individual Under African Law 83 (Peter Nanyenya Takirambudde ed., 1982). 74. Somali Self-Determination in the Horn: Legal Perspectives and Implications for Social and Political Engineering, in Nationalism and Self-Determination on the Horn of Africa 151 (I.M. Lewis ed.,1983). 75. Jeffrey Edwin Rockwell, 9 Brooklyn Journal of International Law 1 (1983). 76. Looking, Staring and Glaring: Microlegal Systems and World Public Order, McDougal Lecture, 12 Denver Journal of International Law and Policy 165 (1983). 77. The Tormented Conscience: Applying and Appraising Unauthorized Coercion, 32 Emory Law Journal 499 (1983). 78. The Struggle for the Falklands, 93 Yale Law Journal 287 (1983).

W. Michael Reisman: Publications

79. Intervention Treaties in International Law, in International Violence 213 (Tunde Adeniran & Yonah Alexander eds., 1983). 80. Nuclear Weapons in International Law, 4 New York Law School Journal of International and Comparative Law 339 (1983); reprinted, in slightly amended form, as Deterrence and International Law, in Nuclear Weapons and Law 129 (Arthur Selwyn Miller & Martin Feinrider eds., 1984). 81. International Law in Policy-Oriented Perspective, in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory 103 (R. St. J. Macdonald & Douglas M. Johnston eds.,1983) (with Myres S. McDougal). 82. Problems of the Law of Armed Conflict in Lebanon, 77 Proceedings of the American Society of International Law 236 (1983). 83. Coercion and Self-Determination: Construing Charter Article 2(4), 78 American Journal of International Law 642 (1984). 84. Reporting the Facts as They Are Not Known: Media Responsibility in Concealed Human Rights Violations, 78 American Journal of International Law 650 (1984). 85. Article 2(4): The Use of Force in Contemporary International Law, 78 Proceedings of the American Society of International Law 74 (1984). 86. International Incidents: Introduction to a New Genre in the Study of International Law, 10 Yale Journal of International Law 1 (1984). 87. Teaching International Law in the ‘80s, 31 Yale Law Report 29 (Spring 1985); reprinted in 20 International Lawyer 987 (1986). 88. The World Process of Effective Power: The Global War System, in Power and Policy in Quest of Law 353 (Myres S. McDougal & W. Michael Reisman eds., 1985) (with Myres S. McDougal & Andrew R. Willard). 89. Criteria for the Lawful Use of Force in International Law, 10 Yale Journal of International Law 279 (1985). 90. Jurisdiction in Human Rights Cases: Is the Tel-Oren Case a Step Backward?, 79 Proceedings of the American Society of International Law 368 (1985). 91. McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 Proceedings of the American Society of International Law 273 (1985).

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92. Lining Up: The Microlegal System of Queues, 54 University of Cincinnati Law Review 417 (1985). 93. Termination of the United States Declaration Under Article 36(2) of the Statute of the International Court, in The United States and the Compulsory Jurisdiction of the International Court of Justice 71 (Anthony Clark Arend ed., 1986). 94. Has the International Court Exceeded Its Jurisdiction?, 80 American Journal of International Law 128 (1986). 95. Should We Just Write Off Hostages?, New York Times, December 3, 1986, at A31. 96. The Other Shoe Falls: The Future of Article 36(1) Jurisdiction in the Light of Nicaragua, 81 American Journal of International Law 168 (1987). 97. U.S. Gain from an Iranian Victory, Wall Street Journal, February 19, 1987, at 26. 98. Center and Periphery: Allocating Foreign Affairs and International Relations Competence in the American Federal System, 21 Revista Jurídica de la Universidad Interamericana de Puerto Rico 535 (1987). 99. Foreword to Dinesh Khosla, Myth and Reality of the Protection of Civil Rights Law: A Case Study of Untouchability in Rural India (1987) (with Myres S. McDougal). 100. Through or Despite Governments: Differentiated Responsibilities in Human Rights Programs, 72 Iowa Law Review 391 (1987). 101. The Cult of Custom in the Late 20th Century, 17 California Western International Law Journal 133 (1987). 102. Designing Curricula: Making Legal Education Continuously Effective and Relevant for the 21st Century, 17 Cumberland Law Review 831 (1987); reprinted as El Diseño del Plan de Estudios: Para que la Enseñanza del Derecho Continúe Siendo Efectiva y Relevante en el Siglo XXI, in La Enseñanza del Derecho y el Ejercicio de la Abogacia 105 (Martin F. Böhmer ed., 1999). 103. America Sails Into Difficult Gulf Straits While Losing Track of Its Own Interests, Los Angeles Times, August 2, 1987. 104. Kuwait Takes Advantage of U.S. Paranoia About Soviet Expansion, Hartford Courant, August 4, 1987.

W. Michael Reisman: Publications

105. The Resistance in Afghanistan Is Engaged in a War of National Liberation, 81 American Journal of International Law 906 (1987). 106. Remarks at a conference panel on the subject of The Formulation of General International Law: How Is It Generated? How Is the Existence of Its Norms Ascertained?, 2 American University Journal of International Law and Policy 448 (1987). 107. Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, 13 Yale Journal of International Law 171 (1988). 108. Take It to Court, New York Times, March 16, 1988, at A22. 109. Even Though Defeated, Soviets Emerged Victor of Afghanistan War, Hartford Courant, April 24, 1988. 110. Genocide and the Soviet Occupation of Afghanistan, 1 The ISG Newsletter (Spring 1988) (with Charles H. Norchi). 111. Flashy, Shoddy Journalism Undermines Democracy, Hartford Courant, June 8, 1988. 112. Preliminary Notes for Discussion on the Establishment of a World-Museum (pt. 1), World Academy of Art and Science News, June 1988. 113. Silent World Fuels Growth of Chemical Arsenals, Los Angeles Times, August 24, 1988. 114. The World Community: A Planetary Social Process, 21 U.C. Davis Law Review 807 (1988) (with Myres S. McDougal and Andrew R. Willard). 115. Accord on Embassy Espionage Would Ease U.S.-Soviet Tensions, New Haven Register, September 11, 1988. 116. Which Law Applies to the Afghan Conflict?, 82 American Journal of International Law 459 (1988) (with James Silk). 117. American Human Rights Diplomacy: The Next Phase, 28 Virginia Journal of International Law (1988). 118. Preliminary Notes for Discussion on the Establishment of a World-Museum (pt. 2), World Academy of Art and Science News (November 1988).

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119. Straight Baselines in International Law: A Call for Reconsideration, 92 Proceedings of the American Society of International Law 260 (1988). 120. A Hard Look at Soft Law, 92 Proceedings of the American Society of International Law 373 (1988). 121. Rapping and Talking to the Boss: The Microlegal System of Two People Talking, Conflict and Integration: Comparative Law in the World Today (Institute of Comparative Law in Japan ed., 1989). 122. For a Permanent U.S.-Soviet Claims Commission, 83 American Journal of International Law 51 (1989). 123. Harnessing International Law to Restrain and Recapture Indigenous Spoliations, 83 American Journal of International Law 56 (1989). 124. Respecting One’s Own Jurisprudence: A Plea to the International Court of Justice, 83 American Journal of International Law 312 (1989). 125. Reflections on State Responsibility for Violations of Explicit Protectorate, Mandate, and Trusteeship Obligations, 10 Michigan Journal of International Law 231 (1989). 126. Holy Alliance Would Censor Civilization’s Symbols – and its Dynamism, Hartford Courant, April 23, 1989. 127. No Man’s Land: International Legal Regulation of Coercive Responses to Protracted and Low Level Conflict, 11 Houston Journal of International Law 317 (1989). 128. The Arafat Visa Affair: Exceeding the Bounds of Host-State Discretion, 83American Journal of International Law 519 (1989). 129. An International Farce: The Sad Case of the PLO Mission, 14 Yale Journal of International Law 412 (1989). 130. Apartheid’s Death: Reports are Greatly Exaggerated, Los Angeles Times, September 6, 1989. 131. War Powers: The Operational Code of Competence, 83 American Journal of International Law 777 (1989); reprinted in Foreign Affairs and the U.S. Constitution 68 (Louis Henkin, Michael J. Glennon & William D. Rogers eds., 1990).

W. Michael Reisman: Publications

132. The New International Holy Alliance and the Struggle to Appropriate and Censor General Cultural Symbols, 83 Proceedings of the American Society of International Law 435 (1989); reprinted as Who Controls Our Symbols?, Yale Law Report (Spring 1990). 133. Chemical Weapons: Designing Operable Systems for Enforcing Restraint, 83 Proceedings of the American Society of International Law 468 (1989). 134. The Breakdown of the Control Mechanism in ICSID Arbitration, 1989 Duke Law Journal 739. 135. International Law after the Cold War, 84 American Journal of International Law 859 (1990). 136. Sovereignty and Human Rights in Contemporary International Law, 84 American Journal of International Law 866 (1990). 137. Necessary and Proper: Executive Competence to Interpret Treaties, 15 Yale Journal of International Law 317 (1990). 138. Governments-in-Exile: Notes Toward a Theory of Formation and Operation, in Governments-in-Exile in Contemporary World Politics (Yossi Shain ed., 1991). 139. Some Lessons From Iraq: International Law and Democratic Politics, 16 Yale Journal of International Law 203 (1991). 140. Theory About Law: The New Haven School of Jurisprudence, Institute for Advanced Study, Berlin, Yearbook 1989/90. 141. Allocating Competences to Use Coercion in the Post-Cold War World: Practices, Conditions, and Prospects, in Law and Force in the New International Order 26 (Lori Fisler Damrosch & David J. Scheffer eds., 1991). 142. Application of Humanitarian Law in Noninternational Armed Conflicts, 85 Proceedings of the American Society of International Law 85 (1991). 143. Moving International Law from Theory to Practice: The Role of Military Manuals in Effectuating the Law of Armed Conflict, in The Law of Naval Operations 1 (U.S. Naval War College, International Law Studies Series No. 64, Horace B. Robertson, Jr. ed., 1991) (with William K. Lietzau). 144. Double Standards “Guide” the Vote, Los Angeles Times, January 17, 1992; reprinted as Human Rights in Taiwan, in The 1991 National Assembly Elec-

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tion in Taiwan: Reports by Observers from the United States of America (1992). 145. National Reports: United States of America, in International Law of Export Control: Jurisdictional Issues 163 (Karl M. Meessen ed., 1992) (with William Araiza). 146. Systemic Costs of Non-Compliance with International Law – Effects on the System and on Interstate Relations, in Contemporary International Law Issues: Sharing Pan-European and American Perspectives 71 (1992). 147. Repairing ICSID’s Control System: Some Comments on Aron Broches’ ‘Observations on the Finality of ICSID Awards,’ 7 ICSID Review 196 (1992). 148. Some Reflections on International Law and Assassination Under the Schmitt Formula, 17 Yale Journal of International Law 687 (1992). 149. My Self-Determination, Your Extinction, Los Angeles Times, August 12, 1992; reprinted as Too Bad If My Self-Determination Destroys You, International Herald Tribune, August 14, 1992; and Wenn aus Freiheit Vertreibung folgt, Die Zeit, November 6, 1992. 150. With Help, U.S. Can Avoid New Quagmires, Atlanta Journal, Atlanta Constitution, December 27, 1992. 151. International Election Observation, 4 Pace University Yearbook of International Law 1 (1992). 152. The Concept and Functions of Soft Law in International Politics, in 1 Essays in honour of Judge Taslim Olawale Elias 135 (Emmanuel G. Bello & Prince Bola A. Ajibola eds., 1992). 153. The View from the New Haven School of International Law, 86 American Society of International Law Proceedings 118 (1992). 154. New Scenarios of Threats to International Peace and Security: Developing Legal Capacities for Adequate Responses, in The Future of International Law Enforcement: New Scenarios – New Law? 13 (Jost Delbrück ed., 1993). 155. Critical Choices, paper prepared for The Push of Science and Technology, The Pull of Cultural Diversity and Human Values, conference co-sponsored by the World Academy of Art and Science, Georgetown University, April 4, 1993.

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156. Obviating Affirmative Action, 39 Yale Law Report (Spring 1993); reprinted in 1 Discrimination and the Law in South Africa 256 (Christof Heyns, Johann van der Westhuizen & Tshidi Mayimele-Hashatse eds., 1994). 157. The Constitutional Crisis in the United Nations, 87 American Journal of International Law 83 (1993), reprinted in The Development of the Role of the Security Council: Peace-Keeping and Peace-Building 399 (Reńe-Jean Dupuy ed., 1993). 158. The Constitutional Court and the Independence of the Judiciary, in Hungarian Constitutional Reform and the Rule of Law (Donald T. Fox & Andrea Bonime-Blanc eds., 1993). 159. Peacemaking, 18 Yale Journal of International Law 415 (1993). 160. Autonomy, Interdependence and Responsibility, 103 Yale Law Journal 401 (1993). 161. Preparing to Wage Peace: Toward the Creation of an International Peacemaking Command and Staff College, 88 American Journal of International Law 76 (1994). 162. Control Mechanisms in International Dispute Resolution, 2 United StatesMexico Law Journal 129 (1994). 163. Hachlata Mishpatit Ki-hachra-ah Chevratit [Legal Decision as Social Choice], 18 Eyunei Ha-Mishpat 611 (1994) (Isr.). 164. The Raid on Baghdad: Some Reflections on its Lawfulness and Implications, 5 European Journal of International Law 120 (1994). 165. Fact-Finding Initiatives for the Inter-American Court of Human Rights, Commemorative Edition of the 15th Anniversary of the Inter-American Court of Human Rights, San José, Costa Rica (November 1994). 166. Introductory Remarks to Symposium: Constitutionalism in the Post-Cold War World, 19 Yale Journal of International Law 189 (1994). 167. A Place For “All the Rest of Us”: Reinventing the General Assembly, in International Peace and Security: Proceedings of the 1994 Conference of the Canadian Council on International Law 33 (1994). 168. The Structural Imperatives of DRMs: Some Hypotheses and Their Applications, ABA Committee on International Trade Law and Canadian Law, International Dispute Resolution After NAFTA, April, 1994; reprinted as Contextual Impera-

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tives of Dispute Resolution Mechanisms: Some Hypotheses and Their Applications in the Uruguay Round and NAFTA, 29 Journal of World Trade 5 (June 1995) (with Mark Wiedman). 169. The Inter-American Commission on Human Rights, Conference on the InterAmerican Human Rights System: Defending Human Rights, 1959-1994, Regional Meeting of the American Society of International Law, American University (April 1994). 170. Amending the UN Charter: The Art of the Feasible, 88 Proceedings of the American Society of International Law 108 (1994). 171. Protecting Indigenous Rights in International Adjudication, 89 American Journal of International Law 350 (1995). 172. Haiti and the Validity of International Action, 89 American Journal of International Law 82 (1995). 173. Humanitarian Intervention and Fledgling Democracies, 18 Fordham International Law Journal 794 (1995). 174. Covert Action, 20 Yale Journal of International Law 419 (1995). 175. A Jurisprudence from the Perspective of the “Political Superior,” Harold J. Siebenthaler Lecture, 23 Northern Kentucky Law Review 605 (1996). 176. Creating, Adapting and Designing Dispute Resolution Mechanisms for the International Protection of Human Rights, Conference on the Implications of the Proliferation of International Adjudicatory Bodies for Dispute Resolution, Proceedings of a Forum Co-Sponsored by the American Society of International Law and the Graduate Institute of International Studies, Geneva, Switzerland, May 13, 1995, ASIL Bulletin No. 9. 177. Practical Matters for Consideration in the Establishment of a Regional Human Rights Mechanism: Lessons from the Inter-American Experience, 1 Saint LouisWarsaw Transatlantic Law Journal 89 (1995). 178. Institutions and Practices for Restoring and Maintaining Public Order, 6 Duke Journal of Comparative and International Law 175 (1995). 179. Designing Law Curricula for a Transnational Industrial and Science Based Civilization, 46 Journal of Legal Education 322 (1996).

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180. Assessing the Lawfulness of Non-military Enforcement: The Case of Economic Sanctions, 89 Proceedings of the American Society of International Law 350 (1996). 181. Tilting at Reality, 74 Texas Law Review 1261 (1996). 182. Human Rights Workers as Internationally Protected Persons, in The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of Other Vulnerable Groups, in Memory of Atle-Grahl Madsen 391 (Gudmundur Alfredsson & Peter Macalister-Smith eds., 1996). 183. On Africa, No Attractive Options for the World, International Herald Tribune, November 23-24, 1996, at 8. 184. International Law and the Inner Worlds of Others, 9 St. Thomas Law Review 25 (1996). 185. When Are Economic Sanctions Effective? Selected Theorems and Corollaries, 2 ILSA Journal of International and Comparative Law 587 (1996). 186. Legal Responses to Genocide and Other Massive Violations of Human Rights, 59 Law and Contemporary Problems 75 (Autumn 1996). 187. Redesigning the United Nations, 1 Singapore Journal of International and Comparative Law 1 (1997). 188. Legal Responses to Genocide and Other Massive Violations of Human Rights, prepared for delivery at the Meeting of Experts on Reining in Impunity for International Crimes and Serious Violations of Human Rights, U.S. Holocaust Memorial Museum (April 13, 1997). 189. Myres S. McDougal: Architect of a Jurisprudence for a Free Society, 66 Mississippi Law Journal 15 (1997). 190. The Lessons of Qana, 22 Yale Journal of International Law 381 (1997). 191. El Control y Vigilancia de Guardianes Corruptos: ¿Reformas Eficaces o Simples “Cruzadas” de Distracción?, 7 Revista de Derecho Público (1997) (Colom.). 192. Hollow Victory: Humanitarian Intervention and Protection of Minorities, 91 Proceedings of the American Society of International Law 431 (1997).

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193. Designing and Managing the Future of the State, 8 European Journal of International Law 409 (1997). 194. International Human Rights Law Bearing on Individual and Group Rights, Fiji Constitution Review Commission Research Papers, vol. 2 , p. 181 (1997). 195. The Sea Change from Caution to Openness, in The Enduring Importance for a Free Press of Article 19, Universal Declaration of Human Rights 35 (1998) (with Ralph Wilde). 196. The Quest for an International Liability Regime for the Protection of the Global Commons, in International Law: Theory and Practice: Essays in Honour of Eric Suy 469 (Karel Wellens ed., 1998) (with Mahnoush H. Arsanjani). 197. The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 European Journal of International Law 86 (1998) (with Douglas Stevick). 198. Stopping Wars and Making Peace: Reflections on the Ideology and Practice of Conflict Termination in Contemporary World Politics, 6 Tulane Journal of International and Comparative Law 5 (1998). 199. Freedom of Speech as a Matter Fundamental to All Human Rights. Why and What For?, in Freedom of Expression and Human Rights Protection 79 (Manfred Wichmann ed., 1998). 200. A Policy Science Approach for Designing the Future of Taiwan, 1 New Century Think Tank Forum 80 (1998) (in Taiwanese). 201. Myres Smith McDougal (1906-1998), 92 American Journal of International Law 729 (1998) (with Richard A. Falk, Rosalyn C. Higgins and Burns H. Weston). 202. Agora: Breard – The Facts, 92 American Journal of International Law 666 (1998) (with Jonathan I. Charney). 203. A World Contest for Teaching Phonetic Universality, in Toward Comparative Law in the 21st Century: the 50th anniversary of the Institute of Comparative Law in Japan, Chuo University, 1998, at 1135 (1998). 204. Private International Declaration Initiatives, La Déclaration Universelle des droits de l’homme 1948-98: Avenir d’un idéal commun. Actes du colloque des 14, 15 et 16 septembre 1998 à la Sorbonne 79 (1999)

W. Michael Reisman: Publications

205. Foreword: Developments in International Criminal Law, 93 American Journal of International Law 1 (1999) (with Jonathan I. Charney). 206. Theory About Law: Jurisprudence for a Free Society, 108 Yale Law Journal 935 (1999) (tribute to Myres S. McDougal). 207. Compensation for Human Rights Violations: The Practice of the Past Decade in the Americas, in State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights 63 (Albrecht Randelzhofer & Christian Tomuschat eds., 1999). 208. The Political Consequences of the General Assembly Advisory Opinion, in International Law, the International Court of Justice and Nuclear Weapons 473 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999). 209. The Government of the State of Eritrea and the Government of the Republic of Yemen. Award of the Arbitral Tribunal in the First Stage of the Proceedings, 93 American Journal of International Law 668 (1999). 210. Toward a Normative Theory of Differential Responsibility for International Security Functions: Responsibilities of Major Powers, in Japan and International Law Past, Present and Future: International Symposium to Mark the Centenary of the Japanese Association of International Law 43 (Nisuke Ando ed., 1999). 211. The United States and International Institutions, 41 Survival 62 (November 1999). 212. Kosovo’s Antinomies, 93 American Journal of International Law 860 (1999). 213. International Legal Responses to Terrorism, 22 Houston Journal of International Law 3 (1999). 214. Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 European Journal of International Law 3 (2000). 215. Sovereignty and Human Rights in Contemporary International Law, in Democratic Governance and International Law 239 (Gregory H. Fox & Brad R. Roth eds., 2000). 216. The Incident at Cavalese and Strategic Compensation, 94 American Journal of International Law 505 (2000) (with Robert D. Sloane).

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217. Procedures for Resolving the Kosovo Problem, Address to the United Nations Association (2000) (with Monica Hakimi and Robert D. Sloane). 218. Designing Curricula: Making Legal Education Effective in the 21st Century, in The Singapore Conference: Leading the Law and Lawyers into the New Millennium @ 2020, at 271 (2000). 219. The Vision and Mission of the Yale Journal of International Law, 25 Yale Journal of International Law 263 (2000). 220. How to Make Pirates into Law-abiding Citizens: Free and Fair Radio and Free and Fair Elections in Taiwan, in Freedom of the Press and The Mass Media 87 (2000). 221. Eritrea-Yemen Arbitration (Award, Phase II: Maritime Delimitation), 94 American Journal of International Law 721 (2000). 222. The Regime for Lacunae in the ICSID Choice of Law Provision and the Question of Its Threshold, in Essays in Honor of Ibrahim F.I. Shihata, 15 ICSID Review 362 (2000); reprinted in Liber Amicorum Ibrahim F.I. Shihata: International Finance and Development law (Sabine Schlemmer-Schulte & Ko-Yung Tung eds., 2001). 223. Scenarios of Implementation of the Statute of the International Criminal Court, in The Rome Statute of the International Criminal Court: A Challenge to Impunity 281 (Mauro Politi & Giuseppe Nesi eds., 2001). 224. A New Haven School Look at Sanctions, 95 Proceedings of the American Society of International Law 27 (2001). 225. In Defense of World Public Order, 95 American Journal of International Law 833 (2001). 226. Congratulation Letter, 1 Peking University International and Comparative Law Review (January 8, 2002). 227. Judge Shigeru Oda: Reflections on the Formation of a Judge, in Liber Amicorum Judge Shigeru Oda 573 (Nisuke Ando, Edward McWhinney & Rüdiger Wolfrum eds., 2002). 228. Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions, 35 Vanderbilt Journal of Transnational Law 729 (2002).

W. Michael Reisman: Publications

229. International Arbitration and Sovereignty, 18 Arbitration International 231 (2002). 230. Introduction to The Definition of Aggression and the ICC, 96 Proceedings of the American Society of International Law 181 (2002). 231. Preemptive Force: When Can It Be Used? Implications for Iraq and North Korea, XI-XII Foreign Policy Forum 195 (2002). 232. Jonathan I. Charney: An Appreciation, 36 Vanderbilt Journal of Transnational Law (2003). 233. Assessing Claims to Revise the Laws of War, 97 American Journal of International Law 82 (2003). 234. Illusion and Reality in the Compensation of Victims of International Terrorism, Hugo Black Lecture, 54 Alabama Law Review (2003) (with Monica Hakimi). 235. Aftershocks: Reflections on the Implications of September 11, 6 Yale Human Rights & Development Law Journal 81 (2003). 236. The Use of Friendly Settlements in the Inter-American Human Rights System, in Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese 741 (Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone, Olivier Fourmy, Christine Graham, John Hocking & Nicholas Robson eds., 2003) (with Susan Benesch). 237. Judge Shigeru Oda: A Tribute to an International Treasure, 16 Leiden Journal of International Law 57 (2003). 238. Self Defense in an Age of Terrorism, 97 Proceedings of the American Society of International Law 142 (2003). 239. Free Association: The United States Experience, 39 Texas International Law Journal 1 (2003) (with Chimène I. Keitner). 240. Indirect Expropriation and its Valuation in the BIT Generation, 74 British Year Book of International Law 115 (2003) (with Robert D. Sloane). 241. Unilateral Action in an Imperfect World Order, 8 Austrian Review of International and European Law 163 (2003) (with Scott Shuchart); reprinted in Multilateralism v. Unilateralism: Policy Choices in a Global Society (J.B. Attanasio & J.J. Norton eds., 2004).

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242. Comments on the Presentations by Nico Krisch and Carsten Stahn, in Terrorism as a Challenge for National and International Law: Security Versus Liberty? 909 (Christian Walter, Silja Vöneky, Volker Röben & Frank Schorkopf eds., 2004). 243. Why Regime Change Is (Almost Always) a Bad Idea, Manley O. Hudson Lecture, 98 American Journal of International Law 516 (2004); also printed in 98 Proceedings of the American Society of International Law 290 (2004). 244. Memorial Remarks, in In Memoriam Eugene V. Rostow 1913-2002, at 34 (Yale Law School 2004). 245. Learning to Deal with Rejection: The International Criminal Court and the United States, 2 Journal of International Criminal Justice 17 (2004). 246. Rasul v. Bush: A Failure to Apply International Law, 2 Journal of International Criminal Justice 973 (2004). 247. The Question of Unilateral Governmental Statements as Applicable Law in Investment Disputes, 19 ICSID Review 328 (2004) (with Mahnoush H. Arsanjani). 248. The Law-in-Action of the International Criminal Court, 99 American Journal of International Law 385 (2005) (with Mahnoush H. Arsanjani). 249. On Paying the Piper: Financial Responsibility for Security Council Referrals to the International Criminal Court, 99 American Journal of International Law 615 (2005). 250. The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application, in Developments of International Law in Treaty Making 15 (Rüdiger Wolfrum & Volker Röben eds., 2005); reprinted in 2 Transnational Dispute Management (June 2005). 251. Expanding the Security Council: Much Ado (August 7, 2005), http://jurist.law.pitt. edu/; reprinted in 36 Security Dialogue 373 (2005). 252. A Judge’s Judge: Justice Florentino P. Feliciano’s Philosophy of the Judicial Function, in Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano 3 (Steve Charnovitz, Debra P. Steger & Peter Van den Bossche eds., 2005). 253. The Question of Unilateral Governmental Statements as Applicable Law in Investment Disputes, in Common Values in International Law: Essays in Honour of Christian Tomuschat 409 (Pierre-Marie Dupuy, Bardo Fass-

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bender, Malcolm N. Shaw & Karl-Peter Sommermann eds., 2006) (with Mahnoush H. Arsanjani). 254. Foreword to Tai-Heng Cheng, State Succession and Commercial Obligations, at ix (2006). 255. Foreword to Elli Louka, International Environmental Law: Fairness, Effectiveness, and World Order, at xi (2006). 256. The Past and Future of the Claim of Preemptive Self-Defense, 100 American Journal of International Law 525 (2006) (with Andrea Armstrong); reprinted in A Century of International Law: American Journal of International Law Centennial Essays 1906-2006, at 189 (2007). 257. Holding the Center of the Law of Armed Conflict, 100 American Journal of International Law 852 (2006). 258. The Shadows Looming over International Law, 6 Baltic Yearbook of International Law 7 (2006). 259. No Exit? A Preliminary Examination of the Legal Consequences of United States’ Notification of Withdrawal From the Optional Protocol to the Vienna Convention on Consular Relations, in Promoting Justice, Human Rights and Conflict Resolution Through International Law / La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit international – Liber Amicorum Lucius Caflisch 897 (Marcelo G. Kohen ed., 2007) (with Mahnoush H. Arsanjani). 260. What is the Current Value of Signing a Treaty?, in Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber 1491 (Stephen Breitenmoser, Bernhard Ehrenzeller, Marco Sassòli, Walter Stoffel & Beatrice Wagner Pfeifer eds., 2007) (with Mahnoush H. Arsanjani). 261. The New Haven School: A Brief Introduction, 32 Yale Journal of International Law 575 (2007) (with Siegfried Wiessner and Andrew R. Willard). 262. Reflections on Economic Development, National Sovereignty and International Arbitration, in Arbitraje Internacional: Tensiones Actuales (Fernando Mantilla-Serrano ed., 2007). 263. Claims to Pre-emptive Uses of Force: Some Trends and Projections and Their Implications for World Order, in International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein 79 (Michael Schmitt & Jelena Pejic eds., 2007) (with Andrea Armstrong).

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264. Some Reflections on the Effect of Artisanal Fishing on Maritime Boundary Delimitation, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 629 (Tafsir Malick Ndiaye & Rüdiger Wolfrum eds., 2007) (with Mahnoush H. Arsanjani). 265. Law, International Public Policy (So-called) and Arbitral Choice in International Commercial Arbitration, in International Arbitration 2006: Back to Basics? 849 (ICCA Congress Series No. 13, Albert Jan van den Berg ed., 2007). 266. The Evolving International Standard and Sovereignty, 101 Proceedings of the American Society of International Law 462 (2007). 267. Preface to Douglas M. Johnston, The Historical Foundations of World Order: The Tower and The Arena, at vii (2008). 268. The International Criminal Court and the Congo: From Theory to Reality, in The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni 325 (Leila Nadya Sadat & Michael P. Scharf eds., 2008) (with Mahnoush H. Arsanjani). 269. On the Causes of Uncertainty and Volatility in International Law, in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity: Essays in Honour of Professor Ruth Lapidoth 33 (Tomer Broude & Yuval Shany eds., 2008). 270. Development and Nation-Building: A Framework for Policy-Oriented Inquiry, 60 Maine Law Review 309 (2008). 271. Acting Before Victims Become Victims: Preventing and Arresting Mass Murder, 40 Case Western Reserve Journal of International Law 57 (2008). 272. Preface to Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice (Emmanuel Gaillard & Domenico Di Pietro eds., 2008). 273. The Provisional Application of the Energy Charter Treaty, in Investment Protection and the Energy Charter Treaty 47 (Graham Coop & Clarisse Ribeiro eds., 2008). 274. Nullity in International Law, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2009), http://www.mpepil.com/ (with Dirk Pulkowski). 275. McDougal, Myres Smith, in The Biographical Dictionary of American Law 371 (Roger K. Newman ed., 2009).

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276. Eclipse of Expropriation, in Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2008, at 27 (Arthur W. Rovine ed., 2009) (with Rocío Digón). 277. Sanctions and International Law, 4 Intercultural Human Rights Law Review 9 (2009). 278. Combating Piracy in East Africa, 35 Yale Journal of International Law Online 14 (2009), http://www.yjil.org/ (with Bradley T. Tennis). Book Reviews 1.

Book Review, 61 American Journal of International Law 625 (1967) (reviewing Thomas C. Schelling, Arms and Influence (1966)).

2.

Book Review, 65 American Political Science Review 1256 (1971) (reviewing William I. Shore, Fact-Finding in the Maintenance of International Peace (1970)).

3.

Book Review, 65 American Journal of International Law 235 (1971) (reviewing Lief Kr. Tobiassen, The Reluctant Door: The Right of Access to the United Nations (1969)).

4.

Book Review, 65 American Journal of International Law 238 (1971) (reviewing Thomas Holton, An International Peace Court: Design for a Move from State Crime toward World Law (1970)).

5.

Book Review, 68 American Journal of International Law 748 (1974) (reviewing Subrata Roy Chowhury, The Genesis of Bangladesh: A Study of International Legal Norms and Permissive Conscience (1972)).

6.

Book Review, 68 American Journal of International Law 749 (1974) (reviewing The Events in East Pakistan, 1971: A Legal Study by the Secretariat of the International Commission of Jurists (1972)).

7.

Book Review, 69 American Journal of International Law 207 (1975) (reviewing China and the Question of Taiwan (Hungdah Chiu ed., 1973)).

8.

Book Review, 70 American Journal of International Law 196 (1976) (reviewing From War to Peace: Essays in Peacemaking and War Termination (David S. Smith ed., 1974)).

9.

Book Review, 70 American Journal of International Law 197 (1976) (reviewing Pierre-Marie Martin, Le Conflit Israelo-Arabe. Recherches sur l’Emploi de la Force en Droit International Public Positif (1973)).

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10. Book Review, 71 American Journal of International Law 375 (1977) (reviewing Roger H. Hull, The Irish Triangle: Conflict in Northern Ireland (1976) and Richard Rose, Northern Ireland: Time of Choice (1976)). 11.

Book Review, 71 American Journal of International Law 832 (1977) (reviewing Year-book of World Problems and Human Potential (1976)).

12. Book Review, 72 American Journal of International Law 447 (1978) (reviewing Preservación del Medio Ambiente Marino (Francisco OrregoVicuña ed., 1976)). 13. Book Review, 73 American Journal of International Law 720 (1979) (reviewing Pieter Jan Kuyper, The Implementation of International Sanctions: The Netherlands and Rhodesia (1978)). 14. Book Review, 28 American Journal of Comparative Law 358 (1980) (reviewing José A. Cabranes, Citizenship and the American Empire (1979)). 15. Book Review, 74 American Journal of International Law 738 (1980) (reviewing Emile A. Nakleh, The West Bank and Gaza: Toward the Making of a Palestinian State (1979)). 16. Book Review, 29 American Journal of Comparative Law 727 (1981) (reviewing Rogelio Pérez Perdomo, El Formalismo Juridico y sus Funciones Sociales en el Siglo XIX Venezolano (1978)). 17. Book Review, 76 American Journal of International Law 868 (1982) (reviewing Oran R. Young, Compliance and Public Authority (1979)). 18. Book Review, 77 American Journal of International Law 345 (1983) (reviewing Clovis C. Morrisson, Jr., The Dynamics of Development on the European Human Rights Convention System (1981)). 19. Book Review, 78 American Journal of International Law 503 (1984) (reviewing Encyclopedia of Public International Law, Instalment 1 (Rudolf Bernhardt ed., 1981)). 20. Book Review, 78 American Journal of International Law 516 (1984) (reviewing Gerald M. Steinberg, Satellite Reconnaissance: The Role of Informal Bargaining (1983)). 21. Book Review, 79 American Journal of International Law 200 (1985) (reviewing James F. Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (1982)).

W. Michael Reisman: Publications

22. Book Review, 79 American Journal of International Law 1082 (1985) (reviewing Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (1984)). 23. Book Review, 80 American Journal of International Law 268 (1986) (reviewing W. Laurence Craig, William W. Park & Jan Paulsson, International Chamber of Commerce Arbitration (1984)). 24. Book Review, 81 American Journal of International Law 263 (1987) (reviewing Encyclopedia of Public International Law, Instalment 7 (Rudolf Bernhardt ed., 1984)). 25. Book Review, 81 American Journal of International Law 306 (1987) (reviewing Friedrich Kratochwil, Paul Rohrlich & Harpreet Mahajan, Peace and Disputed Sovereignty: Reflections of Conflict Over Territory (1985)). 26. Book Review, 85 American Journal of International Law 205 (1991) (reviewing Encyclopedia of Public International Law, Instalment 9 (Rudolf Bernhardt ed., 1986)). 27. Book Review, 85 American Journal of International Law 207 (1991) (reviewing Encyclopedia of Public International Law, Instalment 10 (Rudolf Bernhardt ed., 1987)). 28. Lassa Oppenheim’s Nine Lives, 19 Yale Journal of International Law 255 (1994) (reviewing 1 Oppenheim’s International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1992)). 29. Metamorphoses: Judge Shigeru Oda and the International Court of Justice, 33 Canadian Yearbook of International Law 185 (1995) (reviewing Edward McWhinney, Judge Shigeru Oda and the Progressive Development of International Law (1993)). 30. Book Review, 92 American Journal of International Law 784 (1998) (reviewing Scott Davidson, The Inter-American Human Rights System (1997)).

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Part I W. Michael Reisman, The Person

Chapter 1 An Appreciation Rosalyn Higgins*

Michael has always been—as all international lawyers must surely be—committed to human rights. Nor could it be otherwise for one so involved with the promotion of the role of human dignity as a value to shape legal decision-making. But at the same time, I believe that Michael would have himself seen as a generalist international lawyer much interested in human dignity, rather than as a specialized human rights lawyer. So it was perhaps with a certain reserve that he found himself stepping up to be elected to a part-term seat at the Inter-American Commission on Human Rights in August 1990. He attended his first session from September 24 to October 5, 1990, and was then re-elected to serve a full four-year term until the end of 1995. As a member of the Commission, he participated in missions to Peru, Guatemala, and Colombia. In 1994, he was elected Chairman, traditionally a one-year post. He entered into this year with his customary commitment and quiet vigor. I know from conversations with Michael in the past that, on a personal level, he initially found the work difficult, and then a very important year. During his chairmanship he led missions to Haiti, Ecuador, the Bahamas and Jamaica—each requiring much effort in preparation and execution. Those close to the Commission’s work regard the pioneering decisions that the Commission took under Michael’s chairmanship to be of very particular importance. The Commission found the amnesty laws of Argentina and Uruguay to be incompatible with those states’ obligations under the American Convention.1 This generated much heat and controversy at the time, but these findings were to provide the foun*

1

This is the text of the statement delivered at the closing session of the conference to honor the work of Professor Michael Reisman held in New Haven on April 24, 2009. The author expresses her appreciation to Cina Santos, Dinah Shelton, Christina Cerna, and Elizabeth Andersen for their ready and helpful responses to her enquiries. Consuelo v. Argentina, Cases 10.147, 10.181, 10.240, 10.262, 10.309 & 10.311, Inter-Am. C.H.R., Report No. 28/92, OEA/Ser.L/V/II.83 doc. 14, at 41 (1993); Mendoza v. Uruguay, Cases. 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 & 10.375, Inter-Am. C.H.R., Report No. 29/92, OEA/Ser.L/V/II.83 doc. 14, at 154 (1993).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 3-11.

I W. Michael Reisman, The Person

4

dations for later action, which consolidated the positions taken in Michael’s amnesty cases. Thus, in 2001, the question of Peru’s amnesty laws was taken by the Commission to the Inter-American Court. This was the Barrios Altos case, and in its judgment of March 14, 2001, the Court held on the same grounds that had been articulated in the earlier Commission decisions regarding Argentina and Uruguay during Michael’s chairmanship, that Peru’s amnesty laws were incompatible with the American Convention and that they lacked legal effect.2 President Fujimori had already fled, and the judgment was not opposed by the new interim government. Chile, as is generally known, had introduced what we may term a “self-amnesty law.” This, too, was taken by the Commission to the Court, and on September 26, 2006, the Court issued a comparable judgment in the Almonacid case.3 That law remains unrepealed, although it seems that it is no longer regarded as an impediment to prosecutions for the massive human rights violations of the Pinochet era. These are now occurring. And through a Supreme Court judgment of 2005, Argentina has actually repealed its amnesty laws, specifically relying on the Inter-American Court’s finding in the Barrios Altos case.4 The story is still ongoing, of course, but Michael is entitled to look back on this Inter-American human rights interlude in his professional life and feel that significant accomplishments were made and judicial seeds of real importance were sown for those who had suffered. It is clear that we all regard Michael Reisman as a phenomenon. But he is also an extraordinarily decent human being. This is manifested in myriad ways: in the care he takes of his students; in the support he continues to give them (even after they have left Yale, just as did Myres McDougal before him); and in so many other ways. And if he undertakes something, he makes a commitment to that undertaking that is more than whole-hearted. This is nowhere more exemplified than in his relationship with the American Society of International Law. His services to the American Society of International Law are simply outstanding. It is to be hoped that a member of the Editorial Board of the American Journal of International Law (AJIL) will find time each year to write a short comment or to make some other written contribution. And I have certainly had the impression over the years that Michael has more than honored this expectation. Indeed I have been the fortunate recipient of many offprints of his AJIL contributions. So I thought I would run a check on what he has published in the Journal. The result has proved simply staggering. Since 1967, Michael has written a steady stream of pieces, some short and pithy, others long scholarly articles. But the sheer volume of his AJIL contributions and their quality and interest is really astonishing. On my count, between 1967 and the present time, Michael contributed nearly sixty 2 3 4

Barrios Altos v. Peru, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001). Almonacid-Arellano v. Chile, 2006 Inter-Am. Ct. H.R. (ser. C) No. 154 (Sept. 26, 2006). Corte Suprema de Justicia [CSJN], 14/6/2005, “Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,” Fallos (2005-328-2056) (Arg.).

1. Rosalyn Higgins, An Appreciation

pieces to the AJIL alone, not counting his innumerable contributions to other journals, or chapters in books, or indeed entire books. And there are some ten further papers prepared for annual meetings of the American Society of International Law. Michael’s writings in AJIL have focused on the great themes of the day—use of force issues, such as the question of preemptive self-defense; regime change; UN constitutional issues; claims for the need to revise the laws of war; the International Criminal Court; Kosovo; and Afghanistan. He has also shown an interest in indigenous rights, the role of the media in the realm of human rights, and purported unilateral treaty terminations. For me, several points come clearly through. First, there is a clear sense of “assumed responsibility”: such contributions are what a member of the AJIL should do, and that is all there is to it. Second, the ground covered is impressively broad, even while the analysis is deep. Third is that one of many reasons why it is always interesting to read Michael’s pieces is that you do not know in advance what his conclusions will be. With some writers—as with some judges, I may say—one always knows in advance what points they will make, and what position they will take. That is not the case with Michael. The research is always scholarly, the mind is open, and the conclusions invariably interesting—and often contrary to the stereotypes envisaged by those who do not understand the Yale School. I think of his AJIL article with Myres McDougal supporting sanctions against Ian Smith’s Rhodesia,5 and of his 1989 article The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion.6 Michael has done much more within the American Society of International Law. There have been honors, of course—the Certificate of Merit in 1994 for Systems of Control in International Adjudication and Arbitration (1993)7 and the Manley Hudson Medal in 2004. But he has characteristically taken on the burdens, too—chairing the Honors Committee and the Awards Committee (I sat on the latter and remember very clearly the thoughtful multiparty phone conversations he conducted, full of respect for committee members and for the candidates alike). He has been a member of the Society’s Executive Council and is today a Counselor. Above all, he was Editorin-Chief of the American Journal of International Law from 1998 to 2003. This is not a job for the faint-hearted. It entails an extraordinary amount of reading and a prodigious amount of related work. All Journal editors are heroes in my eyes. Michael was a much respected editor, doing all his work quietly, with meticulous care, and with significant success. One has to remember that all this writing and editing for the Society was going on in parallel to an extraordinary output of high-quality writing elsewhere. He has written on international commercial arbitration and is an active practitioner. He has been immensely generous in his contributions to Festschriften and has thought5 6 7

Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 Am. J. Int’l L. 1 (1968). W. Michael Reisman, Editorial Comment, The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion, 83 Am. J. Int’l L. 519 (1989). W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (1992).

5

I W. Michael Reisman, The Person

6

fully tailored his writings to the person being honored. The piece he and Mahnoush contributed on artisanal fishing to Tom Mensah’s liber amicorum is a case in point.8 He has also honored Cherif Bassiouni, Luzius Wildhaber, Yoram Dinstein, Lucius Caflisch, Christian Tomuschat, and Toy Feliciano, among others. I have not had the experience of co-authoring with Michael—perhaps it was geographical separation, or perhaps he would have been appalled by the idea! But I am very proud that in 1998, Michael and I, together with Dick Falk and Burns Weston, jointly paid our tribute in the American Journal upon the passing of Myres McDougal.9 Michael has contributed to international law as a practitioner for many, many years. He was Myres McDougal’s right hand when Mac was in his prime and sought after, inter alia, for his opinions in cases under litigation or in pending arbitrations. The legal work was often done with Michael as co-counsel. In due course, and in the natural way of things, Michael himself was sought after for written advice or also as counsel. The sheer size of his written practice is very impressive. He was involved as counsel in the Guinea v. Guinea Bissau Maritime Boundary Delimitation (1985);10 in Advisory Opinion No. 14 in the Inter-American Court of Human Rights;11 in the Genie Lacayo case12 in that same Court; in the 2003 International Tribunal for the Law of the Sea Malaysia v Singapore case;13 and in the 2004-2005 Barbados/Trinidad and Tobago14 arbitration at the Permanent Court of Arbitration. He advised in many more cases and was an expert witness in yet others. I had the pleasure of hearing Michael in the International Court of Justice, both in the Qatar v Bahrain case at the merits phase (2001)15 and in his application on behalf of the Philippines for permission to intervene in the Pulau Ligitan and Pulau

8

9 10 11

12 13

14 15

W. Michael Reisman & Mahnoush H. Arsanjani, Some Reflections on the Effect of Artisanal Fishing on Maritime Boundary Delimitation, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 629 (Tafsir Malick Ndiaye & Rüdiger Wolfrum eds., 2007). Richard A. Falk, Rosalyn C. Higgins, W. Michael Reisman, & Burns H. Weston, Myres Smith McDougal (1906-1998), 92 Am. J. Int’l L. 729 (1998). Affaire de la Délimitation de la Frontière Maritime [Delimitation of the Mar. Boundary] (Guinea v. Guinea-Bissau), 19 R. Int’l Arb. Awards 149 (1985). International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention, Advisory Opinion, 1994 Inter-Am. Ct. H.R. (ser. A) No. 14 (Dec. 9, 1994). Genie Lacayo Case, 1995 Inter-Am. Ct. H.R. (ser. C) No. 21 (Jan. 27, 1995). Land Reclamation by Singapore in and Around the Straits of Johor (Malay. v. Sing.), Request for Provisional Measures, in 7 International Tribunal of the Law of the Sea, Reports of Judgments, Advisory Opinions and Orders 10 (2003), available at http://www.itlos.org/case_documents/2003/document_en_230.pdf. Delimitation of the Exclusive Economic Zone and the Continental Shelf (Barb. v. Trin. & Tobago), 27 R. Int’l Arb. Awards 147 (Perm. Ct. Arb. 2006). Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), 2001 I.C.J. 40 (Mar. 16).

1. Rosalyn Higgins, An Appreciation

Sipadan case.16 I remember the latter particularly clearly, admiring the low-key, unshowy, conversational style of pleading—impressively learned and analytical. But above all, it has really been as an arbitrator that Michael has made his most important contributions. A handful of these started in the 1980s and 1990s. But the sheer quantum of his service as arbitrator since the turn of the century has been huge by any standards. Everyone knows—not least because his fellow arbitrators have made it clear—of his massive contribution in the recent Eritrea v. Ethiopia boundary arbitration,17 so valiantly chaired by Eli Lauterpacht, who with his colleagues made every effort to secure the outcomes determined by the Tribunal. For the conference in his honor at Yale, Michael returned virtually overnight from The Hague where he was sitting as a member of the Tribunal in another boundary arbitration, The Government of Sudan / The Sudan People’s Liberation Movement/Army (Abyei Arbitration).18 Michael Reisman seems able to turn his hand to anything and everything. I am absolutely sure that the phrase “not my field, I am afraid” has never passed Michael’s lips because whatever legal requests are made of him, these are already, or in very short order will have been made, “his field.” Thus it is that he is equally at ease in highly commercial and financial fields of law, perhaps more usually the domain of private international lawyers, as in areas more familiar to the general public international lawyers. Many have written—Michael Reisman among them—about the complex, curious, and sometimes unsatisfactory world of international arbitration that exists today. For today’s purposes, it suffices to say that it is widely agreed that on a range of important themes—themes which arise again and again—divergent answers have been given by different tribunals. And it is thought that a contributory factor to this has been that commercial and private law experts, whose practice has certainly led them to know some public international law, have been important players in the rendering of these (often divergent) pronouncements. The parties to disputes where such points will inevitably again arise are increasingly looking to the possibility of some of these matters being now authoritatively settled—and that, they think, means by leading international lawyers. For this, and other reasons, Michael Reisman is not only a heavily sought after arbitrator, but indeed a “chairman of choice” for arbitrators who have already been appointed by state parties, who are looking for a chairman who has high competence in all the various themes that so often arise in international arbitrations, and whose personality and skills will guide the work at hand.

16 17 18

Sovereignty over Pulau Ligitan & Pulau Sipadan (Indon. v. Malay.), 2002 I.C.J. 625 (Dec. 17) (Application to Intervene by Phil. of Mar. 13, 2001). Delimitation of the Border Between Eritrea and Ethiopia (Eri. v. Eth.), 25 R. Int’l Arb. Awards 83 (Eri.-Eth. Boundary Comm’n 2002). See Permanent Court of Arbitration, Sudan v. Sudan People’s Liberation Movement/ Army (Abyei Arbitration), http://www.pca-cpa.org/showpage.asp?pag_id=1306.

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While this certainly is not the place to dissect the Bank for International Settlement (BIS) and OSPAR Awards,19 both of which Michael presided over, some brief mention is warranted to illustrate the particular points I have been making. The unanimous BIS Awards—the so-called Partial Award on procedural and substantive matters, and the Final Award on valuation—contain a multitude of important findings and determinations important for our field. The BIS Partial Award of 2002 is perhaps the most significant since the International Tin Council litigation and the Westland Helicopters arbitration and litigation20 on matters relating to the law applicable to acts of international persons, both generally and very specifically; and on the concomitant issues relating to their powers, particularly as regards their own constituent instruments. This Award is also widely welcomed for bringing clarification (which should indeed be regarded as authoritative clarification) on the free-standing character of state-private claimant arbitrations. Claims that were made relating to the need for state intervention or diplomatic protection, so far as private claimants are concerned, are very clearly responded to, in the negative. Considerable technical competence was needed to advance the resolution of issues relating to valuation. And the international law on the matter—which is already very rich—has been developed further in certain important regards. I may add that the procedural determinations made in these cases have attracted appreciation in the profession, being important beyond the confines of this case. Michael was chosen by the two state-appointed arbitrators to preside over the OSPAR 2003 Award. This, of course, was the “first leg” in the Ireland-UK litigation (MOX). This was decided by majorities of 2-1, with the composition of those majorities changing on particular issues, though on what we may call the central issue, Gavan Griffith, appointed by Ireland, dissented.21 That central issue was whether Article 9 of the OSPAR Convention (which contained certain obligations, and which carried its own exceptions) required the United Kingdom to have provided certain information requested by Ireland, or rather required the United Kingdom to have established a certain domestic regime. I find this Award interesting for reasons that are perhaps different from the usual. It is clear the Tribunal held that its jurisdiction ratione materiae extended only to

19

20 21

Reineccius v. Bank for Int’l Settlements, Final Award (Perm. Ct. Arb. Sept. 19, 2003), available at http://www.pca-cpa.org/showpage.asp?pag_id=1157; Reineccius v. Bank for Int’l Settlements, Partial Award (Perm. Ct. Arb. Nov. 22, 2002), available at http://www. pca-cpa.org/showpage.asp?pag_id=1157; Access to Information Under Article 9 of the OSPAR Convention (Ir. v. U.K.), Final Award (Perm. Ct. Arb. July 2, 2003), available at http://www.pca-cpa.org/upload/files/OSPAR20Award.pdf. Westland Helicopters Ltd. v. Arab Org. for Industrialisation, [1995] Q.B. 282 (U.K.); J.H. Rayner Ltd. (Mincing Lane) v. Dep’t of Trade & Indus., (1990) 2 A.C. 418 (H.L.) (U.K.). In his Declaration, Michael Reisman explained that he “did not concur” with “the majority’s interpretation of Article 9(1)” of the OSPAR Convention and that “Ireland’s proposed interpretation … should have been rejected.” Access to Information Under Article 9 of the OSPAR Convention, supra note 19, at 60 (Declaration of Professor W. Michael Reisman).

1. Rosalyn Higgins, An Appreciation

parties’ obligations under the OSPAR Convention, and not under other Conventions. But it did not say—contrary to the belief of some commentators—that OSPAR was a “self-contained” regime, an idea that I believe would be anathema to Michael. It is still firmly located within customary international law. The Award is of interest especially as regards the question of what other than the law to be applied ratione materiae may still be “looked at” for illumination—a frequent problem. It also held that the requirement in Article 32(6)(a) of the OSPAR Convention, which states that disputes be settled in accordance with international law, does not thereby create a comprehensive legal regime that essentially “overrides” specific law applicable ratione materiae. As one who opposed the Court’s finding in the Oil Platforms case22 that the reference to Article 31(3)(c) of the Vienna Convention on the Law of Treaties did exactly that, introducing the very matters that had already been rejected at an earlier phase as falling within the Court’s jurisdiction ratione materiae, I am necessarily very supportive of this analysis. I conclude this section of my remarks by saying that Michael—who is not a professional arbitrator, and who still thinks of himself, above all, as an academic—sits in an astonishing number of arbitrations and is in demand as chairman in particularly heavy and complex arbitrations. The parties and their appointed arbitrators are right in thinking that matters could not be in better hands. I was at Yale from 1959 to 1961. I did not meet Michael, who was just a little bit my junior in age, during those years, but I had become very close to Mac, and I heard very soon after about Michael and what a great future Mac saw for him. Myres McDougal undoubtedly brought Michael and me together as friends. Myres McDougal died in 1998. Work brought me back to the States very frequently after I concluded my doctorate. And, during Mac’s life, I was never, ever, in the States without going up to Yale to see Mac. Since work—usually at the United Nations— would be keeping me busy mid-week, my visit to Yale was very usually scheduled for a Sunday. Mac would invite me to lunch at the Yale Lawn Club. In the event, it was always a ménage à trois. Michael would be there too—in the earlier years because Mac, no doubt, and quite rightly, thought that there would then be much interesting conversation between the three of us. In the later years, it was not possible for Mac to engage in these social events without the assistance of Michael, who was always readily at hand. Our lunch conversations were always interesting, ranging over what we were each working on at that time, different personalities, and the great issues of the day. I could not but notice that as the years rolled on, Mac had less that he wanted to say and deferred increasingly to what Michael might think on this or that topic. Mac had seen early the potential and the character of this young scholar. And Michael had seen the intellectual greatness and the exceptional humanity of his benefactor. I was very touched by their relationship. Mac had undoubtedly done much in Michael’s intellectual formation and career progression. And, right to the end, Mi-

22

Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 225, 237 (Nov. 6) (separate opinion of Judge Higgins).

9

I W. Michael Reisman, The Person

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chael was there for Mac every minute of every day; attending to his needs with that same intense, caring respect that I think so exemplifies his character. I came to know Mahnoush a little later, but now long years ago. They have made an extraordinary pairing—each so admiring and supportive of the work of the other. Each has had important, distinct careers, and intermittently, and increasingly, they have together turned their attention jointly to some writing or other project. I think of the marvelous visits Terry and I have made to their Connecticut home, with the conversation ringing in one’s ears long after. And, in more recent years, I think of the special lunches and dinners together around Geneva, when work brought us all together there in summertime. So very much has happened since the early 1960s, and Michael’s career has taken him in wonderfully diverse directions, with global recognition. But I think I should still say some words about where it all began and Michael’s place in the Yale School of International Law. It will be good to go back to the beginnings. By that I mean, of course, Michael’s relationship with both Harold Lasswell and Myres McDougal. Because Harold Lasswell was a political scientist, and because he did not live the very long life that was given to McDougal, it is easy to let drop from sight the pivotal role he played in formulating with McDougal the ideas and jurisprudential methodology that have become renowned as the Yale Law School policy science approach to international law. Michael’s first contacts with Lasswell and with McDougal occurred exactly during those years when they were bringing their joint venture towards fruition. He was identified very early by Mac as someone of exceptional ability, who would become very important in the world of international law. Michael was indeed marked forever by his exposure to these intellectual giants. And that is true of many of us here today, myself included. Michael said at the conference in his honor, with characteristic modesty, “I was the legatee and not the founder of the New Haven School.” But it is also the case that Michael’s work in those early years contributed significantly, across a range of publications in the early 1960s, to the articulation of the policy science approach. He came to be much relied on by Mac and Lasswell, not only as a researcher during these critical formative years, but as a contributor to their great enterprise.A number of persons have had the exceptional experience of writing books during with Myres McDougal during this period—Toy Feliciano, Bill Burke, Lung-chu Chen, James C. Miller, and Ivan A. Vlasic. But it is Michael who was constantly at McDougal’s side through these years. He wrote the obituary for Harold Lasswell in the 1979 AJIL with McDougal.23 It was he, in 1976, who organized the book in honor of McDougal, Toward World Order and Human Dignity.24 In 1981, he published International Law in

23 24

Myres S. McDougal & W. Michael Reisman, Harold Dwight Lasswell (1902-1978), 73 Am. J. Int’l L. 655 (1979). Toward World Order and Human Dignity: Essays in Honor of Myres S. McDougal (W. Michael Reisman & Burns H. Weston eds., 1976).

1. Rosalyn Higgins, An Appreciation

Contemporary Perspective: The Public Order of the World Community25 with McDougal, and in 1987 their partnership continued with the publication of Jurisprudence: Understanding and Shaping Law.26 These are among the visible contributions to this school of legal philosophy. There will be so very much more, day in and day out, that cannot be counted by the evidence of publications. If Michael was an important contributor to the Lasswell-McDougal jurisprudence, he has also been its clearest articulator. Michael has provided the bridge to the world of international law at large, successfully there translating and applying the concepts and ideas of the Yale School. It should not be thought—and I want to say this plainly—that exposure to the policy science approach to law is something that happens in one’s youth, and then is left behind as one climbs up the greasy pole of a successful career in the “real world” of international law. I can give you two small pieces of evidence. The first is Michael’s interesting publication just last year in the Maine Law Review of Development and Nation-Building: A Framework for Policy-Oriented Inquiry.27 It is, of course, the essence of the policy-oriented approach that it is applicable to any type of law and to any type of issue, and here Michael shows that the issues surrounding sustainable development are not a random set of factors, but can be analyzed systemically if one has the tools. And, a few weeks ago, I found myself participating in a conference on “The United Nations and Global Values.” It was clear to me that the term “values” was being thrown around like confetti. As I prepared my conference paper—as usual, up against time deadlines—I e-mailed to Michael: “What is the difference between ‘shared values’ in the policy science sense and ‘desired outcomes’ used more generally?” Michael prudently did not assay an answer, but immediately e-mailed back a reference to a particular passage in a particular article by McDougal. He remains the keeper of the flame, the one among us with probably the most profound understanding of what had instinctively attracted us as our ideas were being shaped. I share with everyone the sense of privilege in being able to listen to the statements honoring him and to say these things directly to him.

25 26 27

Myres S. McDougal & W. Michael Reisman, International Law in Contemporary Perspective: The Public Order of the World Community (1981). W. Michael Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping Law (1987) (containing numerous writings by McDougal). W. Michael Reisman, Development and Nation-Building: A Framework for Policy-Oriented Inquiry, 60 Me. L. Rev. 309 (2008).

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Chapter 2 Michael Reisman, Dean of the New Haven School of International Law Harold Hongju Koh*

Until recently, I served as Dean of the Yale Law School. I like to think of myself as Michael Reisman’s “other Harold.” His first Harold was, of course, the great political scientist Harold Lasswell, who along with Myres McDougal, founded the New Haven School of International Law. But for nearly twenty-five years, Michael Reisman has also been my senior colleague, and by osmosis, my teacher, as we have served together on the Yale Law School faculty. I like to think that he has granted me, a lifelong New Havener, admission as a “special student” in the New Haven School of International Law. That is an intellectual school in which I have been a fellow traveler and of which Michael has been the acknowledged Dean. And so, the irony: while I have been his “other Harold,” Michael has been my “other Dean!” All of the contributors to this volume would, I believe, celebrate four remarkable attributes of “Dean” Michael Reisman. The first is that Michael has been a scholar of stunning achievement and range. He is just astonishingly prolific and incisive. Trying to read all his work, in public and private international law, jurisprudence, and human rights, inevitably makes one feel inadequate. Michael Reisman can write faster than most scholars can read. Like a man bailing out a leaky boat, by the time you fill up one bucket, you find that five more buckets full have poured in! There is almost no way to read Michael’s huge scholarly corpus seriatim. So over the years, what I have learned to do instead, whenever I come across a new topic in international law—whether corruption, prodemocracy intervention, review and enforcement of international judgments, treaty interpretation, or communications theory—is to look first for what Michael has written on the subject. He has always written something *

This contribution, which first appeared in the Yale Journal of International Law, see 34 Yale J. Int’l L. 501 (2009), is a lightly edited and footnoted version of introductory remarks made at “Realistic Idealism in International Law: A Conference in Honor of W. Michael Reisman,” held at the Yale Law School on April 24, 2009. It derives in good measure from an essay previously published in the Yale Journal of International Law, which considered the relationship of the traditional New Haven School of International Law to recent developments in international legal theory, which some have dubbed the “New New Haven School of International Law.” See Harold Hongju Koh, Commentary, Is There a “New” New Haven School of International Law?, 32 Yale J. Int’l L. 559 (2007).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 13-16.

I W. Michael Reisman, The Person

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cogent. And every piece is elegant, powerful, and insightful, and gives me a new clarifying lens with which to view the subject. More fundamentally, Michael Reisman transformed the New Haven School of International Law. As I have noted elsewhere, during the founding era of Myres McDougal and Harold Lasswell, the New Haven School was the international law school for legal realists.1 The School developed a functional critique of both legal formalism and legal positivism in international law. Like most schools, the New Haven School did not include all international lawyers who lived in New Haven, nor did all of its members ever reside there.2 Today, McDougal’s and Lasswell’s insights continue to be developed through the work of a diverse array of scholars and practitioners, many of whom have contributed to this volume, who share the School’s process methodology while adopting a variety of views regarding law’s social ends and policy values. At the same time, however, the New Haven School employed its legal realist methods to critique Cold War political realism, offering, in one scholar’s words, “a kind of socio-legal realism to combat the power-based realism that dominated the early Cold War period.”3 McDougal and Lasswell found that the school of political realism both “underestimates the role of rules, and of legal processes in general, and overemphasizes the importance of naked power.”4 Unlike the political realists, the New Haven School insisted on an abiding belief that, even in international affairs, law and rules do matter. In a lifetime of work, Michael Reisman gave the New Haven School new insights and brought it into the twenty-first century. As great as McDougal was, it was Michael who gave the New Haven School its modern relevance and vitality. His technique has been fundamentally jurisprudential. Michael brilliantly argued that the New Haven School viewed international law as a “process of communication,” which sees the legal process as comprising three communicative streams: “policy content,

1 2

See Koh, supra note *, at 561. As one student of the School put it: The New Haven school does not describe the world’s different community decision processes through a dichotomy of national and international law, in terms of the relative supremacy of one system of rules or other interrelations of rules. Instead, it describes them in terms of the interpenetration of multiple processes of authoritative decision of varying territorial compass. … [I]nternational law is most realistically observed, not as a mere rigid set of rules but as the whole process of authoritative decision in which patterns of authority and patterns of control are appropriately conjoined.

3

4

Eisuke Suzuki, The New Haven School of International Law: An Invitation to a PolicyOriented Jurisprudence, 1 Yale J. World Pub. Ord. 1, 30 (1974). Paul Schiff Berman, A Pluralist Approach to International Law, 32 Yale J. Int’l L. 301, 305 (2007). See generally Oona A. Hathaway & Harold Hongju Koh, Foundations of International Law and Politics 173-204 (2005) (reviewing tenets of political realism). Myres S. McDougal, International Law, Power and Policy: A Contemporary Conception, 82 Recueil des Cours 137, 157 (1953).

2 Harold Hongju Koh, Michael Reisman, Dean of the New Haven School of International Law

authority signal and control intention.”5 This communications model, he argued, “liberates the inquirer from the … distorting model of positivism, which holds that law is made by the legislature,” in favor of the notion that “any communication between elites and politically relevant groups which shapes wide expectations about appropriate future behavior must be considered as functional lawmaking.”6 As fundamentally, under Michael’s “deanship,” the New Haven School recommitted itself to normative values. By treating international law as more than just a body of rules, the New Haven School committed itself not simply to a study of bare process, but more fundamentally, to an examination of a process of authoritative decisionmaking dedicated to promoting a set of normative values. As Michael wrote, the New Haven School insisted “that the end of law and the criterion for appraisal of particular decisions was their degree of contribution to the achievement of a public order of human dignity.”7 As an unusually courageous president of the Inter-American Commission on Human Rights and an international arbitrator of global renown, Michael insisted upon maintaining and building the School’s connection between law and policy. The New Haven School became known as a school of policy-oriented jurisprudence, in no small part because of Michael’s conviction that international law rules are intended to reflect the needs of international policy arguments.8 Second, Michael is an outstanding teacher. No one has had more time for his students, and he has personally guided and inspired a generation of scholars and teachers, as evidenced by the plethora of diverse essays in this volume. Michael helped give birth to the Yale Journal of International Law, which fittingly published the proceedings of a recent conference in his honor in its thirty-fourth volume. As Michael has himself recalled, the then-Dean of Yale Law School actually rejected the original student proposal to form a journal of international law in 1974. But undaunted, with Michael’s support, the determined organizers insisted upon founding and publishing the journal anyway, working “[i]n secrecy, in the bowels of the international law library … at night … [in] an underground bunker,” using half of the graduate stipend of the first Editor-in-Chief to print the journal from 1974 to 1978.9 A third reason to celebrate Michael is for the remarkable mentor and role model he has been. During the quarter century that we have been together on the Yale faculty, Michael has shown me the kind of graciousness and warmth that young international law professors can only dream of. I remember seeing him at a conference in 5 6 7 8

9

W. Michael Reisman, International Lawmaking: A Process of Communication, 75 Am. Soc’y Int’l L. Proc. 101, 113 (1981). Id. at 107. W. Michael Reisman, Theory About Law: Jurisprudence for a Free Society, 108 Yale L.J. 939 (1999). See, e.g., Myres S. McDougal & W. Michael Reisman, International Law in Policy-Oriented Perspective, in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Ronald St. J. MacDonald & Douglas Johnston eds., 1983). W. Michael Reisman, The Vision and Mission of The Yale Journal of International Law, 25 Yale J. Int’l L. 263, 264 (2000).

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Boston twenty years ago, which ended with his graciously giving me a ride all the way home (and giving me priceless advice along the way). On a few occasions, although we have rarely had time to lunch together in New Haven, we have shared meals together in Washington, D.C. or some foreign capital. But for me, the most memorable moments have been beautiful dinners at his home in North Haven, where amid the birch trees and wooded hills, my wife Christy and I have found ourselves breaking bread with international law figures I had always wanted to meet—ambassadors, international jurists, legal advisers—all of whom Michael had lured briefly away from New York City and the United Nations to become visiting students of the New Haven School of International Law. The fourth, final, and most important point to recognize about Michael Reisman is that he is only in mid-career. His astonishing output continues unabated, his energy puts his younger colleagues to shame, and his zest to write and engage in the world of international action and ideas has never been greater. So in this volume, we honor Michael Reisman, the Dean of the New Haven School of International Law. We also take stock of a lifetime of work that is still very much in progress: the accomplishments of a scholar, teacher, mentor, and colleague who could say, to paraphrase John Paul Jones, “I have only just begun to write!” And, I would add, he has only just begun to influence the intellectual framers of a new global century that, after all, is only just beginning.

Chapter 3 L’honneur des juristes Prosper Weil

Le débat est vieux comme le monde: le rôle du juriste consiste-il à décrire le système juridique tel qu’il est en vigueur à un moment donné dans une société donnée—ce que l’on appelle communément le droit positif—et se limite-t-il à cette description, ou bien s’étend-il à une appréciation critique de ce système à la lumière de critères extra-juridiques ou métajuridiques, notamment moraux? C’est à ce problème éternel—auquel les juristes ont été confrontés dans de nombreux pays dans la première moitié du vingtième siècle—que le professeur Michael Reisman vient de consacrer un article éblouissant dont l’intitulé même est déjà d’une force exceptionnelle: Acting before victims become victims: preventing or arresting mass murder.1 Dès l’introduction le ton est donné: … if life is the most precious of things, … should not acting to prevent before the fact, as opposed to acting to punish after the fact, be the primary technique of international law for dealing with mass murder? La décision prise par les autorités de l’Allemagne national-socialiste le 20 janvier 1942 à la tristement célèbre conférence de la Wannsee d’entreprendre “la solution finale” du “problème juif ” par l’extermination totale des Juifs d’Europe était connue des plus hautes autorités alliées, en particulier du président Roosevelt et du premier ministre Churchill, mais rien n’a été fait pour en empêcher l’exécution: not a single B-29 Flying Fortress, observe l’auteur, was dispatched to either bomb the rail lines carrying victims to the gas chambers or destroy the gas chambers themselves in an effort to arrest the genocide … No efforts were made to arrest or prevent the genocide … Cette “stratégie” d’inaction face aux génocides a-t-elle véritablement changé depuis la fin de la seconde guerre mondiale? Rien n’est moins sûr. Le constat dressé par Michael Reisman est terrible: the preferred strategy has always been “Nurembergian”—to wait for the mass killings to play themselves out and then to establish criminal tribunals. La célèbre convention internationale de 1948 “pour la prévention et la répression du crime de génocide” déclare certes dans son article premier que les Parties contractantes “s’engagent à prévenir et à punir” le crime de génocide, mais dans la suite de ses dispositions il n’est plus question que de répression—autrement dit, d’action ex 1

W. Michael Reisman, Acting Before Victims Become Victims: Preventing and Arresting Mass Murder, 40 Case W. Res. J. Int’l L. 57 (2007-2008).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 17-19.

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post. Et dans son article VIII la Convention confie certes aux “organes compétents de l’Organisation des Nations Unies” le pouvoir de prendre “les mesures qu’ils jugent appropriées pour la prévention et la répression des actes de génocide,” mais leur action a été pour le moins décevante: le Conseil de Sécurité a été paralysé par le droit de veto; quant à l’Assemblée générale, elle n’a jamais tenté sérieusement de surmonter cet obstacle. Depuis l’entrée en vigueur de la Convention de 1948 il y a eu plus d’un massacre à travers le monde, mais, comme le souligne l’auteur, jamais—que ce soit au Cambodge, au Ruanda ou au Darfour—la communauté internationale n’est allée au-delà d’une condamnation verbale ex post facto. Tout aussi décevante a été la réaction du monde juridique international—qui, s’indigne Michael Reisman, s’est tout au contraire montré critique des quelques rares efforts internationaux faits pour mettre fin aux massacres: As strange as it may seen, écrit-il, many international lawyers take issue with the lawfulness of the few effective efforts to stop ongoing mass murders. Quant aux “organes compétents de l’Organisation des Nations Unies” qui, aux termes de l’article VIII de la Convention, peuvent être saisis par toute Partie contractante en vue de prendre “les mesures qu’ils jugent appropriées pour la prévention et la répression des actes de génocide,” leur action a été pour le moins décevante. Le constat dressé par l’auteur est sévère: le Conseil de Sécurité a été paralysé par le droit de veto, et l’Assemblée générale has never done anything effective pour surmonter cet obstacle. Quant à la Cour internationale de Justice, la conception restrictive du recours à la force qu’elle a adoptée laisse little or no room for the inclusion of unilateral humanitarian action: aucun consensus, souligne l’auteur, n’existe  on a right of unilateral “humanitarian intervention” to protect victims of large-scale human rights violations, including genocides and mass killings. Tout espoir n’est cependant pas perdu, car la jurisprudence récente constitue peut-être l’amorce, certes timide, d’une évolution du droit international en cette matière—a welcome reverse des tendances antérieures, écrit Michael Reisman. L’auteur se réfère à cet égard à l’arrêt rendu par la Cour internationale de Justice en 2007 dans l’affaire de l’Application de la Convention sur la prévention et la répression du crime de génocide (Bosnie et Herzégovine c. Serbie et Monténégro),2 dans lequel la Cour s’étend longuement sur la double obligation qui pèse sur les Etats tout à la fois de prévenir le génocide et de le punir.3 Cette évolution du droit international, pour bienvenue qu’elle soit, n’est certes pas sans risque, Michael Reisman ne le cache pas: When prevention requires intervention in interstate affairs, it becomes fraught with its own moral problems and thorny policy questions. Mais ce risque, estime-t-il, vaut la peine d’être couru: does not the prospect of saving lives—of acting before victims become victims—make it worth that trouble? Mieux vaut, souligne Reisman, recourir ex ante à des mesures destinées à la prévention du génocide que de s’en remettre exclusivement à des procédures destinées à le sanctionner ex post.

2 3

Arrêt du 26 février 2007. Voir en particulier paras. 426 et ss.

3 Prosper Weil, L’honneur des juristes

L’étude de Michael Reisman évoque ainsi l’éternel problème des rapports entre le droit positif et la morale. C’est là, on le sait, un problème mille fois évoqué depuis la tragédie de Sophocle qui montre Antigone bravant l’interdiction royale de rendre les honneurs funèbres à son frère en se glorifiant de faire prévaloir les “lois non écrites et inébranlables” de la conscience sur les lois politiques et la raison d’Etat. Un problème auquel les résistants allemands au régime hitlérien et les résistants des pays occupés pendant la guerre de 1939-1945 ont apporté une réponse qu’ils ont souvent payée de leur vie. Le droit positif ne justifie pas tout, le droit positif n’excuse pas tout: rien, par exemple, ne saurait justifier ou excuser une législation prévoyant un génocide ou une discrimination raciale. La législation raciste de l’Allemagne hitlérienne et le statut des Juifs du régime français de Vichy n’étaient-ils pas, après tout, du droit positif? Un génocide organisé par la loi deviendrait-il pour autant légitime? C’est l’honneur des juristes de ne pas toujours s’incliner devant le droit positif. C’est l’honneur des juristes de tirer la sonnette d’alarme et d’exhorter les politiques à agir avant que la victime ne devienne une victime. Et c’est l’honneur de Michael Reisman d’avoir jeté son immense autorité, morale autant que juridique, dans ce débat éternel.

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Chapter 4 Michael Reisman, Human Dignity, and the Law Siegfried Wiessner*

Words cannot do justice to the man who has transformed the lives of so many of us who have contributed to the present volume of essays in his honor. But words are all we have to share our feelings, as we must, over space, and over time. Michael Reisman is the man we have the pleasure and deep satisfaction to honor and to celebrate: our teacher, our guide, our mentor, our friend. He has touched our lives in a variety of ways. In my case, the introduction to his magnificent work was made by a young South African scholar at the Peace Palace in The Hague, and I never looked back. His jurisprudence of insight and empowerment was a liberation indeed—a fountain of truth on how law is really made and changed, and a treasure trove of wisdom on what considerations should guide the decisions we consciously and unconsciously make. He made us, who call themselves professionals of the law, realize that we are not mere bouches de la loi; he challenged us to live up to the role we actually play in society and to assume the responsibility that comes with leadership. This statement of friendship and respect is designed to highlight our honoree’s distinct place in the pantheon of jurisprudence (Part I); his keen sense of observation and analysis (Part II); his consummate skills of communication (Part III); and his abiding quest for a public order of human dignity (Part IV). I. The subtitle to Michael Reisman’s book Jurisprudence says it best: Jurisprudence is about “understanding and shaping” the law.1 Understanding what is called “the law” means going outside of our inherited lenses of observation narrowed to commands of the sovereign in the modern nation-state; it means removing those blinders and setting out to grasp the reality of what is called “the law” in the “manifold of events” *

1

This essay is a slightly revised rendition of my remarks made at the April 24, 2009 Yale Law School conference in honor of W. Michael Reisman and published at 34 Yale J. Int’l L. 525 (2009). W. Michael Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping Law (1986).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 21-29.

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that constitute the social process on this planet.2 Law is a process of authoritative and controlling decision;3 within that process, the lawmaking function is essentially a process of communication.4 It focuses on messages of policy content, i.e., decisions, sent by persons with authority within a certain community to members of that community, messages backed up by a threat of severe deprivation of values or a high expectation of indulgences or benefits.5 It allows us to move from theories “of ” law, in the vein of Kelsen, Montesquieu, von Savigny, and Rawls, to, more appropriately, theories “about” law6—in diverse communities over space and time, from the global to the local, from the personal to the territorial, from the permanent to the shortlived7—beyond, but including, the community that is still key to the distribution of values and resources today: the nation-state.8 Within those communities, it demands a focus on the realities of authority and control, eschewing naked power and pretend law. This opening of the eyes of lawyers to the empirical context of their professional lives was originally conceived in the most fruitful cooperation between Harold Dwight Lasswell and Myres Smith McDougal,9 a collaboration that started in the 1930s. They shattered the walls of separation between their original home disciplines—political science and psychology (Lasswell) vs. the law (McDougal)—as they developed a powerful intellectual framework for the analysis of social problems and the development of solutions to them through law, a framework that included the orienting concept of eight human values encompassing the totality of human aspirations. In the early 1960s, Michael Reisman joined this creative enterprise that has come to be known variously as the “New Haven School,” “Policy-Oriented Jurispru-

2 3 4 5 6

7 8

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Harold D. Lasswell, Psychopathology and Politics 240-67 (1930) (focusing on events within and among individuals that engender social process of communication). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. Legal Educ. 253 (1967). W. Michael Reisman, International Law-Making: A Process of Communication, 75 Am. Soc’y Int’l L. Proc. 101 (1981). See W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575 (2007). W. Michael Reisman, A Theory About Law from the Policy Perspective, in Mark MacGuigan et al., Law and Policy 75 (David N. Weisstub ed., 1976) [hereinafter Reisman, Law from the Policy Perspective]; W. Michael Reisman, Theory About Law: The New Haven School of Jurisprudence, 1989/90 Wissenschaftskolleg Jahrbuch 228 [hereinafter Reisman, Theory About Law]. For an overview, see Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807 (1988). While other communities gain ever more importance, states remain the primary organizations and value providers. W. Michael Reisman, Designing and Managing the Future of the State, 8 Eur. J. Int’l L. 409, 416 (1997). For details of their cooperation, and the content of their jurisprudence, see Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (1992).

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Siegfried Wiessner, Michael Reisman, Human Dignity, and the Law

dence,” or “Law, Science, and Policy.”10 He has left his imprint on that theory about law. It is centered around him today. II. Michael Reisman’s unique contributions have been fueled by his keen and incorruptible sense of observation which helps him analyze most effectively the special process of communication that the law constitutes. Some of the most compelling samplings of his observations are to be found in the book Law in Brief Encounters.11 As he describes how law, albeit “micro-law,” is made by the signaling of expected behavior between ordinary persons who look, gaze, or stare at each other, or just happen to stand in line (i.e., law made in quite fleeting types of momentary community), one can only marvel at the acuity with which Reisman isolates pertinent types of conduct, articulates the motivations underlying them, and draws inferences from those observations regarding normative expectations among the group’s members. Like all those using the approach, he is interested in real encounters, real people, and real relationships; the discussion is about real resources and the distribution of real values. This extraordinary faculty of discerning observation may also have spurred him to develop the genre of incident studies,12 a useful tool in determining lawfulness of conduct between states as they signal approval or disapproval of certain unilateral claims put forward by other states in justification of certain key actions, called “incidents.” This process may help to clarify the content of what traditionally is called “customary international law” in the field.13 More generally, his quest for empirical truth has led him to sharpen the distinction between the “law on the books” and the “law in action,” deepening Karl Llewellyn’s contribution with the difference between what Reisman has called the “myth” and the “operational code.”14 This realist view of the law is applied, most convincingly, in his

10

11 12 13 14

These terms have been used interchangeably to designate this unique configurative, problem- and policy-oriented theory about law. See, e.g., Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188 (1968); Reisman et al., supra note 5, at 575 n.2 (referring, inter alia, to the classical statement of the approach in Lasswell & McDougal, supra note 9); Reisman, Law from the Policy Perspective, supra note 6; Reisman, Theory About Law, supra note 6; Siegfried Wiessner & Andrew R. Willard, PolicyOriented Jurisprudence, 44 German Y.B. Int’l L. 96 (2001). W. Michael Reisman, Law in Brief Encounters (1999). W. Michael Reisman, International Incidents: Introduction to a New Genre in the Study of International Law, 10 Yale J. Int’l L. 1 (1984). W. Michael Reisman & Andrew R. Willard, International Incidents: The Law That Counts in World Politics (1988). W. Michael Reisman, Myth System and Operational Code, 3 Yale Stud. World Pub. Ord. 229 (1977).

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contribution to the 1981 International Law Essays book, co-edited with McDougal,15 where Reisman uses the approach to determine the real figures of authority and control in an imagined community—a quest far beyond the inherited search for written constitutional or statutory legitimacy. Folded Lies,16 a book about bribery translated into a number of languages, including Spanish, Russian, and Japanese, confirms, at the example of corrupt societies vividly illuminated, the global validity and appeal of such a distinction between what the law pretends to be and what it really is. Whether the incidents put forward are historical or imagined, Michael Reisman uses them most skillfully to make his point—the hallmark of a superb communicator. As appropriate, and highlighted by science itself, Reisman acknowledges inherent limits to the claim to objectivity of the scientific method. He recommends that the observer take a thorough look inside him- or herself and clarify his or her “observational standpoint”17 vis-à-vis the objects of observation. Those lenses might be skewed by genetics, upbringing, class, gender, race, location at the center or the periphery of society, etc. He does not suggest a goal of a total exclusion of such predispositional factors from the process of decisionmaking, as this would be unrealistic. Rather, he would recommend that the observer and, in law, the decisionmaker, make him- or herself aware of these factors, particularly potential biases that might distort or otherwise influence his or her decision. Upon this critical self-assessment, Reisman then recommends that the scholar perform a number of important tasks that would help him or her achieve the goal of solving problems in a most rational and comprehensive, or as the classical New Haven School would say, “configurative,” way. These tasks include: (1) the exact delimitation of the problem in the light of all of its parameters in order to reach the intended goal; (2) the analysis of conflicting claims, claimants, perspectives, identifications, bases of power, etc.; (3) the identification of past trends in decision in light of their predispositional and environmental conditioning factors; (4) the prediction of possible future decisions based on developmental constructs oscillating between the most pessimistic and the most optimistic scenarios; and (5) insofar as the projection of probabilities suggests a discrepancy from goals, the invention of alternatives and the recommendation of solutions.18 Those who use the techniques of the New Haven School are always guided by the overriding concept of a global public order of human dignity, which sets as its goal the maximization of access by all to all the values humans desire,19 i.e., the things they want out of life (and not just those things they need as determined usually by someone other than themselves). 15 16 17 18 19

W. Michael Reisman, Law from the Policy Perspective, in Myres S. McDougal & W. Michael Reisman, International Law Essays 1 (1981). W. Michael Reisman, Folded Lies: Bribery, Crusades, and Reforms (1979). W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118, 120 (1992). See id. at 123-24. W. Michael Reisman, Development and Nation-Building: A Framework for Policy-Oriented Inquiry, 60 Me. L. Rev. 309, 311-12 (2008); Siegfried Wiessner, International Law in the 21st Century: Decisionmaking in Institutionalized and Non-Institutionalized Settings,

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The unique virtue of this intellectual framework is that it allows all aspects of a problem to be addressed—to know the entire playing field and all the players. Legislators are well served in undertaking this analysis before prescribing solutions to pressing social problems. More often than not, their view of the issues is clouded by lobbyists representing powerful organized constituents; the interests of many in the public at large are overlooked because they are not effectively represented. Applying the New Haven approach would make sure that all the conflicting claims and claimants are being taken into account. However, whereas McDougal and Lasswell have put great emphasis on the importance of the use of the metalanguage needed to convey this taxonomy to achieve a measure of ever greater precision, Michael Reisman— outside of his writings dedicated to theory—often does not apply the framework and its terminology expressly. While this empowering methodology undergirds much of his writing, he does not feel compelled to always use some of its specific terminology, and does what he does best: capture the audience with his unmatched mastery of the English language and any subject matter he chooses to address. III. When Michael Reisman starts to speak, the room falls silent. Any sentence he utters on a podium can be safely entered into an article or a book. He does not need a teleprompter or a manuscript to achieve this effect. His skillful and precise use of words from an immense vocabulary—not only in his native tongue, but also from the numerous other languages he speaks—stills the audience into rapt attention. Most recently, he came to Miami to speak on the Cuban embargo. To a mesmerized audience, he declaimed: “Bear in mind that when you destroy an economy, you destroy lives, you destroy families; it has its own epidemiology. It is wrong to pretend that it is a ‘peaceful’ strategy.”20 More often than not, he sees aspects of the problem that others have overlooked. This attention he commands is not only due to his uncommon skills of oratory. Audiences listen to Michael Reisman because they sense the authenticity of his convictions and the wisdom of his message. His commitment to the truth and human values shines through every word he speaks. He is beyond pettiness and dedicated to the rationality of the discourse. That is why even many of the “natural opponents” of the New Haven approach hold him in highest esteem, as is reflected in the enthusiastic response we have received from amongst international lawyers of all jurisprudential stripes to the project of a Festschrift in his honor. Michael Reisman is convinced of the analytical power and the creative potential of the New Haven approach. No other approach holds similar promise if the task of lawyers is seen as devising solutions to social problems. He is, however, open to any

20

26 Thesaurus Acroasium 129, 144-45 (1997); Siegfried Wiessner & Andrew R. Willard, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 93 Am. J. Int’l L. 316, 333-34 (1999). W. Michael Reisman, Sanctions and International Law, 4 Intercultural Hum. Rts. L. Rev. 9, 20 (2009).

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other frameworks or suggestions that might do a better job. Referring to Chairman Deng Xiaoping and the Chinese proverb he made famous, he stated recently: It does not matter whether a cat is black or white but whether it catches mice. Our loyalty is to the values of human dignity and our goal is a world order producing and distributing those values. The New Haven School was established to refine and apply tools to achieve that goal. If there is a better cat around, we would be the first to use it. As far as we have been able to tell, there is not.21

The touchstone of a good theory is its practical application. Or, as Reisman quotes Kurt Lewin in the introduction to his Jurisprudence book: “There is nothing so practical as a good theory.”22 In the practice of law, beyond the area of explicit legislation or regulation, the application of such prescriptions often takes place in a highly institutionalized environment which mandates adherence to certain pressures of role and structure of argument. In order to reach the goals the explicitly value-oriented New Haven School postulates, such environmental restrictions need to be heeded to be at all effective. That is why it is not surprising that Reisman applies traditional legal methodologies to the solution of problems he has to solve when he performs the function of an arbitrator23 or when he addresses courts both domestic and international. The parties come to these highly structured fora with expectations about the content of the prescriptions applied to their dispute, and they ought not to be surprised by a decision ex aequo et bono when they have not accorded the decisionmaking body any such power. Thus it comes as no surprise that Reisman has applied traditional forms of legal argument, especially interpretation, in the many cases he has been called on to serve as an arbitrator or as counsel to arbitration and litigation. That is the dialect spoken in these fora; it is the only cat around. To the extent that it allows for creative argument, e.g., regarding the policy interpretation of open-ended prescriptions, it still leaves room for effective use of New Haven’s configurative jurisprudence. IV. Ultimately, Michael Reisman is dedicated to the goals of a world order of human dignity. He does not content himself with mere observation and empirical research of interesting phenomena. He makes judgments on whether the phenomena described, 21 22 23

Reisman et al., supra note 5, at 582. Reisman & Schreiber, supra note 1, at 1. Michael Reisman laid a solid foundation for his influential arbitral practice in his magisterial J.S.D. thesis, W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (1971). See also W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (1992); The Reasons Requirement in International Investment Arbitration (Guillermo Aguilar Alvarez & W. Michael Reisman eds., 2008).

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in particular, certain types of human conduct, by individuals or groups, should persist in light of the values of human dignity.24 This position in favor of a world order of human dignity has been caricatured as serving as the international legal spearhead of the U.S. government, or at least its handmaiden, in the Cold War. Certain stances taken by McDougal and Reisman were controversial, particularly regarding instances of American use of force.25 Strong battles of opinion raged over the Vietnam War, even amongst early adherents of the approach.26 What is often overlooked in the evaluation of these struggles is the fact that the approach’s guiding light, defined as an order which maximizes access by all persons to all the values of human dignity, is much more complex and multifaceted than many critics care to explore. Throughout his life, Michael Reisman, has adhered to the principle that an ideal legal order should allow all individuals, and particularly the weakest among them, to realize themselves and accomplish their aspirations. His early writings, in 1968, articulate the lawfulness of international concern over Ian Smith’s Southern Rho-

24

25

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W. Michael Reisman, Autonomy, Interdependence and Responsibility, 103 Yale L.J. 401 (1993) (commenting on Walter Otto Weyrauch & Mauren Anne Bell, Autonomous Lawmaking: The Case of the “Gypsies,” 103 Yale L.J. 323 (1993)). See, for example, McDougal and Reisman’s advocacy of humanitarian intervention to stop mass slaughter, genocide, and other massive violations of fundamental human rights—as in the case of Biafra—or to rescue nationals, as in the Entebbe and Tehran Hostage Rescue incidents. W. Michael Reisman, Humanitarian Intervention To Protect the Ibos, reprinted in Humanitarian Intervention and the United Nations (Richard B. Lillich ed., 1973) (prepared in 1968 as a petition to the United Nations written with the collaboration of Myres S. McDougal) [hereinafter Reisman, Ibos]; Myres S. McDougal & Michael Reisman, Letter to the Editor, The Entebbe Rescue and International Law, N.Y. Times, July 16, 1976, at 16; Michael Reisman, Exchange: The Rescue Mission: Humanitarian Intervention, 230 The Nation 612 (1980); see also W. Michael Reisman, Editorial Comment, Coercion and Self-Determination: Construing Charter Article 2(4), 78 Am. J. Int’l L. 642 (1984); W. Michael Reisman, Editorial Comment, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866 (1990). For more recent, significant statements on the lawfulness of the use of force, see W. Michael Reisman & Andrea Armstrong, The Past and Future of the Claim of Preemptive Selfdefense, 100 Am. J. Int’l L. 525 (2006); W. Michael Reisman, Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 Eur. J. Int’l L. 3 (2000); and W. Michael Reisman, Why Regime Change Is (Almost Always) a Bad Idea, 98 Am. J. Int’l L. 516 (2004). Compare John Norton Moore, Law and the Indo-China War (1972), and John Norton Moore, Intervention: A Monochromatic Term for a Polychromatic Reality, in 2 The Vietnam War and International Law 1061 (Richard A. Falk ed., 1969), with Richard A. Falk, International Law and the United States Role in Viet Nam: A Response to Professor Moore, in 1 The Vietnam War and International Law, supra, at 445. Reisman was not an active participant in that debate.

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desia27 and the situation in South West Africa.28 With Myres McDougal, the same year, he asserted the continuing validity of humanitarian intervention—now a staple of international law, after Kosovo and Rwanda—in the case of the bloodily crushed attempt of the Ibos to secede from Nigeria,29 hardly an imperialist proposal. In 1971, he promoted ratification of the International Convention on the Elimination of All Forms of Racial Discrimination,30 as well as taxing businesses for human rights.31 His consistent struggle against bribery32 makes him scarcely a proponent of Washington realpolitik. He was concerned about unauthorized coercion in 1983,33 and he issued a passionate plea for an absolute prohibition of torture in 2006.34 He has thought and written about some of the most vulnerable communities, indigenous peoples, since the early days of his career.35 He suggested listening to their voices, to explore their “inner worlds,”36 to heed their cries about the taking of their lands, the disappearance of their language, the termination of their ways of life. As the President of the Inter-American Commission on Human Rights, he oversaw the drafting of a proposed American Declaration on the Rights of Indigenous Peoples37—a project that, unfortunately, has languished since his departure and sterling leadership. He drew attention to the often dire effects of economic sanctions on the people of the targeted countries.38 In his complete redrafting of the casebook International Law in Contemporary Perspective, that I had the pleasure of co-authoring, he decided to

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31 32 33 34 35 36 37

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Myres S. McDougal & W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern, 62 Am. J. Int’l L. 1 (1968). W. Michael Reisman, Revision of the South West Africa Cases, 7 Va. J. Int’l L. 1 (1966). See Reisman, Ibos, supra note 25. W. Michael Reisman, Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination, 1 Denv. J. Int’l L. & Pol’y 29 (1971). Michael Reisman, Polaroid Power: Taxing Business for Human Rights, Foreign Pol’y, Fall 1971, at 101. Reisman, supra note 16; W. Michael Reisman, Campaigns Against Bribery, Yale Alumni Mag., Feb. 1979, at 17. W. Michael Reisman, The Tormented Conscience: Applying and Appraising Unauthorized Coercion, 32 Emory L.J. 499 (1983). W. Michael Reisman, Editorial Comment, Holding the Center of the Law of Armed Conflict, 100 Am. J. Int’l L. 852 (2006). W. Michael Reisman, International Law and the Inner Worlds of Others, 9 St. Thomas L. Rev. 25 (1996). Id. at 30. Proposed American Declaration on the Rights of Indigenous Peoples, Inter-Am. C.H.R., OEA/Ser.L./V/II.95, doc. 6 (1997), reprinted in 6 Int’l J. Cultural Prop. 364 (1997); W. Michael Reisman, Protecting Indigenous Rights in International Adjudication, 89 Am. J. Int’l L. 350 (1995). W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int’l L. 86 (1998).

4

Siegfried Wiessner, Michael Reisman, Human Dignity, and the Law

include a central chapter on human rights and place it ahead of the traditional section on the “Allocation, Protection and Regulation of Use of the Resources of the Planet.”39 The priorities are thus set straight: Michael Reisman, as he stated in his 2007 General Course on International Law at The Hague Academy, sees the international lawyer of the twenty-first century as a “world citizen.”40 For those of us committed to a world order of human dignity, he, however, is indeed more than a citizen: Michael Reisman, the realistic idealist, is a beacon of hope, a bridge between cultures, a light in troubled waters. We are blessed to know him, and to count him as a friend. We wish for many more years of his enlightened leadership.

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W. Michael Reisman et al., International Law in Contemporary Perspective 445 (2d ed. 2004). W. Michael Reisman, Hague Academy, General Course on Public International Law: International Law in the Twenty-First Century (Summer 2007) (unpublished Background Materials), available at http://www.ppl.nl/summercourses/2007/reisman.doc.

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Part II Theory About Making and Applying Law

Chapter 5 Law as a Process of Communication: Reisman Meets Habermas Adeno Addis*

I. Introduction It might seem extraordinarily fanciful to suggest that Michael Reisman and a prominent member of the Frankfurt School of Critical Theory,1 the German social theorist Jürgen Habermas,2 are actually cousins. No, not the sorts of cousins you are probably thinking of, but methodological cousins. Distant cousins to be sure, but cousins nonetheless. Reisman is probably shocked about this new genealogy. I am asserting that his approach to law has similarities to a theorist who is dauntingly abstract and whose approach to the construction and explication of norms (legal or otherwise) seems, in good Kantian fashion, to be from the top down. Compare him to the author of

*

1

2

This is a lightly revised version of a paper presented at the conference entitled “Realistic Idealism in International Law: A Conference in Honor of W. Michael Reisman,” held at Yale Law School on April 24, 2009. The Institute of Social Research, the Frankfurt School as it became known, was established in 1923 and affiliated with Frankfurt University. The most well known of its members were Theodor W. Adorno (1903-1969), Max Horkheimer (1895-1971), Herbert Marcuse (1898-1979) and Friedrich Pollok (1894-1970). For a history of the school and the role of its leading members, see Martin Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social Research, 1923-1950 (1973); David Held, Introduction to Critical Theory: Horkheimer to Habermas (1980); and Tom Bottomore, The Frankfurt School (1984). Although Habermas is often referred to as “the heir to the Frankfurt School,” his affiliation with the school is more ambiguous. And yet to a large extent his work can be said to be engaged in the reconstitution of the idea of critical theory in which the founders of the school were engaged. See Thomas McCarthy, Ideas and Illusions: On Reconstructing and Deconstructing in Contemporary Critical Theory (1991). The phrase “heir to the Frankfurt School” is taken from Michael Pusey, Jürgen Habermas (1987).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 33-50.

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Brief Encounters,3 the introductory essay to Incidents,4 and the 1981 Harold Lasswell Lecture,5 for whom the relevant legal landscape can only be given full accounting with a painstaking description and evaluation of events and the reaction of participants to those events. Put simply, Reisman’s approach seems to be one of working from the bottom up. Reisman starts from the event—the incident (whether individual or institutional)—to understand how law develops, is transformed, and terminated. A closer examination of the works of the two authors, however, shows that in fact both are engaged in finding ways to mediate between the factual world and the normative world (as Habermas would put it between facticity and normativity).6 Habermas does not entirely go from top down. For Habermas, it is understanding ordinary communications—speech acts as he calls them—that allow us to develop, counterfactually to be sure, a defensible theory of law. Thus neither Reisman nor Habermas think that one develops norms abstractly nor do they go the other way where the normative world is collapsed into the factual world. Each is engaged in a complex attempt to mediate between the real world of social and political life and the normative world of possibilities. For both, the success of that mediation is what gives law its legitimacy. What I want to touch on in this brief essay is to inquire into how each does that mediation and hence how each defends the legitimacy of legal norms. But before I engage in that narrow task, let me briefly outline four general similarities between Habermas’s discourse theory of law and Reisman’s theory of law as communication. II. Similarities: Preliminary Observations –

–

3 4

5 6

7

First, as I just noted, each attempts to derive a defensible theory of law by exploring one of the most vital and yet ordinary processes in our social life—the process of communication. That is, each starts to construct his theory from what we ordinarily do, not from what Reisman calls “the innumerable ‘you oughts’ and ‘you shoulds’ that we hear and ignore every day.”7 In the same way that ordinary communication is a vital means of social coordination, each views law as an important means of such coordination, especially in an environment of pluralized world views, in a world where there is fragmenta-

W. Michael Reisman, Law in Brief Encounters (1999). W. Michael Reisman, International Incidents: Introduction to a New Genre in the Study of International Law, in International Incidents: The Law that Counts in World Politics 3 (W. Michael Reisman and Andrew Willard eds. 1988). W. Michael Reisman, International Law Making: A Process of Communication, 75 Proc. Am. Soc’y Int’l L. 101 (1981). See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans., 1996). “Facticity and normativity” refers to the literal translation of the German title of the book which has been translated as “Facts and Norms.” Id. at xi. Reisman, supra note 3, at 39.

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

–

–

8

9 10

11

12 13

tion in shared identities. “Law is a property of interaction,”8 observes Reisman. And Habermas compares the functions of law to that of a ‘transmission belt’ “that picks up structures of mutual recognition that are familiar from face to face communication and transmits [them], in an abstract but binding form to the anonymous, systematically mediated interaction among strangers.”9 To think of prescription10 as a process of communication is to view it as a continuing and dynamic process rather than a static will at the original moment of norm founding.11 Because in the process of continuous communication (interaction), it is not just the nature of the message that may be adjusted12 but the identity of the messengers and the recipients of the message as well. Reisman captures this well. Institutions, structures and even communicators themselves are “products of an ongoing [communicative] process.”13 Law as communication, therefore, allows Reisman and Habermas to see, perhaps more than realists and positivists are able to do, that lawmaking is simultaneously a means of doing and a means of being. Just like ordinary communication, each views the emergence of law as a two way process where the addressees of the communication have a role in whether or not the signal sent by the communicator is regarded as authoritative. Reisman, Id. at 2. “Real law is generated, reinforced, changed, and terminated continually in the course of almost all of human activity.” Id.; see also id. at 175 (“More generally, understanding the dynamics of microlegal systems may be a prerequisite for the effective operation of a heterogeneous of modern society.”). Clearly, it is not accidental that Reisman developed his theory of communication in a lecture honoring Lasswell, for Reisman owes some debt to Lasswell on this issue. Lasswell had a life-long interest in the role communication played in the social process. See Harold D. Lasswell, The Structure and Function of Communication in Society, in The Communication of Ideas 37 (Lyman Bryson ed., 1964) (“Who said what in what channel to whom with what effect?”). For Habermas’s view, see Habermas, supra note 6, at 448 (“law fulfils socially integrative functions”). Habermas, supra note 6, at 448. See Myres M. McDougal & W. Michael Reisman, The Prescribing Function in the World Constitutive Process: How International Law Is Made, in International Law Essays: A Supplement to International Law in Contemporary Perspective 355 (Myres M. McDougal & W. Michael Reisman eds., 1981) (“The making of law is a decision function which may be conveniently described as prescription.”). See Reisman, supra note 5, at 113 (The most important implication of the communication model of prescribing is, for Reisman, that “it is a continuous process. Prescriptions, as such, never have the finality and permanence attributed to the decrees of Medes and Persians”). Id. at 114 (“New prescriptions frequently arise from violations of existing prescriptions”). W. Michael Reisman, Theory About Law: Jurisprudence for a Free Society, 108 Yale L.J. 935, 937 (1999). And according to Habermas, “the rules of law and politics are (factually) and should be (normatively) open ended and subject to the constant and perpetual discussion, evaluation and transformation of the rules of social life.” John P. McCormick, Habermas’ Discourse Theory of Law: Bridging Anglo-American Law and Continental Legal Tradition, 60 Mod. L. Rev. 734, 739 (1997).

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for example, notes, “[i]t is the audience that…endows the prescriber with the authority that renders his communication prescription.”14 In another place he says, “[t]he Copernican Revolution in McDougal’s jurisprudence was unseating rules as mechanism of decision and installing the human being—all human beings, to varying degrees—as deciders.”15 And Habermas puts it this way: “the modern legal order draws its legitimacy only from the idea…[that] citizens…understand themselves as authors of the law to which they are subject as addressees.”16 In both schemes, the addressees, the audience, bestow authority on the communicator. How that is precisely done is a more complex question to which I shall return later and examine briefly.17

36

Having given a general outline of similarities which I have not defended here, but hope to do so elsewhere,18 let me turn to a narrower issue, namely, how the notion of law as communication in both Reisman’s and Habermas’s versions deals with how authority is legitimated. In relation to Reisman’s theory I shall mainly rely on three pieces where the notion of law as communication is explicitly and fully developed— his 1981 Harold Lasswell Memorial Lecture, his book Law in Brief Encounters, and his introductory essay in International Incidents. In these three works Reisman sets out clearly and forcefully the features of law as communication. The Lasswell Lecture frames the general issue and presents the outlines of a communication theory of law in the clearest of ways. Brief Encounters gives a detailed and fascinating application of the theory to the emergence and transformation of norms in what Reisman calls the civic order—microlaw as he refers to it. If the Lasswell Lecture was the crisp and elegant statement of the outline of law as communication, his Law in Brief Encounters is in my judgment the body, the acute empirical insights, that neatly fills that outline. The Incidents essay can reasonably be understood as the theory’s application in relation to the emergence of international legal norms—one aspect of macro law.

14 15 16 17

18

Reisman, supra note 5, at 110. Reisman, supra note 13, at 937. Habermas, supra note 6, at 440. Viewing law in this manner might have some affinity to H.L.A. Hart’s notion of the internal point of view of law as a function of law’s legitimacy or social recognition, but I shall leave that issue for another day. For the notion of the internal point of view, see H.L.A. Hart, The Concept of Law 88-91, 242-43 (2d ed. 1994). Hart’s descriptive theory of law distinguishes between two possible attitudes that one can take toward legal norms: external and internal points of view. One has an external point of view if one is simply an observer of the norm but does not consider the norm as binding. On the other hand, one takes an internal point of view if one accepts the norm and takes it as a guide for one’s conduct. Id. I plan to defend these propositions in another article that is tentatively titled “Communicating Authority: A Discourse Theory of Law.”

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

In relation to Habermas, I will rely mainly on his book Between Facts and Norms: Contributions to the Discourse Theory of Law and Democracy19 where one finds the fullest statement of his theory of law. III. The Outline of Law as a Process of Communication: Reisman’s Narrative In the Lasswell Lecture, Reisman explicitly affirms that law is a process of communication. “Put in simple terms,” he says “lawmaking or the prescribing of policy as authoritative for a community is a process of communication.”20 If lawmaking is a process of communication, how do we distinguish lawmaking from multiple other forms of communications? After all, our social and political world is full of communications from various actors with different messages, with varying intents and objectives and with varying degrees of effectiveness. The virtue of seeing lawmaking as a process of communication is that it allows us to broaden (and hence be more accurate in our description of ) participants in lawmaking and the arenas in which law is made. This was clearly part of the aim of Brief Encounters and to some extent the introductory essay in Incidents—to show the various ways in which legal norms emerge. But, of course, the promise of flexibility, contextuality21 and comprehensiveness that the idea of law as a form of communication is meant to usher in threatens to make law indistinguishable from other forms or media of communication. Reisman advances the following precise formulation to distinguish lawmaking communications from other communications: “What is distinctive about prescriptive or lawmaking communications is that rather than transmitting a single message, they carry simultaneously three coordinate communications flows: policy content [with varying degree of clarity], the authority signal [that the communicator had the authority to prescribe22] and the control intention [‘the capacity and willingness to make a preferential expression effective’23].”24 Each of the three elements is a necessary condition for there to be prescription. The absence of one of the elements would deny a communication its prescriptive power. Or a prescription would cease to be if one of the elements has faded away.25 19 20 21 22 23 24

25

Supra note 6. Reisman, supra note 5, at 105. What Reisman calls the “dynamism of context.” See Reisman, supra note 13, at 936. Reisman, supra note 5, at 110 Id. at 110 (“determining control intentions requires, perforce, as comprehensive as possible, a survey of the power process and the interest of those who are most effective in it”). Id. at 108; see also Reisman, supra note 3, at 156 (“Lawmaking is an ongoing process of communication: the content, the authority, and the sanction threat are modulated in many formal and informal settings.”); McDougal & Reisman, supra note 10, at 355-56. Reisman, supra note 5, at 108 (“Unless each of the three flows is present and effectively mediated to the relevant audience, a prescription does not result. Equally important, even if the three components are initially communicated, they must continue to be communicated for the prescription, as such, to endure; if one or more of the components

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IV. Authority and Legitimacy 38

For my purpose here, the element that is intriguing is “authority signal.”26 It is with this that the founders of the New Haven School (and Reisman) seem to have broken with (and sought to rescue) legal realism—the notion that average compliance is synonymous with law. Validity is not simply a matter of the empirical world of enforcement, but it is also one of subjective recognition. As Max Weber long ago put it, to obey law is not simply to comply with it; it is also to be guided by it “as if the ruled had made the content of the command the maxim of their conduct for its very own sake.”27 But how does it emerge that the communicator has the authority to prescribe? That is, what endows the communicator with the authority to prescribe? Here in my view is the central issue of legitimacy.28 If you are John Austin you say it is the sovereign.29 If you are an institutionalist, you point to the relevant institution.30 If you are

26 27

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should cease to be communicated, the prescription undergoes a type of desuetude and is terminated.”). Partly because this is the addition to Lasswell’s “who said what in which channel to whom with what effect?” 2 Max Weber, Economy and Society 946 (G. Roth & W. Wittich eds., 1963); see also Habermas, supra note 6, at 448 (“A legal norm has validity whenever the state guarantees two things at once: on the one hand, the state ensures average compliance, compelled by sanctions if necessary; on the other hand, it guarantees the institutional preconditions for the legitimate genesis of the norm itself, so that it is always at least possible to comply out of respect for the law.”). By “legitimacy” I mean to refer to a legal order’s worthiness to be recognized. This is similar to Jürgen Habermas’s description of the legitimacy of a political order. See Jürgen Habermas, Communication and the Evolution of Society 178 (Thomas McCarthy trans., 1979). (“Legitimacy means that there are good arguments for a political order’s claim to be recognized as right and just; a legitimate order deserves recognition. Legitimacy means a political order’s worthiness to be recognized.”). See John Austin, The Province of Jurisprudence Determined (H.L.A. Hart ed., 1955) (1832) (“[E]very positive law (or every law strictly and properly so called) is set, directly or circuitously, by a sovereign individual or body, to a member or members of the independent political society … to a person or persons in a state of subjection to its author.” Id. at 13. And these laws are backed by the sovereign’s power to “inflict an evil or pain” as a sanction.” Id at 350; see also Thomas Hobbes, Leviathan 189 (Richard Tuck ed., 1988). (“Nor is it enough the Law be written and published; but also that there be manifest signs, that it proceedeth from the will of the Sovereign. For private men, when they have or think they have force enough to secure their unjust designes, and convoy them safely to their ambitious ends, may publish for Lawes what they please without, or against the Legislative Authority. There is therefore requisite, not only a Declaration of the law, but also sufficient signes of the Author, and Authority.”) For Hobbes, those signs would include “publique Registers, publique Counsels, publique Ministers and publique Seals.” Id. at 189. For an account of an institutionalist view of law, see Neil MacCormick, Institutions of Law: An Essay in Legal Theory (2007). There are of course varieties of institu-

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

unreconstructed realist you simply drop the authority signal requirement and you go with the effective power.31 Or, more likely, you collapse authority into effective power. If you are a Hartian or Kelsenian positivist, you locate the rule of recognition32 or the Grundnorm33 respectively. In a very interesting and important passage in the Lasswell Lecture, Reisman begins to answer the question of authority. After noting that the idea of authority signal and how it comes to be are complex issues, he observes that “[i]t is the audience that…endows the prescriber with the authority that renders his communication prescription.”34 Put simply, whatever authority the communicator possesses flows from the audience. But how precisely do the targets of communication (the audience) endow the communicator with such authority? And conversely, how does the audience terminate the authority such that the signal that is sent by the communicator is no longer viewed or accepted as authoritative. Reisman notes that “the search for authority must be empirical in the broadest sense” and that is to be contrasted with what he refers to as “merely documentary.”35 It is not quite clear what the precise distinction between an inquiry that is “empirical in the broadest sense” and one that is “merely documentary” is, but for our purpose what matters is that the inquiry into the nature of authority is empirical rather than conceptual. It is to be found in the interactive process between sender and recipient.

31 32

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tionalists, from those who consider the institutional status of a norm (the behavior of an institution) as a sufficient condition to those who view it as a necessary or simply relevant condition to determine whether or not a norm is legal. The behavior of the institution could be as a norm issuer and/or a norm user. MacCormick seems to take the view that the institutional status of norms is a necessary but not a sufficient condition for its legality. Id. at 252-61. Hans Morgenthau, Positivism, Functionalism, and International Law, 34 Am. J. Int’l L. 260 (1940). John Finnis, for example, observes that “the rule of recognition … is the answer, ultimate for Hart’s legal theory, to the question ‘What is the reason for the validity of the highest rule of change of this legal system?’” John Finnis, On Hart’s Ways: Law as Reason and as Fact, 52 Am. J. Juris. 25, 44 (2007); see also H.L.A. Hart, The Concept of Law 91-99 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994). Hart introduces the concept of a “rule of recognition” in the context of discussing how the emergence of secondary rules may remedy some of the inadequacies of social regimes that are organized simply on the basis of primary rules. “The simplest form of remedy for uncertainty of the regime of primary rules is the introduction of what we shall call a ‘rule of recognition.’ This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.” Id. at 92. Hans Kelsen, Pure Theory of Law 201 (Max Knight trans., 2002). Unlike the “rule of recognition” which Hart took as a social fact (a social practice), the Grundnorm for Kelsen is a theoretical or logical postulate which is presupposed so as to secure a basis of a chain of validation. Reisman, supra note 5, at 110. Id. at 110.

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40

Understanding how precisely authority is bestowed becomes essential not only because we want to get the descriptive part of the project correctly, but also because to the extent that realistic jurisprudence is also about shaping the world36 it would be important to know how authority emerges and declines. We would then know one pressure point. Even more importantly, the process of explaining why and how addressees of the communication endow the communicator with the authority will allow us to determine whether as an empirical matter there is in fact such bestowal of authority in the particular circumstance. There are a number of alternative ways of imagining how the audience could be said to endow the communicator with authority. First, it might be that the source of authority is an expectation that is shaped by a similar communication from the particular communicator in the past and that such communication had invariably led to a circumstance that had made it clear that the communicator is willing and able to make his preferential expression effective. This is what one may refer to as the precedential view of authority. Precedent endows the communicator’s signal an aura of authority. Authority emerges as a result of repeated displays of effective power. But on reflection, it was not the precedent that had an independent gravitational pull. Rather, it is the fact that the communicator was willing and able to make his preferences stick that persuaded the addressee to think that he or she had better heed and comply with the message. But this reading threatens to make the authority signal superfluous, at least at the initial stage. The authority bestowed on the source of the communication (the communicator) would not have been for a reason that is independent of the fear of sanction. However, that is precisely what the authority signal as an independent and necessary element is meant to provide. The second, and perhaps a more promising reading, is that the communicator at the macro level derives his or her authority by virtue of the fact that he or she is appropriating a signal that is familiar and often employed at the micro level among the audience. The communicator gets the authority not so much for who he is but for sending the policy content through a familiar signal. Under this account, the authority signal for macrolaw is a generalized and organized version of the authority signal practiced at microlaw level. The legitimacy here is not institutional (a matter of pedigree) but cultural, cultural in the widest sense. We might want to refer to this as the cultural view of authority. The action of the communicator is authoritative, for he or she is performing a culturally expected or culturally appropriate act. “The normative components of microlegal systems are strands of intertwined expectations shared by the people in the situations,”37 Reisman notes in Brief Encounters. Now, viewing authority this way has two implications which, in my view, may be consistent with Reisman’s general work: the plurality and contextuality of legal norms. Indeed, in my judgment, these are the general truths that are made clear in his 36

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2 Harold Lasswell & Myres McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy 16 (1992) (“The formidable challenge to legal scholars today is to create a jurisprudence which is relevant to establishing demanded public order”). Reisman, supra note 3, at 54; see also id. at 39

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

study of microlaws that emerge from brief encounters. At the heart of the arguments in Brief Encounters (the book) is something that is important and unassailable: our lives are organized by myriad systems of norms and judgments and each one of us is a partial author of these norms and series of judgments. As I indicate later, the view that each one of us is a partial author of the norms which regulate our lives is similar to Habermas’s view of legitimate law as being one where the addressees of the norm are also its authors.38 But there are three issues that make the cultural reading of authority unsatisfactory. First, although it is perfectly sensible to think of cultural expectations as sources of microlaw, it becomes very difficult to think of such expectations as a source of authority in this modern, diverse and even globalized world. Modern pluralization has engendered what Max Weber called “the disenchantment of the world,”39 which for our purpose we might interpret as a condition where common and comprehensive views of the world are fragmented and thus such views cannot provide needed social coordination. It is partly these conditions that give law a prominent role as a means of social coordination. In diverse and complex societies, cultural and legal authorities necessarily diverge. In international as well as municipal context, what is culturally (or morally) expected to be an appropriate signal from the communicator is likely to be in dispute given the fact that in both contexts there are plural (and often conflicting) cultural and moral worldviews. Second, and related to the first concern is the issue of how conflict among legal norms which legal pluralism (at least, the cultural notion of authority) entails is to be resolved, as it must be, at least in some circumstances. After noting in Brief Encounters that “real law is found in all human relations,”40 Reisman is quick to observe that that would entail the real possibility of conflict among microlaws and between microlaws and macrolaws.41 If there are no ways within the process of lawmaking itself to help us establish a way to resolve these conflicts, how do we determine what

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Habermas, supra note 6,at 107. Max Weber, Essays in Sociology 155 (H.H.Gerth & C. Wright Mills eds. & trans., 1946) (1948). Reisman, supra note 3, at 2. The notion that there will be conflict among valid legal norms within a legal system is also noted by Joseph Raz. See Joseph Raz, Practical Reason and Norms 147 (2d ed. 1999) (“[T]here is no reason to believe that valid norms belonging to one system cannot conflict.”). Raz makes this point, just like his famous former colleague, H.L.A. Hart, that a legal system would therefore need a rule of recognition. Hart of course introduced the concept of a rule of recognition. See Hart, supra note 32, at 91-99. For Hart, the rule of recognition is a social fact, an empirically ascertainable actually-existing practice. See id. at 292-93. This is different from a seemingly similar source of validity adopted by Hans Kelsen, the Grundnorm. For Kelsen, the Grundnorm is a theoretical postulate presupposed in order to secure the basis of a chain of validation. See Hans Kelsen, Pure Theory of Law 1, 79, 202 (Max Knight trans., 2002). It is Hart himself who noted a similarity between his rule of recognition and Kelsen’s Grundnorm. See id. at 292 (The rule of recognition “resembles in some ways Kelsen’s conception of a basic norm”).

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law would prevail and under what circumstances? That is, which prescriptive communication among several competing ones is authoritative? In Brief Encounters, Reisman observes that he does not “rule out macrolegal intervention where there is serious and persistent injustice [because of the operation of microlaw],”42 whether the trumping macrolaw is national law or the “international code of human rights.”43 Thus, inconsistency between legal norms is resolved not on the account that one is or is not real law but rather on the ground that one is or is not consistent with what is postulated to be the ends (goal) of law—human dignity.44 Dispute as to what is or is not legitimate law (emanating from legitimate authority) is resolved outside the communication process that gives law its life. In other words, disputes are resolved substantively not procedurally. As I shall argue later, the more substantive the means of resolving disputes the more likely that disputes will not be resolved easily or durably.45 Perhaps another, a third way, of resolving the issue of legitimate authority, one that I believe is consistent with Reisman’s process-based theory of communication, is to think of legitimate authority as inherent in a legitimate process of communication itself, not external to it.46 Such a theory will recommend processes or institutional structures that allow all stakeholders to engage in the communicative process such that the addressees could genuinely view themselves as the authors of the communication as well.47 Here is where I think there could be a fruitful dialogue between Habermas’s discourse theory and Reisman’s communication theory. V. Habermas’s Discourse Theory of Law: A Brief Account For Habermas, the legitimacy of law (and hence the authority of law) is to be derived counterfactually from the communication process itself. “[T]he legitimacy of law,” he says “ultimately depends on a communicative arrangement: as participants in ratio42 43

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Reisman, supra note 3, at 176. Id. at 158 (“I submit that the practice of all groups must be appraised in terms of the international code of human rights.”); see also W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 581 (“[T]he policy and intellectual problem in both national and international law is to determine when and how the legal arrangements of one system should trump another… The New Haven School, in distinguishing between the ‘public order’ and the ‘civic order,’ and in expressing a preference for maximizing the civic order, but intervening in it when its practices violate goals of public order, provides a far more refined decision tool.”). More on this later. See infra (discussion on the role of human dignity as an evaluative concept). Habermas notes: “[M]odernity, now aware of its contingencies depends all the more on a procedural reason, that is, on a reason that puts itself on trial. The critique of reason is its own work.” Habermas, supra note 6, at xli. Id. at 449. (“From the standpoint of legal theory, the modern legal order can draw its legitimacy only from the idea of self-determination: citizens should always be able to understand themselves also as authors of the law to which they are subjects as addressees.”).

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

nal discourse, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected.”48 At another point, Habermas notes: “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.”49 Habermas analyzes the conditions of rational argumentation in communicative action on the basis of validity claims: comprehensible and well-formed speech-acts make an objective claim to truth, a normative claim to rightness and expressive and evaluative claim to authenticity and sincerity.50 Habermas’s theory of communicative action yields the analytical device of the ideal speech (ideal discourse) situation that allows Habermas to lay out in detail the presuppositions of communicative action that follow the conditions for rational and free discourse. Thus for Habermas to say that a claim or a statement is true or a normative judgment valid is to conclude that that statement will be accepted as true or the judgment as valid by participants in the ideal speech situation. For Habermas, were that ideal speech situation not presupposed, it would be very difficult to initiate and carry on normal (ordinary) communications.51 It is on the basis of this empirical assessment of the communication process (social fact) and its presuppositions—warrant for truth, rightness, sincerity and authen48 49

50

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Id. at 104; see also 1 Jürgen Habermas, The Theory of Communicative Action: Reason and the Rationalization of Society 261 (1984). Id. at 107. Habermas defines action norms as “temporally, socially, and substantively generalized behavior expectations.” Id. And the term “affected” is meant to include all whose interests could be foreseeably touched by the consequences of the action norms. Id. “Rational discourse” is defined as any attempt at understanding that occurs under condition of communication providing for free processing of information and reason. Id. at 107-8; see also Jürgen Habermas, Moral Consciousness and Communicative Action 66 (Christian Lenhardt & Shierry W. Nicholsen trans., 1990) (“Only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse.”). Habermas, supra note 48, at 22-42; see also Habermas, supra note 28, at 59-60 (arguing that a communicative process implicitly asserts that anyone who honestly seeks to communicate presupposes four things: 1. the utterance is comprehensible, 2. the utterance is true, 3. the speaker is truthful and 4. the utterance is the right one for the situation.); Habermas, supra note 6, at 9-17; Jürgen Habermas, Postmetaphysical Thinking (William Mark Hohengarten trans., 1992); Habermas, supra note 49. Habermas, supra note 6, at 119 (“Communicative freedom exists only between actors who, adopting a performative attitude, want to reach an understanding with one another about something and expect one another to take positions on reciprocally raised validity claims. The fact that communicative freedom depends on an intersubjective relationship explains why this freedom is coupled with illocutionary obligations.”); see also id. at 19 (“The ideal character of semantic generality shapes communicative action inasmuch as the participants could not even intended to reach and understanding with one another about something in the world if they did not presuppose on the basis of common (or translatable) language, that they conferred identical meanings on the expressions they employed. Only if this condition is satisfied can misunderstandings prove to be such.” (emphasis in original)).

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ticity—that Habermas develops counterfactually his theory of legitimate law. Specifically, he utilizes the ideal discourse situation to engage in the processes of mediating the tension between what is socially effective (facticity) and ethically justified (normativity), a tension that has for years divided descriptive and normative theories of law. What is valid is an idealized form of what we normally do. It is derived from communicative processes’ presuppositions.52 If we were to express Habermas’s observation in terms of Reisman’s theory of communication, we would say that the question of legitimacy of legal rules is one of mediating the tension between control and authority in the same way that for Habermas it is the mediation of the tension between facticity and normativity (facts and norms) that gives law its legitimacy. For each, a theory engages in such mediation if the normative character of law—its claim to deserve general recognition--is situated in its factual generation. For Habermas, the audience endows the communicator with authority to prescribe because in his scheme of lawmaking “the only regulations and ways of acting that can claim legitimacy are those to which all who are possibly affected could assent as participants in rational discourse.”53 The idealized form of the communicative process where “those subject to law as its addressees can at the same time understand themselves as authors of law”54 conceptually (not just historically) links legitimate law to a democratic procedure.55 So, for Habermas the tension between control and authority are resolved in favor of authority. There is legitimacy only to the extent that the addressees of the communication are also its authors. This procedural paradigm of legitimacy is thought more likely to capture the circumstances under which legitimate legal norms develop in modern diverse societies where traditional sources of solidarity—common culture, social and religious outlooks—are no longer available. VI. Authority in Habermas’s and Reisman’s Schemes Clearly, Habermas does not mean to suggest that there is a total merging of authority and control where the notion of coercion is dispensed with. This cannot happen for a number of reasons and Reisman is correct in considering such a view as “[o]ne of the 52

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Id. at 4 (“Unlike the classical form of practical reason, communicative reason is not an immediate source of prescriptions. It has normative content only insofar as the communicatively acting individuals must commit themselves to pragmatic presuppositions of a counterfactual sort. That is, they must undertake certain idealizations—for example, ascribe identical meanings to expressions, connect utterances with context-transcending validity claim, and assume that addressees are accountable, that is, autonomous, sincere with both themselves and others”). Id. at 458. Id. at 120. William Rehg, Translator’s Introduction, in id. at xix (“[T]he discourse approach is the key to [Habermas’s] argument that democracy and the rule of law are internally related.”); see also id. at 121 (“The key idea is that the principle of democracy derives from the interpenetration of the discourse principle and the legal form”).

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

sillier notions that surfaces in jurisprudence”56 with some regularity. First, not all addressees will have agreed on the nature of the message communicated or the manner in which it is communicated. There will always be some for whom coercive enforcement might be the only means of compliance. Second, as a practical matter, not all addressees will be the originators of the rules which will govern their lives. Rather, what Habermas suggests is that legitimate law “is compatible only with a mode of legal coercion that does not destroy the rational motives for obeying the law.”57 The procedural paradigm is meant to ensure that. People have independent reasons (independent from coercion) for complying with the law to the extent that they see the process as having given them the opportunity to participate as autonomous beings treating each other as addressees (private autonomous beings) as well as originators of rules (public autonomous beings). If Habermas resolves the relation between control and authority by subordinating control to authority and if unreconstructed legal realism sees a convergence in favor of control, the relationship between authority and control is ambiguous in Reisman’s communication theory. There are times when Reisman holds the possibility of a convergence between authority and control, for he says in Incidents that “effectively organized legal systems…are characterized by a general convergence of authority and control.”58 But it is not quite clear whether “authority” and “control” are used here in the same way as in the Lasswell Lecture or whether they are simply used as descriptions of what Reisman refers to as “myth systems” and “operational code” respectively.59 A statement in the Lasswell Lecture suggests that Reisman entertains the possibility of convergence at least in one circumstance, where there is a high level of communal solidarity with “a high sense of collective purpose.”60 In such a case, Reisman argues that legal norms (or “prescriptive expectations”) could emerge only from authority signals. One would have to take this statement as simply suggesting a theoretical rather than a practical possibility. This is so for a number of reasons. First, the dispensing with of the element of control intention will not be consistent with Reisman’s general theory that the absence of one of the three elements—message, authority signal and control intention—would lead to the communication being non-prescriptive. Second, in the diverse and complex world in which we live, it will be hard to find communities with such level of solidarity and collective purpose that there is an identity of interest between individuals and collectivities. Third, it is in fact in the very tension between the objective world of enforcement and the subjective 56 57 58 59 60

See Reisman, supra note 5, at 110. Habermas, supra note 6, at 121. Reisman, supra note 4, at 11. A detailed disquisition on this distinction is to be found in W. Michael Reisman, Folded Lies: Bribery, Crusades, and Reforms (1981). Reisman, supra note 5, at 112 (“In groups in which there is a high sense of collective purpose, and common interests have been internalized in the personalities of politically relevant members, authority signals alone may be sufficient to create prescriptive expectations”).

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world of normative validation that Reisman’s law prospers. Under this account, the gap between authority and control is inherent in the very notion of law in the same way that the gap between operational code and the myth system is inherent in the very idea of law.61 Suppose I am right in my contention that Reisman does not see a convergence between authority and control in favor of authority for there to be legitimate prescription, how then does he see the relationship between control and authority and subsequently the precise ways in which authority is bestowed on the communicator? Reisman observes that the “exact mix of authority signal and control intention required to prescribe varies from context to context.”62 At one end there is a community of high solidarity and collective sense where the role of control intention is very minimal. At the other end is a community of diverse members where communal identification and a sense of collective purpose are very low and under which “the communication of control intention may be most important.”63 Although this account does not tell us how precisely the authority signal is legitimated by the addressees, it hints that the more diverse and complex the community the less we can rely on the authority signal. That is, the more complex and diverse the society the less we can say that the addressees endow the prescriber with the authority signal, the less we will be able to say with Reisman that the relationship between the communicator and the audience “is more of a closed loop.”64 But it is precisely in a modern, complex and diverse society where we need to justify the legitimacy of authority. And it is precisely in these circumstances where the issue of how the audience endows the prescriber with the authority becomes essential. Ultimately, a better way to approach the question of how the audience endows the prescriber with authority might be the way that Habermas approaches it. It is to develop and recommend institutions that capture the presuppositions of rational discourse where all stakeholders engage in the process of free, equal and rational discourse, where the addressees view themselves as authors of the communication. In this sense, the relationship between valid legal norms and democracy might not be simply a historical and contingent link but rather a conceptual and logical one.65 Under this account, the narrower the gap between authority and control, in the direction of authority, the more legitimate is the norm. 61

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Reisman, supra note 4, at 11 (It is “inherent in the very character of law [that there will be] discrepancies between myth systems and operational code of text and context”); see also Reisman, supra note 5, at 111 (“It is well to remember that norms are prescribed because they are policies which part of the community does not voluntarily or spontaneously support”). Reisman, supra note 5, at 112; see also McDougal & Reisman, supra note 10, at 356 (“The interplay between the authority and control elements of prescription is complex and variable”). Reisman, supra note 5, at 112. Id. at 110. See Habermas, supra note 6, at 448 (“The democratic procedure for the production of law evidently forms the only post-metaphysical source of legitimacy”).

5 Adeno Addis, Law as a Process of Communication: Reisman Meets Habermas

One of the most innovative, interesting and attractive aspects of the New Haven School and Reisman’s theory in particular is their attempt to put “the individual person at the center of law.”66 Perhaps engagement with Habermas’s theory which attempts to develop institutional structures that allow us to push more in the direction of putting the individual subject squarely at the center of a communication process may allow us to deal more effectively with the issue of how a communication signal is acknowledged as authoritative. It might also allow us to bridge the gap between descriptive and normative theories of law. To be sure both Habermas and the New Haven School bridge the age-old gap between descriptive and normative theories of law. Habermas does that by constructing a theory that gives an account of a procedure through which prescription takes place (descriptive part of the theory) while at the same time conceiving of the procedure in a manner that it is ethically justified. Facticity and normativity are mediated within the procedure itself. The New Haven School’s approach is also simultaneously descriptive and normative. It is descriptive to the extent that it gives an account of the communication processes through which legal norms come to being. It is normative to the extent that at the appraisal level the legitimacy of a particular norm is judged by how well it serves the goals of human dignity (more on this later). However, the descriptive and normative aspects of the New Haven School are not entirely integrated. The normative dimension of the theory plays little role if any in the actual constitution of norms. As a result, I believe that the important but difficult issue of what constitutes a legitimate authority signal (one that is, or ought to be, authoritative) is not satisfactorily resolved. Authority is never merely an empirical issue. It must be ethically justified as well. VII. The Ends of the Law One area where Reisman’s and Habermas’s theories seem to lead to different conclusions is what the ends of law are. Habermas remains proceduralist to the end and attempts to derive the ends of law by focusing on the communication process itself.67 As he sees it, his is a procedural doctrine that leaves questions of substance to be decided by the outcome of actual discussions by free and equal beings (rather than, say, the artificial creatures of Rawls’ original position)68 within an institutional structure and procedure that permit such communication. For Habermas, it could not be otherwise, for in modern society where there is a plurality of views about values and interests on all issues, legitimacy cannot be based on substantive content but a fair procedure where all stakeholders have been given a fair chance to participate in the formation and formulation of norms. 66 67

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Reisman, supra note 13, at 938. For Habermas, “[t]he law receives its full normative sense neither through its legal form per se [e.g., Kelsenian positivism], nor through an a priori moral content [e.g., natural law or Rawlsian liberalism], but through a procedure of law making that begets legitimacy.” Habermas, supra note 6, at 135. John Rawls, A Theory of Justice 17-22, 142-50 (1971).

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Indeed, Habermas’s notion of communicative reason is contrasted with what he refers to as strategic reason. The goal of strategic use of reason for Habermas is one of determining the most favorable instruments or the best way for achieving a goal or sets of goals that are established independently of any kind of discursive agreement. On the other hand, communicative reason on which Habermas bases his discourse theory requires an interaction in which the goal is defined by the interactive process itself rather than independent of it. Reisman, on the other hand, just like the founders of the New Haven School, goes substantive and leaves the communication process altogether when exploring the ends or goals of law. For Reisman, the end of law “and the criterion for appraisal of particular decisions was the degree of contribution to the achievement of a public order of human dignity.”69 Human dignity separately defined70 and unrelated to the process of communication that leads to the emergence of legal norms becomes the animating purpose of the law. Law is an instrument of achieving human dignity71 and its legitimacy is therefore partly a function of whether it passes the test of consistency with the values of human dignity. Let me make a distinction between two instrumentalist views of law, one which is uncontroversial and the other somewhat controversial. The uncontroversial instrumentalist view maintains that particular laws will always have particular purposes. I will refer to this as specific instrumentalism. The second and controversial view, prominently made by Hans Kelsen, maintains that a particular purpose must be attached to law as a whole. That is, purpose is part of law itself, its specific nature, how we identify it.72 We may refer to this as comprehensive instrumentalism.73 The founders of the New Haven School as well as Reisman seem to embrace comprehensive instrumentalism. I say “seem,” for it appears, at least as far as Reisman is concerned, that the concept of human dignity does not play an obvious role in the way legal norms emerge through the communication process, for that process is thought of as purely descriptive, not normative. It seems to play a role only at the ap-

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Reisman, supra note 13, at 937. Id. at 939; Reisman et al., supra note 43, at 576 (“A public order of human dignity is defined as one which approximates the optimum access by all human beings to all things they cherish”). Eight values are listed as an empirical approximation of what people seek. See also id. at 580. In an early and very important study, Lasswell and Kaplan developed this list of values and grouped those values into two categories that they labeled as “welfare values” and “deference values.” See Harold D. Lasswell & Abraham Kaplan, Power and Society: A Framework for Political Inequality 55-58 (1950). Siegfried Wiessner, Law as a Means to a Public Order of Human Dignity: The Jurisprudence of Michael Reisman, 34 Yale J. Int’l L. 525 (2009). Hans Kelsen, General Theory of Law and the State 20 (A. Wedberg trans., 1949). (“[L]aw is a means, a specific social means, not an end”). Lon Fuller makes a similar distinction. See Lon Fuller, The Morality of Law 146 (1969) (“A statute is obviously a purposive thing, serving some end or congeries of related ends. What is objected to is not the assignment of purposes to particular laws, but to law as a whole.”).

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praisal level. But to the extent that the substantive value of human dignity is the end to which law is an instrument, then two questions arise that would perhaps not arise in the context of Habermas’s procedural theory. First, what are the precise contents of human dignity? Of course, human dignity as an abstract concept is never controversial. Rather, the controversy arises when there is an attempt to specify the values that are constitutive of human dignity. Either the constitutive elements are so general that they do not offer useful guidance or alternatively they are so specific that there is no consensus in relation to them. Or, when they conflict, as they often do, there may not be an agreed way of their order of importance. Second, can there be just a single purpose for an institution such as law? As someone noted, perhaps law is like a Swiss-Army knife—a multipurpose tool handy for lots of ends, but not necessarily an all-purpose tool.74 That is, law is a union of various instruments—power conferring rules, identity constituting norms (whether the identity is individual or communal),75 etc.—rather than a single instrument. That seems to militate against comprehensive instrumentalism. Indeed, it may even militate against the idea that law can never have non-instrumental values as seems to be Kelsen’s view and perhaps the view of the New Haven School as well. If we value law because it is our law (we are simultaneously the originators and the addressees of the norm), if law has an organic value to us to the extent that we perceive it as our biography,76 then such law has an intrinsic rather than mere instrumental value for us. Now, I think there is a way to reconcile Habermas’s and Reisman’s approaches in relation to the ends of law. First, even though he does not use the notion of “human dignity,” Habermas in some sense adopts similar substantive sentiments. The requirements for his Ideal Speech situation are requirements that are guaranteed to protect the free and equal status of the participants in a rational discourse. A norm will not become a legal norm unless it complies with those requirements. That is a normative judgment, albeit made as part of the process of norm creation rather than as a separate norm, guiding the appraisal of a legal norm once it has been created. There is, however, some merit to the argument that the evaluative principle be incorporated 74 75

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Leslie Green, Law as a Means, in Hart-Fuller at 50 (forthcoming). Identity constituting norms (whether the identity is individual or communal) can be viewed as organic rather than strictly instrumental, for under those circumstances law is simply a biography of the communities in which it emerges. For an elaboration on this, see Adeno Addis, Constitutions as Biographies (draft with author). A law might be valuable to us by virtue of the fact it is because it reflects us. See also Joseph Raz, The Authority of Law: Essays on Law and Morality 258-60 (1979). To say that law has an identitarian dimension, that it defines who we are, is not to make the different (and false) claim that we cannot therefore transcend our laws. In the same way we make and remake our identities after due reflection we clearly remake our laws. Because we can change it on reflection does not make our identity less ours nor our law less a definer of our identity. For a comment on context-transcending, see Habermas, supra note 6, at 323. If law is an outcome of the interaction among members of communities, then the notion of law as a biography of the people becomes not only comprehensible but logically entailed.

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as part of the process of prescription itself rather than applying it subsequent to the creation of the legal norm. As I have argued earlier, that will reduce the ambiguity as to what authority signal is, or is viewed as, legitimate at the point of norm constitution. Authority would have been ethically justified.77 VIII. Conclusion In both Reisman’s theory of law as communication and Habermas discourse theory of law, law is viewed as a tension between the world of social and political reality on the one hand and the normative world of legitimacy on the other. For Habermas, the tension is between facticity and normativity and for Reisman it is between control intention and authority signal. Although expressed in different terms, the communication theory of each is meant to capture that tension. There have been three purposes that have animated this essay. First, the essay has sought to explore how each author (and theory) captures and mediates the tension and consequently how each develops a theory of law that is not “in danger of losing contact with social reality” while not screening out “all normative aspects.”78 That is, part of the task of this essay has been to explore how each theory manages to weave descriptive adequacy with defensible normativity and hence bridge the gap between descriptive and normative theories of law. Second, the essay has sought to briefly suggest how reading each theory in the language of the other may suggest possibilities of overlaps as well as mutual illuminations. And third, the essay sought to suggest that to the extent that law is an outcome of communicative interaction, it surely matters what the nature or character of the communication is if the prescription is to be viewed as genuinely legitimate.

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Now, it appears to me that the integration of the descriptive and evaluative aspects of the enterprise is not entirely foreign to the New Haven School, although I believe it often comes as a process of filling what might be viewed as a legal gap. Thus, a person committed to the New Haven approach and assigned to decide what constitutes “equal protection” in a given circumstance where there are no guides as to how the phrase should be understood is going to appropriate the principle of “human dignity,” defined in specific ways, as a way to give substance to the general phrase. For a similar view, see Wiessner, supra note 71, at 530. Habermas, supra note 6, at 6 (“Tossed to and fro between facticity and validity, political theory and legal theory today are disintegrating into camps that hardly have anything to say to one another. The tension between normative approaches, which are constantly in danger of losing contact with social reality, and objectivistic approaches, which screen out all normative aspects, can be taken as a caveat against fixating on one disciplinary point of view”); see also Reisman, supra note 5, at 112 (describing the necessary tension between control intention and authority signal).

Chapter 6 The Uses and Abuses of Illusion in International Politics Mahnoush H. Arsanjani

We are all of us imaginative in some form or other, for images are the brood of desire; and poor old Featherstone, who laughed much at the way in which others cajoled themselves, did not escape the fellowship of illusion. —George Eliot1

In mid-twentieth century, the framers of the United Nations did not presume nor did they intend to create a world governance system. Despite the broad and sweeping language in the preambular paragraphs of the Charter, the framers had a more modest goal. Their primary objective was to avert another world war, and both to control and to legalize the exercise of power by the major states (the permanent members of the Security Council) through a process (decisions to be taken through an international organization) designed to be more acceptable to the smaller states who were to be the objects of the pressure. The framers’ method for achieving the objective was to create a forum in which multilateral diplomacy would permit voicing and, in turn, relieving political frustrations while establishing some control over the political decisions which could impact global affairs. This is not to accuse the original framers of cynicism or to deny them credit, for they certainly had a concern for the good of mankind and believed that, through multilateralism, common goals could be more easily identified and supported by united action. It is only to understand the context in which the framers of the United Nations worked and the way they saw the world. Since 1945 the world has changed in ways not anticipated by the framers of the Charter. So has the United Nations. Organizations, once created, acquire their own lives which are not always subject to the control of their designers or their constituent instruments. One development the framers could not have anticipated was the proliferation of international organizations. A few international organizations (in different forms and not necessarily with a universal character) existed before the United Nations, such as the League of Nations, the International Labour Organization, and 1

George Eliot, Middlemarch: A Study of Provincial Life 274 (Gregory Maertz ed., Broadview Press 2004) (1874).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 51-72.

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the Universal Postal Union. But it was the establishment of the United Nations and the framing of the Charter that paved the way for a mushrooming of international organizations, with different structures, goals and membership. Since 1945 the membership of the United Nations has increased to more than three times its original members. In addition, the perception of the role and the relative power and importance of the members has changed. Not only is there a great resistance to the whole notion of a limited-membership club of five major powers, but the whole concept of economic and military strength as the criteria qualifying a state for a leading role in international decision making is no longer accepted. The push for democratization in all multilateral decision making in the international system has endorsed the notion of equality regardless of the size or military or economic strength of states. The expansion of the range of relevant actors to include non-state entities has further complicated the dynamics of decision making at the international level. Non-state entities have become more influential in decision making at international fora through the adroit use of various strategies. Likewise, rapid communications systems which are not always subject to the control of the state apparatus have required quicker reactions to international events than the organized deliberative multilateral system can supply. The most striking effect which international organizations, with the United Nations at their helm, have had on world politics is the creation of a perception that there exists an international governance structure with the capacity to deliver on its promises. As this century progresses, this perception will likely gain strength and become more widespread – and not without some justification. The reasons for this perception may be found in the increasing number of international agreements, rules, and regulations governing the behavior of states between themselves or between them and their citizens or citizens of other states and even governing the relationships among individual human beings, wherever they may be located. A significant institutional infrastructure within organizations, for example, can monitor violations by states of certain of their treaty obligations. It enables individuals to submit petitions for violation of their rights granted to them under international agreements to which their states consented; it empowers international courts or arbitration tribunals to deal with conflicts between states and between states and individuals. There are international financial agencies from which states may request loans or ask to receive financial support for development projects, etc. The primary force justifying the design of even more commonly applicable rules of behavior and having a collective watchdog for broadly overseeing the implementation of those rules has been interdependence. Interdependence, whether real or imagined, among all actors is believed to defy political borders or vast distances of water or land. International organizations are viewed as a proper response to increasing interdependence among states for just about every issue, always with the idea of limiting unilateral actions by states. But the actual capacity of international organizations to perform the indispensible functions of a world governance system has often

6 Mahnoush H. Arsanjani, The Uses and Abuses of Illusion in International Politics

been but should not simply be assumed. Certainly, illusion, like the myth system2 in law, performs important functions in international politics, as in every level of human interaction. But any effective political system, including the international political system, should not lose sight of the limits of illusion and symbolism, lest it fall prey to the powerful narcotic effects of self-delusion.

* Early international organizations, such as the Postal Union and the International Labor Organization, were a response to the recognition of specific interdependences and the advantages to be gained from cooperation in those areas among at least several if not all states. These early organizations were intended to facilitate the formation of a consensus on some common policy that would then be implemented by the member states of these organizations themselves. Insofar as these organizations were places for congregation and discussion, they formed a sort of parliamentary forum. But even as a venue for discussions among a selected number of states, these organizations were viewed as proper fora for discussion of only certain selected policy issues, usually related to technical matters. The early international organizations were not viewed as implementing agencies; the member-states retained the responsibility for implementation. The first experiment with a manifestly political international organization, the League of Nations, did not change that perception. It too, only created a venue for discussion of political as well as technical issues. By contrast, the framers of the United Nations raised the bar and set the stage for expanded expectations of activity under the aegis of the Organization. Even then, however, the expectation of the capacity of the United Nations to implement decisions was modest; states still remained the predominant actors and action takers. Unlike the organizations that preceded it, the establishment of the United Nations was not based on a recognition of interdependence, so much as on a belief that the world would be a safer place if states had a place in which to agree on certain common ground-rules while the five major powers of the time stood guard. The expansion of the membership of the United Nations and of many other international organizations has proved an important factor in changing the perception of the role and capacity of international organizations. In the 1960s and 1970s, decolonization was strongly encouraged by the United Nations; it brought new members to the United Nations as well as to other international organizations. The membership of the United Nations grew from 51 original members to 192; many of the new members came into existence through the decolonization process. Not only did the United Nations help to give birth to these states, but it also was the gateway through which they entered onto the international stage, a significant part of which was already structurally framed by international organizations. 2

For understanding the “myth system,” see W. Michael Reisman, Folded Lies: Bribery, Crusades, and Reforms 15-18 (1979).

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In international politics, wealth, military might, technological development, demography and education of population, and the extent of territory are critical components of the influence of a state. States that are less endowed with these characteristics will have less influence and will be less able to project power regionally or internationally. But the existence and operation of the United Nations and other international and regional organizations have introduced a form of democratic participation in the international parliamentary arena. In those arenas, merely being a state includes the right to participate in international institutions and, through its parliamentary procedures, to express views, influence international public opinion, vote on decisions and election of officers, and even to have one of its nationals be nominated and possibly elected to important institutional positions. A fair number of these new states are “developing;” many, to be less than diplomatic, are povertystricken and heavily dependent on external assistance for food, medicine, and development projects from other states or international institutions. Indeed, the very existence of some of these states depends on international assistance from international institutions. International organizations have become the predominant instrumentality for dealing with interdependence. Interdependence is a function of interaction but one should be mindful of the fact that international institutions themselves now nurture and perpetuate interdependence. Where representatives of states are permanently present at an organization’s venue and meet on a daily basis, they must do something. So they discuss news, comment on events, try to set more ground-rules for themselves and their peers and the organization, encourage compliance with the agreed ground rules, establish mechanisms for monitoring implementation of those rules, and so on. All this leads to expanding the organization’s mandate, its institutional structure, even to establishing new organizations. And this process becomes self-sustaining. International organizations ensure interactions among their members. As Michael Reisman has observed, prolonged interactions nurture interdependence.3 The very fact that every noteworthy event, even manifestly domestic ones, can be discussed in international fora, there to be subjected to the appraisals of others, increases the extent to which states are dependent on the support of other states, international or non-governmental institutions, and, to an increasing extent, the global media. The broad competences of the United Nations, including its various principal and subsidiary organs, and those of other international organizations make it possible to include items on their agendas that are essentially local in nature and largely bereft of international consequences on the theory that those items are of “international concern,” in that it is portrayed as affecting some states or the international community in some degree. This modus operandi of the United Nations and of other international organizations itself increases interdependence and the need of states increasingly to adjust internal matters to appease others. The multiplicity of international organizations and the diversity of subject-matter of their mandates have made it difficult to imagine any significant issue that can escape consideration 3

See W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards 755 (1971).

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by one or more of these organizations. As a result, there is a widespread and generally uncritical perception that interdependence not only allows every state a general droit de regard, the right to react and comment on events in other states, but also that there exists an organized international institutional structure competent to take up any issue and even to render decisions on it. International organizations themselves have become more complicated. While most international organizations are established by states, many of them have come to allow significant participation by non-governmental entities, industry, and a variety of community leaders.4 While the participation of these non-governmental interests groups enriches the quality of deliberations in international organizations, it also undermines governmental influence. It provides opportunities for coalition building among various interest groups with affinities across state boundaries, allowing for cooperation among them independently of states. This further enhances interdependence or, at least, its perception. All of these interactions and formations of new complex networks have been facilitated by and crisscross international organizations. These and intense interactions between states and non-state entities with and within international organizations have created the perception that international institutions are essential for channeling multilateral and international negotiations and cooperation. Because of the significant financial and political investments by states and non-state entities in these organizations, it is now unimaginable to think

4

The concept of international organizations has evolved. The increasing complexities of the international system and the evolving tasks assigned to multilateral arenas now often require cooperation among different categories of international actors. The new tasks have also led to the formation of diverse forms of international organizations, many with international legal personality. The compactness of the term “intergovernmental” no longer reflects the multiplicity of forms that international organizations take in the international system. See for example, the International Labour Organization and the role of the trade unions. ILO operates on the basis of a tripartite representation, with workers, employers, and States parties participating, on an equal basis, in the decision-making process. See Constitution of the International Labour Organization, art. 3. The Statutes of the World Tourism Organization provide non-governmental organizations in tourism with “affiliate” membership. See Statutes of the World Tourism Organization (WTO) arts. 4, 7, Sept. 27, 1970, 985 U.N.T.S.350. Also, the Global Fund, which was established in 2002 to fight AIDS, tuberculosis, and malaria, has a Board that comprises twenty voting members, divided evenly between donor and implementation blocks. Five board seats are occupied by civil society and private sector representatives. See The Global Fund to Fight AIDS, Tuberculosis and Malaria, By-Laws, at art. 7.1, http://www.theglobalfund. org/documents/TGF_Bylaws_en.pdf (May 5, 2009). In addition, international organizations admit other international organizations or nongovernmental organizations as observers. While there are limited rights for these observers, they have access to government delegates and can lobby. They also hear and see what government representatives say or do and use various strategies to influence the attitudes of governments.

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of international relations or international decision-making without some relation to international organizations.

* Harold Lasswell, writing in 1935 on the problem of world unity, observed that “[t] he prerequisite of a stable order in the world is a universal body of symbols and practices sustaining an elite which propagates itself by peaceful methods and wields a monopoly of coercion which it is rarely necessary to apply to the uttermost.”5 In his view, the myth of the unity of the world, if it is to be effective, must be taken for granted by most of the population of the world. But he also emphasized the importance of material unity; that is that there must be sufficient tangible inducements to unity.6 Lasswell observed that “the chances for a developing world identification are improved when world symbolisms are in active competition with existing parochial expressions.”7 He believed that “the power of the world symbols can be increased by reducing the incessant use of national terms in classifying activities.”8 He advocated a search for symbols which are expressive of common aspirations around the world, speak of the “World Minimum” and find sentiments for crystallizing it: We might take advantage of the prestige of terms like “law” and sloganize the “World Legal Community.” Perhaps it is appealing [sic] technique to deflate the pretensions of local groups by arguing that the world legal community is prior to and superior to municipal law.9

Lasswell saw the development of “a common cultural experience as a seed bed for the emergence of common symbols and practices” essential for world unity. In 1935, he saw “few common objects which enter into the daily life of millions in the world, and … even fewer symbols of a world order which compete for loyalty with parochial and functional names and emblems.”10 He saw, at that time, “the distribution of culture traits around the world … random in the extreme.”11 Since 1945, one of the functions of international organizations has been precisely the provision of “common symbols” both legal and non-legal. International organizations, through these “common symbols” have created an illusion of unity and 5 6 7 8 9 10 11

Harold D. Lasswell, World Politics and Personal Insecurity 181 (Free Press 1965) (1935). Id. at 182-83. Id. at 187. Id. Id. Id. at 191. Id.

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some form of world governance that is helpful for the management of international politics. This illusion of unity has raised an expectation that the main means now for making important decisions with wide-ranging effects, or for prescribing international law’s rules and regulations, is through inter-state negotiation with as wide a participation as possible and with the consent of at least the majority of the participants.12 A critical strut of the illusion is a principle of majoritariansim in international parliamentary fora. At the same time, the notions of “international concern” and droit de regard, the entitlement of state and non-state entities to express views on internal events in other states, have expanded. They have created the expectation of an inclusive entitlement to monitor more and more internal matters. The common symbol system has reinforced the notion of the dignity of human beings. It has expanded the requirement of international dispute resolution through judicial processes. It has intensified the demand for the prohibition of the use of force and has significantly raised the bar for any unilateral use of force. These symbols are identified and defined in treaties and various forms of decisions of international organizations. They are invoked by leaders and representatives of states in public and official fora and in their communications. They are also invoked in international and domestic political structures, courts, and tribunals by individual human beings against governments and others. The question, however, remains as to the extent to which these symbols have been incorporated into or co-joined to national parochial symbols and with what effects. However effective they may be, one thing is clear: national and parochial symbols, while in a defensive mode in many states, have not disappeared. National symbols have also been supported by other symbols of a religious, ethnic, and sectarian character that are not necessarily sympathetic to universal symbols. The production and reinforcement of the symbols of world unity by international organizations, as Lasswell observed, are essential for creating a united front for the 12

International organizations have been major generators of multilateral treaties, codifying international law in detail and in almost every important sphere of inter-state relations: trade, human rights, criminal law, environment, etc. It is now almost inconceivable to attempt to conclude a treaty, aside from regional treaties and arrangements, if they are not under the auspices of international organizations. Even regional treaty arrangements are now pressed to take more states on board, either as members or associates. NATO and the European Union are prime examples. Even the G-7, an entity originally designed to function as an exclusive club, had to keep its doors ajar. The attractions of using international organizations with global reach as venues for negotiating treaties are manifold, including the perception of interdependence among states so extensive that it assumes that everything affects every state in varying degrees and because of that almost every incident is internationalized. This perception also creates the expectation that all states should participate in formulating any new rules of international law; wide state participation in the formulation of a treaty creates incentives for more effective implementation, and increases the likelihood for becoming parties to treaties or even if they do not become parties, they would be more inclined to be sympathetic to the terms of the treaty in practice. See Mahnoush H. Arsanjani, Book Review, 100 Am. J. Int’l L. 733 (2006) (reviewing José E. Alvarez, International Organizations as Law-Makers (2005)).

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world community. The most striking aspects of these common symbols are related to the value and the place of the individual vis-à-vis others and vis-à-vis their governments. The Universal Declaration of Human Rights and the Covenants, together with a large number of other human rights instruments, have introduced, with significant symbolic force, if not always with binding force, the high value to be attached to human dignity. Such symbols are normally deemed more “progressive” in terms of respect for individual freedom and well-being than comparable national symbols. Hence, domestic regulatory arrangements that fall short of symbolic international standards are under constant pressure. Where they do not adapt themselves to international models, they are attacked both domestically and internationally. Thus international models and an illusion of world unity created by international organizations provide important tools for individuals, non-governmental organizations, and states to confront those parts of the state apparatus that do not support these international symbols. International human rights instruments have certainly influenced and even inspired the constitutions of many states which came into existence since the late 1960s. These instruments have also led to changes in national legislation and to expanded interpretations of individual rights in constitutions. The Rome Statute of the International Criminal Court,13 the most recent constitutive treaty, has proved a major force in creating a set of substantive and procedural criminal law models and symbols, moreover, requiring states parties to adjust their domestic criminal law systems to make them consistent with their obligations under the treaty. Not only does the Rome Statute identify and define certain international crimes, but more importantly it defines the meaning of “due process” in all criminal proceedings and not only for international crimes. While these issues have already become part of domestic law in some states, many other states are still struggling with or, better said, resisting the proper application of “due process.” When these latter states become parties to the Rome Statute, they are obliged to incorporate these essential legal symbols into their domestic law. The very existence of an important constitutional document such as the Rome Statute creates a model against which domestic law standards will be compared. All of these instruments affirming the value of human beings have created an international moral code, even if they have not been enforced at all times. This moral code has become part of the international culture and a common language for the formulation of demands against governments, non-governmental entities, and international organizations themselves.The democratic structures and procedures for deliberation and decision-making in international organizations, for all of their imperfections, have helped to create the perception that this should be the model for deliberations everywhere. This is not to say that, as a result, all domestic political deliberative arrangements have become democratic. Far from it! But domestic arrangements are under even greater pressure to meet international standards. Together with various entitlements of individuals under the human rights instruments,

13

Rome Statute of the International Criminal Court, opened for signature July 17, 1998, 2187 U.N.T.S. 90.

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the practices of international organizations contribute to the creation of the common culture that Lasswell saw as vital for securing world unity.

* The international organization is a unique creation. Legally, it is set up with a separate and independent legal personality to enable it to operate in both domestic and international legal systems. This allows organizations to sign agreements with states or other international organizations, to hire personnel, to lease or enter into contracts for services, and to take other actions with the certainty that they will be effective. These actions are necessary for the running and management of any institution. International organizations must also implement the decisions taken by their respective governing organs. Some of these decisions – such as setting up and organizing regular governmental meetings, issuing documents, registering treaties, reviewing country reports on various issues, taking care of refugees, feeding the hungry, etc. – are now routine. Other decisions deal with quite exceptional issues. In the case of the United Nations, for example, they may involve peace and security, peacekeeping, authorization for the use of force by another state or a group of states, establishment of special tribunals, etc. Structurally, international organizations are designed to meet the standards they proclaim, guaranteeing the participation of a large number of states and non-state entities and deliberating, negotiating, and reaching conclusions through a process compatible with democratic principles of equality. For this reason alone, international organizations with universal aspiration should be held in even higher esteem. Therefore, policy clarifications and decisions by these organizations should reflect a closer approximation to the common interests of the international community. Similarly, the strategies devised by these organizations should be more effective for achieving such goals because participation by all states would seem to be a better guarantee for closing loopholes. In practice, there are serious difficulties. The first derives from the sheer number of participants in a structure allowing all participants to voice their views and to respond to others’ in an attempt to persuade them. The larger the number of participants in a pure democracy, the more complex is the process of reaching decision. The second difficulty is the time that is required to conduct proper negotiations among such a large number of procedurally equal participants. Reactions to events are a function of the speed at which news become public. Before the age of digital communications, decision-makers had more time to discuss and agree on a course of action. The time lapse, itself, would sometimes diminish the importance of the issue or even resolve it. In a world of virtually instantaneous communication in which both decisions-makers and the general public hear and see the news about the same time, the luxury of reflection and discussion has become scarce while public demand to react has significantly increased. The dependence of political elites in democratic states on almost daily public opinion polls further increases the pressure for quick

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reaction. The current set-up for negotiations among a large number of participants in an organization is ill equipped for rapid reaction. The third difficulty derives from the diversity of views among the participants in international organizations; they do not see the world from the same angle. The states and non-state entities in these organizations are not a homogeneous group. In our “global village” there are still significant differences between its various residents’ observational standpoint based on cultural, religious and ethnic identities and their matrix of perception about the past and expectations about the future. The fourth difficulty is the diversity of interests among the participants. There is, to be sure, some commonality of interests but it rarely reaches the point of unity. In many cases, interests are simply not compatible. The fifth difficulty arises from the differences of views on the selection of strategies to achieve whatever common goals have been identified. Strategies are not cost-free. They require capital, both financial and political. In a world in which both of those resources are chronically scarce, agreement on who should contribute what, when, and how is elusive. Because some participants lack this capital, the pressure on others, who do, to shoulder a heavier burden is great. The sixth difficulty is the special interests of world political elites. Not all political elites exercise power based on democratic principles, and, as a result, they have little incentive to defend the interests of their populations. Even in democratic societies, political elites, once in power, often focus more on self-preservation and personal interests than on the interests of their constituents. The independent legal personality of international organizations should not be equated with independent wisdom of the organizations or on their capacity to clarify common interests. Negotiations during the earlier years of the United Nations did not encounter many of these difficulties because they took place among a smaller number of states and against a vivid and shared background: World War II, decolonization, and the Cold War. Of all of these, the Cold War was the dominant factor in international politics and not just for the East and West. It also affected the North and the South. Almost every other factor revolved around it. This is not to say that religious, ethnic, cultural, and moral issues were not relevant and did not feature in negotiations, but that they were overshadowed by the primary political concern and never prevented reaching agreement on primary goals. No matter how different the contending ideologies, accommodations had to be made. 14 14

For example, the struggle during the negotiation of earlier human rights instruments was among states, with very little participation and influence by non-governmental organizations. It was more to reconcile political and ideological differences between the West and the Soviet Block. Religion had a place but was not of paramount importance. Negotiations on the Universal Declaration of Human Rights were the very first test of these conflicting political ideologies. During the negotiations, some efforts were made to include references to the origin of such rights with a reference to divine creation. Those efforts were defeated, and the references were replaced with more secular terms susceptible to interpretation. For example, Brazil made a proposal to add to article 1 of the Declaration, that “all human beings are created in the image and likeness of God.” This amendment was not supported, and the representative of China reminded the negotiators that he and

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It is sixty-four years since the end of World War II and the memories of the horrors of that period are fading, if they have not already faded. The perception is that the world has moved to a new era with new concerns and conflicts. Decolonization struggles have been replaced with frequent eruptions of religious, ethnic and sectarian rivalries. The Cold War has ended and there are fewer ideological differences to which other concerns have to accommodate. Negotiations are now conducted among a larger number of states. While a more limited number of states play a larger role in the actual negotiations, voting is still the default mode of decision-making and every vote counts. The negotiating dynamics among states have also changed. Major powers are not as “major” as they used to be. While they still exercise influence, it is significantly diminished. Factors such as the dissolution of Soviet Union, the economic concerns and introversion of a Western Europe with less and less resources and appetite for overseas adventures, the United States’ unsuccessful military involvements, together with the rise of China, India, and Brazil as new economic powers have diffused and counterbalanced the concentration of power. Added to these complex power shifts, the grouping of states into voting and political camps for the purposes of negotiations has created an atmosphere less than optimal for successful negotiations.

his people, which comprised a large segment of humanity, “had ideals and traditions different from those of the Christian West,” that he had refrained from proposing that they be included in the Declaration, and that he hoped that other delegations would show equal consideration. See U.N. GAOR, 3d Sess., Third Committee, September 21-December 8, 1948, p. 98 (Oct. 7, 1948)). Eleanor Roosevelt described the efforts to keep the language of the Declaration broad and acceptable to all: I happen to believe that we are born free and equal in dignity and rights because there is a divine Creator, and there is a divine spark in men. But, there were other people around the table who wanted it expressed in such a way that they could think in their particular way about this question, and finally, those words were agreed upon because they … left it to each of us to put in our own reason, as we say, for that end.

Eleanor Roosevelt, Making Human Rights Come Alive, in What I Hope to Leave Behind: The Essential Essays of Eleanor Roosevelt 599 (Allida M. Black ed., 1995), quoted in Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 147 (2001). Aside from philosophical debates as to the origin of human rights, religious concerns were limited to the freedom of religion, including changing one’s religion, which was an issue for some Moslem countries. Even this concern only led to one abstention from among eleven countries with substantial Moslem population. Saudi Arabia abstained, while Egypt, India, Iran, Iraq, Lebanon, Pakistan, Philippines, Syria, Turkey, and Afghanistan voted in favor of the Declaration. All states members of the Soviet Bloc abstained. The Declaration was adopted by 48 votes, with 8 abstentions. See discussions in the General Assembly during the adoption of the Universal Declaration. U.N. GAOR, 3d Sess., Part I, 1948, 180-183 meetings on December 9-10, 1948, at 852-933. For an account on the negotiating history of the Universal Declaration, see Glendon, supra, at 147. See also Mahnoush H. Arsanjani, Negotiating the UN Declaration on Human Cloning, 100 Am. J. Int’l L. 164, 167-71 (2006).

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The increasing number of international organizations and the breadth of issues within their mandates, and the degree of specialization and expertise required for dealing with those issues in negotiations can be daunting for states. The limits on a state’s financial and human resources and the pressure to be present in all these international organizations make it difficult or impossible for the representatives of many states to be adequately prepared, to formulate their policies with input from their governments, and to participate effectively in the debates and decision-making in international organizations. Nor is this difficulty limited to small or medium-size states. Despite the general presumption, not every issue discussed at international organizations has a global impact, but triage is rarely possible. It is not easy to assess at the initial stage, and late arrivals to negotiations surrender influence significantly.15 Political groupings among states also act to diminish the quality of participation. In any political grouping, the more active and stronger members of the group will exercise more influence, directing the group to a particular position which individual members may not have otherwise taken. The possibility of negotiations within the group allows for a more relaxed attitude on the part of many of its members, for the responsibility is on the representative of the state which chairs the group to be fully informed and to propose positions for the other members. In theory, other group members should remain vigilant and keep themselves and their capitals informed and should actively participate in formulating policies that take account of their governments’ views. In practice, such arrangements act to alleviate the pressure on other members and to enable them to catch up with other work they need to do. Finally, because states do not always have a position on all issues, they may simply ride along with more active members of the group who wish to lead the group in a particular direction.

* A number of provisions of the United Nations Charter and its preamble define in broad terms the common interests of the world community. Members of the United Nations, by adhering to the Charter, have committed themselves, individually and collectively, to act to protect those common interests.16 But this universal, aspira15 16

See Arsanjani, supra note 12. The New Haven School defines “common interests” as those interests that “relate in empirical reference to activities with inclusive impacts, realistic expectations of interdetermination, as demonstrated in reciprocal tolerance and mutual accommodation.” “Special interests” are those that, though “relating to activities having inclusive impacts, … are destructive of common interests, in the sense that the demands asserted are incompatible with human dignity values and the expectations entertained do not include reciprocity and mutual accommodations.” Within the category of “common interest,” the New Haven School allows for a whole continuum of inclusivity. “Inclusive interests” are “those embodying demands compatible human dignity and supported by expectations about

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tional commitment does not produce collective deeds commensurate with the commitment. The United Nations is less united than its name. It is not a collectivity of 192 nations solidly behind the well-being of the whole world. Articulating the common interest of the world community on any particular issue thankfully requires discussions among states and relevant non-state actors. Up to now, states have been able to agree on their common interests, in broad rhetorical language. The difficulty arises when they try to operationalize those common interests. Here unity unravels and common interest is gilded with so many qualifications and caveats that it can bear little resemblance to its original formation. The most important thread tying these nations together is their need to be and remain members of this universal club, for it testifies to their very existence as independent states and members of the international community. Once in the club, however, national, regional, religious, ethnic, and ideological pressures make forging a unified action plan more and more difficult or superficial. Decisions taken by states through the governing bodies of international organizations are always presented as decisions of the organization. The actors that participated in shaping the content of the decisions of these organizations disappear in the shadow of the organizations. For outsiders, states that helped making the decisions or who participated in what Michael Reisman calls “decisions refusing to decide”17 are invisible. This form of presentation of the work of international organizations contributes to creating a more solid and powerful perception of international organizations than the reality that actually obtains. So success will be viewed as the success of the organizations and failure will also be viewed as the organizations’ failure, independently from their membership. This perception, while it has benefits, also has downsides. If the veil of international organizations is not pierced, the give-and-take among states that goes on behind the scenes becomes invisible. This is not to say that such give-and-take is unhealthy; it is only to emphasize the extent to which national and special interests are concealed behind ostensible advocacy for the common interests of the international community. This perception also provides a good cover for the membership of the

17

the conditions of achievement which involve a high degree of impact upon a number of participants in global social process”. “Exclusive interests” are those “embodying demands for values compatible with human dignity and supported by expectations involving a predominant degree of impact upon a single participant in the world social process, unaccompanied by high levels of inclusive impact.” See Myres S. McDougal, Harold D. Lasswell & Lung-Chu Chen, Human Rights and World Public Order 409-10 (1980). Reisman observes that: Once an organized arena has been seised of a matter … it cannot escape decision. Its culminating behavior, whatever the manifest purport and form, will have value consequences. As a matter of legal and political science, these consequences should be characterized as a decision and subjected to the evaluation and appraisal applied to all decisions. In particular, students should consider the full range of effects caused by clothing a substantive decision in the form of a non-decision and, under what circumstances, this form is appropriate.

Reisman, supra note 3, at 625.

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organizations to pretend that they are not participants in the decision process and thus to mask their own unwillingness to advance resources or their lack of commitment as the failure of international organizations. International organizations then serve as scapegoats. It has become possible even to attribute lack of success in domestic politics to the failures of international organizations. Thus, a drawback of the decision structure of international organizations (or, perhaps, one of its latent functions) is that it allows for the evasion of accountability of individual participants; the organization is accountable and not its individual members. This is a fictional cover to escape scrutiny by those affected by the decisions or non-decisions of international organizations. Michael Reisman exposes the fallacy of the innocence of non-decisions: [R]efusal to exercise the capacity to decide is, itself, a decision and as such must be evaluated on its merits. One the more onerous aspects of power in an arena of minimal authoritative regulation is that all behavior in which that power would potentially be effective will, no matter what the motive, constitute a decision of major public-order or constitutive dimensions. And those affected by the course of action or inaction will rightly characterize it as a decision. To dispose of potential power in a particular situation is to be, inescapably, a participant.18

One of the effects of the illusion of world unity and the perception of its governance system is the reliance that is placed on international organizations rather than on states for performance or implementation. States’ obligations are to contribute resources to and comply with the decisions of international organizations; both states and their organizations suffer from considerable shortcomings in this regard. The multiplicity of international organizations and the political necessity for states to join these organizations mean that they have to contribute resources to all these organizations. The expanded mandate of these organizations in turn requires more resources, which states do not have. As a result, international organizations have to perform the expansive demands on them with limited resources, diminishing both the quality and quantity of their work. In addition, since international organizations are viewed as the bodies which are exclusively competent to take action, the pressure on the states to allocate sufficient resources to act or react individually is relieved. There should be, as it were, a natural limit to the illusion that international organizations are the proper fora for reaching agreement on every issue, even on those of little or no global effect. Where relevant states themselves can reach an accommodation on controversial issues, why take them to an international organization? States

18

Id. at 781 n.2.

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should not externalize the costs of multilateral diplomacy to international organizations unless the issue implicates real global common interest.

* Following the mass killings and ethnic cleansing in Rwanda, Kosovo, and East Timor, then Secretary-General Kofi Annan, in his famous address to the 54th session of the General Assembly in September 1999, spoke of the tragedy of “humanitarian intervention.”19 He highlighted that neither inaction in Rwanda nor regional action by NATO in Kosovo were ideal alternatives in dealing with large scale humanitarian perils. This was as a clear statement as any official of the United Nations could have made on the impotence of the world’s Guardian Angel, the Security Council, bearing in mind the constraints of diplomatic correctness. Warning the Council, he stated that unless the Council is able to assert its collective force when necessary, “there is a danger that others will seek to take its place.”20 He then commissioned a study by a group of eminent persons primarily about how the Security Council could become more effective in reacting to events for which it has the primary responsibility under the Charter. That group issued a report in 2005 in which it invoked the principle of “responsibility to protect.” That report influenced the formulation of a set of pronouncements by the “World Summit Outcome” in September 2005, the largest gathering of world leaders at the United Nations Headquarters in New York.21 In this document, the principle of “responsibility to protect” was confirmed but altered.22 A 19 20 21 22

U.N. GAOR, 54th Sess., 4th plen. mtg. at 1-4, U.N. Doc. A/54/PV.4 (Sept. 20, 1999). Id. at 3. The document was adopted as General Assembly resolution A/RES/60/1 (Sept. 16, 2005). Id. Paragraphs 138-140 of the Outcome Document deals with “responsibility to protect”: Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a caseby-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes

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comparison between the formulation of this principle in the report of the Group of Eminent Persons and in the World Summit Outcome Document indicates that the world leaders have a more confined understanding of the principle of “responsibility to protect.” For the world leaders, every state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, and, in case of a state failure, the exclusive collective action or authorization for such an action is entrusted to the Security Council. As to the actions that could be taken, the Outcome Document encourages the international community to assist the states in the exercise of such a responsibility and the United Nations to establish an early warning system. With regard to what the Security Council can do, the Outcome Document recommends first, that peaceful options through the diplomatic route be taken under Chapters VI and VIII of the Charter. Only as a last resort, when national authorities are “manifestly” uncooperative, should the Council resort, on a case-bycase basis, to use force under Chapter VII. The primary responsibility of states to protect their populations from such grave crimes is simply a restatement of a pre-existing obligation and is derived from their sovereignty and the responsibility of their governments in accordance with the constitutions under which they exercise power. It is a reaffirmation of such a responsibility at the international level. What is astonishing in the Outcome Document is the presumption of the neutrality of the governmental apparatus in the commission of such crimes. Paragraph 138 of the Outcome Document speaks of “assisting” states in discharging their responsibility to protect their population through “capacity building.” It is difficult to assume that such grave crimes were committed or could be committed without the direct or indirect involvement of governments. As to what should be done to stop such grave crimes, the Outcome Document limits the responsibility of the international community to assist “through the United Nations” in accordance with Chapters VI (Pacific Settlement of Disputes) and VIII (Regional Arrangements). When all else fails, the international community should be prepared for “collective action” in a timely and decisive manner through the “Security Council” in accordance with Chapter VII (Actions with respect to Threats to the Peace, Breach of the Peace, and Acts of Aggression), but even then, only when national authorities are “manifestly failing” to protect their populations.

against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. 140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.

6 Mahnoush H. Arsanjani, The Uses and Abuses of Illusion in International Politics

It is difficult to see what new functions are anticipated for the Security Council that do not already exist under the Charter.23 Since the humanitarian crisis in Somalia,24 the Council has interpreted the threat to international peace and security broadly enough to include a serious humanitarian crisis. If anything, the new conditions tend to introduce more limits on the Council’s competence to react to genocide, ethnic cleansing, war crimes, and crimes against humanity. In addition, there is a new twist to collective actions through the Security Council: not only when peaceful means are ineffective, but also when “national authorities are manifestly failing to protect their populations.” While lip service is given to acting in timely and decisive manner, the temporal element, the critical factor in saving human lives, is basically being consigned to a back seat in the whole exercise. The Outcome Document does not speak of “humanitarian intervention”, whether unilateral or by a group of states. But the Outcome Document is clearly an attempt to restrict that notion. The next step in operationalizing the principle of “responsibility to protect” was the follow up by the General Assembly at the invitation of the world leaders in the Outcome Document. The first response by the General Assembly was not auspicious. It refused to pay for a special advisor to the Secretary-General on responsibility to protect who was tasked with providing a report for the Assembly. It was ostensibly out of a concern for budgetary considerations, but it clearly expressed the Assembly’s misgivings about the entire exercise. Fearing the growing suspicion among many smaller states that the whole notion of “responsibility to protect” is nothing but another way to legitimize intervention by more powerful states, the SecretaryGeneral’s report took a cautious approach, focusing primarily on capacity building, assisting states in protecting their population, developing an early warning capacity, and allowing for intervention by the Security Council only as the very last resort.25 Even the very cautious and modest approach taken in the report, which added nothing to the Security Council’s tool box, has come under an attack seeking to unravel even the rhetorical consensus by the largest group of heads of states.26 The whole 23

24

See the report of W. Michael Reisman, as a Rapporteur of the Institut de Droit International on Humanitarian Intervention, 72 Annuaire de L’institut de Droit International 241 (2007). S.C. Res. 733, U.N. Doc. S/RES/733 (Jan. 23, 1992). The preamble of this resolution provides, in part: Having heard the report of the Secretary-General on the situation in Somalia and commending the initiative taken by him in the humanitarian field, Gravely alarmed at the rapid deterioration of the situation in Somalia and the heavy loss of human life and widespread material damage resulting from the conflict in the country and aware of its consequences on stability and peace in the region.

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The Secretary-General, Implementing the Responsibility to Protect, U.N. Doc. A/63/677 (Jan. 12, 2009). Having discussed the report of the Secretary-General, the General Assembly adopted a resolution by consensus on September 14, 2009, agreeing to continue discussion on responsibility to protect. See Press Release, Secretary-General, Secretary-General Welcomes Adoption of Text on Responsibility to Protect, U.N. Doc. SG/SM/12542 (Sept. 14, 2009).

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exercise, instead of placing pressure on the Security Council to act more responsibly, has turned into a platform for attacking “humanitarian intervention.”27 This is an example of the difficulties the 192-member United Nations has in providing substance in a meaningful and useful way to an important political and legal principle that has been identified, at the highest level of generality, as common interest. To maintain collective governmental support, such an exercise, will eventually have to turn into administrative, bureaucratic, and, at most, technical assistance for capacity building in ways that may endanger and trivialize the essential issue with which it was concerned. Realism should guard against any illusion about the capacity of large international organizations to concretize abstract but important political agreements into useful operational steps without undermining the core of the principle itself.

* One of the new inventions in international political and legal discourse is international criminal justice, which both as a concept and as an institutional structure has gained considerable attention. Most importantly, the international criminal justice system has assumed a central seat at the table in the United Nations political dialogue. While the Yugoslav and Rwanda Tribunals were set up as subsidiary organs of the Security Council, the Cambodia Tribunal, the Special Tribunal for Sierra Leone, and the Lebanon Tribunal are all various hybrids with the direct involvement of the United Nations. The International Criminal Court, while technically a treaty body independent from the United Nations, was negotiated through the United Nations. Hence, despite the early cold shoulder it received from the United States, it is very much alive in the debates at the United Nations dealing with conflicts in which serious crimes may have been committed. The point is that it has become increasingly difficult to avoid discussing justice issues in the context of political debates about attempts to stop on-going and bloody conflicts. This has increased the difficulties for the Security Council, which is often unable to mount a collective force to stop such conflicts and has to rely on negotiations, including with those who may have a direct or indirect hand in the atrocities. Criminal justice and issues of impunity are thus becoming issues that are assigned to international organizations. Now there is an International Criminal Court and

27

Even the Secretary-General’s Special Adviser for responsibility to protect said as much in a meeting he addressing the members of the General Assembly, Edward Luck said, “Unilateral armed intervention under the guise of humanitarian principles was – and is – seen as morally, politically, and constitutionally unacceptable.” See International Peace Institute, General Assembly Passes Resolution on Responsibility to Protect (Sept. 1, 2009), http://www.ipacademy.org/news/general-announcment/98-ipis-edwar (quoting Luck’s remarks to the General Assembly on July 23, 2009).

6 Mahnoush H. Arsanjani, The Uses and Abuses of Illusion in International Politics

precedents for establishing other hybrid special courts when there are outcries for justice. As desirable as this scenario may be, the reality is more sobering. Unlike the Nuremburg and Tokyo tribunals, which were created to address the atrocities committed after they were stopped by military intervention, modern international criminal justice institutions are created to deal with ongoing atrocities before they are stopped or the conflict leading to them is resolved. Here we find the illusion that international criminal courts will have deterrent, if not arresting effects. Even if one accepts this assertion, it does not apply to the commission of atrocities in an on-going conflict. Indeed, it may complicate the resolution of the conflict and the stopping of the atrocities.28 The international criminal justice system focuses on criminals and their eventual punishment, often, at the expense of the responsibility of the international community to protect the would-be victims by intervention.29 More worrisome is the use of international criminal institutions as a piece in a political chess game played by the international institutions themselves. The Security Council should not cover its inability or unwillingness to mount sufficient political or material force to resolve a conflict involving serious and widespread human perils by referring the situation to or creating a criminal court. The Yugoslav and Rwanda Tribunals and the referral of the Darfur situation to the International Criminal Court have not encouraged confidence in the ability of the Security Council to stop the atrocities. Rather they indicate a desire on the part of the Council to bring in courts and getting credit for its ostensible commitment to “justice.” This strategy tends to shift the focus and the burden from the international community to intervene and stop the crimes to punishing the party who commits the criminal act. For victims and would be victims, this is, alas, where the utility of illusion ends.30

* Within the Charter system, the powers assigned to the Security Council are impressive. By design, the Security Council has the authority to act as the Guardian Angel of international peace and security. The Charter’s restriction on the unilateral use of force for matters of importance to international community assumes the ability of the Security Council to act in ways that obviate unilateral uses of force. Even with its 28 29

30

See Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385 (2005). For a similar point, see Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000); Michel Feher, Powerless by Design: The Age of International Community 58 (2000); and Thomas W. Smith, Moral Hazard and Humanitarian Law: The International Criminal Court and the Limits of Legalism, 39 Int’l Pol. 175 (2002). Justice and impunity are rising as issues independent from the rest of the international political structure and governance issues, and acquiring a priority of their own. As such they have acquired importance in political discourse with unpredictable impacts.

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expanded membership, Council could still function relatively efficiently if its members wished it to. The Council is empowered to use multiple strategies and tools to address any threat to international peace and security, including economic sanctions and the use of force. But the illusion of power of the Council is highly exaggerated in two respects. First, the members of the Council must have common views, goals and interests about international crises and how they should be confronted; as we saw, they rarely do. Second, the Council must have the resources and cooperation of all states necessary to implement its decisions; it rarely does. Even in cases where there is a unity of views, goals, and interests in the Security Council, the limitation of resources and the reluctance of other states to comply are formidable obstacles. Two of the important tools at the disposal of the Security Council under the Charter are economic sanctions and the use of force. In numerous situations, the Council has used economic sanctions. But there are questions about the effectiveness of economic sanctions. Usually the leadership of a target state will not suffer enough to change course or change it soon enough. Nor will the leadership care if its population takes the brunt of such sanction as long as it does not have the ability to overthrow the government. In addition, there are always states, corporations, and individuals who will break the sanctions, directly or indirectly, for their own gain. In sum, the full force of economic sanctions is difficult to maintain. Use of military force whether for the purposes of peacekeeping under Chapter VI or enforcement under Chapter VII of the Charter is the most effective form of implementing the decisions of the international community. While the institution of peacekeeping operations has evolved since its first use in 194831 and now includes non-military personnel, the military remains the backbone of any peacekeeping operation. The United Nations does not have its own military force and has to rely on troop contributions from members states. Peacekeeping operations have been a growth industry for the United Nations. Currently there are 116,000 personnel serving in various peacekeeping operations around the world.32 More than 82,000 of these personnel are troops and military observers.33 But in too many cases the number of troops is insufficient to enable them to enforce their mandate effectively. As the need for more peacekeeping operations increases, the compromise on a reduced number of troops becomes more frequent. While in early years of peacekeeping operations, most troops came from European states, increasingly now troops are coming from developing countries. If peacekeeping operations have expanded significantly, there is less tolerance in developed states for casualties for the sake of some intangible common interest. Because there are domestic political costs, states are unable or unwilling to send their soldiers in harms way. In addition, the shift in European perspective about conflict resolution and the 31

32 33

The first peacekeeping operation was established by the Security Council in 1948 for the deployment of United Nations military observers in the Middle East to monitor the Armistice Agreement between Israel and its Arab neighbors. Fact Sheet – United Nations Peacekeeping, http://www.un.org/Depts/dpko/factsheet. pdf. Id.

6 Mahnoush H. Arsanjani, The Uses and Abuses of Illusion in International Politics

role of the military has affected their international outlook. Many European states see no military threat to their countries. They rely on a theoretical attack on collective defense, primarily through NATO. For all of these reasons, there are fewer military forces to contribute to an increasing number of peacekeeping operations. The success of any peacekeeping or enforcement operation depends on the level of training of the troops deployed and the equipment with which they are supplied. By contrast to the earlier peacekeeping operations, the major troop contributors are now developing states while the major financial contributors are developed states.34 Sometimes making troops available to UN operations by developing countries is a way of transferring hard currency to these states. There are serious questions about whether these troops are adequately trained or equipped. Insufficient numbers together with lack of proper training and material do not augur well for the success of operations. It has been suggested that in contemporary international crises, military intervention under Chapter VII of the Charter may sometimes be the most costeffective means of preventing a return to war in post-conflict societies.35

* The United Nations Charter and the foundation instruments of many international organizations are more than constitutive instruments; they were attempts to shape post-World War II international law and global political structure. Many states that came into existence as a result of decolonization and only then joined these organizations did not participate in drafting these instruments. For this very large group of states, the original intentions of the framers are not definitive of how these organizations should operate. For states that are entangled in the challenges of social and economic development or whose national security and stability continue to decay, international organizations are essential means for alleviating the suffering of their populations or for compensating for the incompetence of their internal elites or their inability to stand by themselves as independent and functional states. International organizations have become permanent fixtures in and indispensible to international political and legal structure. The survival and expansion of international organizations and their entrenchment in the global management of world 34

35

The top twenty major troop contributors to UN peacekeeping operations as of 31 March 2008 are: Pakistan, Bangladesh, India, Nigeria, Nepal, Ghana, Jordan, Rwanda, Italy, Uruguay, Senegal, China, France, Ethiopia, South Africa, Morocco, Benin, Brazil, Spain, and Egypt. The top twenty financial donors are the United States, Japan, Germany, United Kingdom, France, Italy, China, Canada, Spain, Republic of Korea, Netherlands, Australia, Russian Federation, Switzerland, Belgium, Sweden, Austria, Denmark, and Greece. See id. Paul Collier & Anke Hoeffler, The Challenge of Reducing the Global Incidence of Civil War (Mar. 26, 2004), http://www.copenhagenconsensus.com/Files/Filer/CC/Papers/ Conflicts_230404.pdf.

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politics are helpful in reducing, if not removing, opportunities that, in the past, led to major wars. States are now restrained, not from all forms of use of force, but from the more serious ones and, certainly, from the acquisition of territory by force. International institutions have changed the culture of dispute resolution in many ways; the order of the day is peaceful means and judicial review. International organizations have become manufacturers of international rules and regulations, pushing the notion of customary international law into a corner. While created by states, international organizations are slowly minimizing the heretofore almost exclusive importance of states by incremental but sustained incorporation of non-governmental organizations and entities into decision-making process. The enormous humanitarian relief operations of international organizations are often the only sign of hope seen by millions of human beings who have become refugees caused by man-made or natural disasters. But the illusion of a world governance system run by or through international organizations should be grounded in the reality of the constant evolution of international political structures. International organizations only mirror the politics outside. The dynamic reality of international organizations does not correlate with the appearance of unity and collective willingness which they convey. International organizations are institutionalized global multilateral diplomacy among states and other actors with varying influence and sometimes conflicting interests. They are fora for various groupings of states that operate in shifting alliances whose composition is shaped by the issues at hand. Where there is real consensus among states on a particular issue, international organizations, if provided with sufficient resources, can operate effectively. However, national and special interests remain great obstacles. It is not unusual for states to attempt to use international organizations to advance national interests or to see how they can incorporate national interests into the articulation of common interest. The fact remains that there are still differences among states about what the future ought to look like. Scarcity of resources and shifting domestic priorities have, in some important ways, diminished the possibility for use of more effective economic or military strategies by international organizations. One need only reflect on the diminishing force of those decisions of international organizations that are directed at persistently non-cooperative or rogue states. Until now, international organizations have been reasonably effective in prescribing international law, whether it was the codification of prior customary international law or the development of innovative human rights law. But now, one can anticipate a reduction in states’ enthusiasm for prescriptions by international organizations that purport to limit state power. In contrast to the impressive record of prescription, international organizations have been markedly less effective at implementation. But implementation is an indispensible component of governance. Persistent failures of implementation may ultimately undo important prescriptive gains and moreover, hollow out the expectation of law and what had been the illusion of meaningful prescriptions.

Chapter 7 Prelude to Decision: Michael Reisman, the Intelligence Function, and a Scholar’s Study of Intelligence in Law, Process, and Values James E. Baker*

In Jupiter as Everyman, I described Michael Reisman’s contributions to the field of national security law.1 Michael is Jupiter because he is a Scholar-Teacher, not one or the other, but both.2 In this manner, Michael fulfills the description that Whit Griswold, former President of Yale University, ascribed to the academic as scholar and teacher: “The scholar is … Man Thinking[,] … the citizen performing the function appointed for all citizens in a civilized state, … purposefully apprehending the meaning of things.”3 As a scholar, Michael’s work contributes to the meaning of things because his work is realistic, value-based, and practical. He describes the law as it is, not as he wishes it might be, appreciating the distinction between the operational code in international law and the aspirational code or normative myth system.4 The operational code is the law that matters, because that is the law critical actors feel bound to follow.

*

1 2

3 4

The views expressed herein are those of the author and do not necessarily represent the views of the U.S. Government or any organization within the U.S. Government. That being said, the author is grateful to Ashlea Thomas and Emily Wann for their interest, comments, and editing. Without them this chapter could not have been produced. Likewise, David Koplow and Thomas Odell provided insightful and helpful comments. James E. Baker, Jupiter as Everyman: Michael Reisman and the Scholar as Teacher, 34 Yale J. Int’l L. 533 (2009). I chose Jupiter because Michael is fond of the phrase “quid licit jovi, non licit bovi,” which means “Jupiter may do what mere cows cannot.” This phrase tells us a fair bit about international law and practice in six quick words. A. Whitney Griswold, Liberal Education and the Democratic Ideal 36 (1959). See W. Michael Reisman, Some Reflections on International Law and Assassination Under the Schmitt Formula, 17 Yale J. Int’l L. 687, 689 (1992) (“A jurist’s work is not discharged by a description of the formal normative code of the myth system and the operational code that may depart from it.”); W. Michael Reisman, War Powers: The Operational Code of Competence, 83 Am. J. Int’l L. 777, 777 n.3 (1989) (“By operational code is meant a set of norms that operate in a certain sector and that actors deem to be authoritative even though the norms may be inconsistent with formal legal codes. The operational code is

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 73-118.

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However, Michael’s work is also value-based, in part because he does not accept the law at it is; he seeks to guide the law to preferred outcomes. [I]t is not sufficient for the scholar simply to identify and assemble trends in decision. Trends must then be tested against the requirements of world public order as a means of assessing their adequacy. Insofar as they are found wanting, scholars should take the responsibility of proposing alternative arrangements so that a better approximation of political and legal goals can be achieved in the future.5

Michael does this by projecting future trends, showing decision-makers how to shape the law to reach preferred outcomes, and promulgating procedural and substantive guidelines. Moreover, Michael’s scholarship is practical because it moves beyond substance to the multi-disciplinary study of process and practice. “[L]aw … is about making decisions.”6 Thus, one must improve the process of decision if one seeks to improve the substance of decision. However, in order to do so, one must first understand the role of law in this process of decision and appreciate what Michael would refer to as “power processes.”7 One must also account for the structural pathologies endemic to national security, and perhaps especially to intelligence, such as speed, secrecy, and groupthink. As a teacher, Michael demonstrates many of the traits necessary to meaningfully practice national security law. First, he is equally as committed to the concept of physical security as he is to values security. The two are inexorably linked. Security means not only physical safety, but also the sense of secure space that allows us to carry on a way of life that is diverse and tolerant. This liberty interest entails the preservation of our constitutional values, including those values based on due process and tolerance, but also the commitment to physical defense found in the Preamble to the U.S. Constitution and the enumerated articles that follow. Second, Michael is rigorous, fair, and even a bit humble. Realizing what you do not know is often as important as affirming what you do know, and this is certainly the case with intelligence. Third, he leads by example because he practices what he teaches. In this chapter, I consider Michael as the Scholar-Teacher with regard to the intelligence instrument. Each section of this article emphasizes one of four points. First, in a field that is generally remote to and unwelcoming of outsiders, Michael displays an uncommon, perhaps uncanny, understanding of the intelligence process.

5 6 7

normative but is inferred from past practice and projections of future trends, rather than from documents alone.”). W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l L. 3, 6 (1999). W. Michael Reisman, Covert Action, 20 Yale J. Int’l L. 419, 420 (1995). See, e.g., Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807, 900 (1988) (discussing power process, which is “[t]he most decisive value process in the world community” and in which “the state is still the predominant participant”).

7 James E. Baker, Prelude to Decision

This understanding begins with a definition of the term that captures the purpose of intelligence, including its core mission—the collection of information to inform better decision.8 A good definition also grasps the scope of the function, in volume and subject. Thirty years before the Department of Homeland Security (DHS) and the Office of the Director of National Intelligence (ODNI) were created to (again) “connect-the-dots,”9 Michael was writing about the necessity of selectivity and economy in processing intelligence stimuli.10 He was also dissecting the capacity of decisionmakers to process what was then an untenable volume of information. Today, that volume measures in bytes by the quadrillions.11

8

9

10

11

See Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The Intelligence Function and World Public Order, 46 Temp. L.Q. 365 (1973), reprinted in Myres S. McDougal & W. Michael Reisman, International Law Essays 287 (1981) (“The intelligence function comprises the gathering, evaluation and dissemination of information relevant to decision-making, and may include prediction based on such information, as well as planning for future contingencies.”). See Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 1011(a), 118 Stat. 3638, 364 (2004) (codified at 50 U.S.C. § 403 (2006)) (establishing the DNI); Homeland Security Act of 2002, Pub. L. No. 107-296, § 101, 116 Stat. 2135, 2142 (2002) (codified at 6 U.S.C. § 111 (2006)) (establishing DHS); Siobhan Gorman, Security: In Cities, the Fight Against Terrorism Walks the Beat, Wall St. J., Nov. 25, 2008, at A9 (“Ever since 9/11, the connect-the-dots problem has preoccupied law-enforcement and intelligence agencies.”). See McDougal, Lasswell & Reisman, supra note 8, at 294 (“The body of potentially relevant intelligence is so enormous, and the man hours of attention are so few, that one of the principal criteria of a sound intelligence operation refers to selectivity.”). Michael and his fellow authors also note that the scope of intelligence needs is “spatially coterminous with the very limits of the earth-space arena, extends temporally from the distant past into a future whose foreseeability is a function of man’s capacity to engage in systematic prediction, and ranges over every critical value process in diverse and changing contexts.” Id. at 297. Economy is thus essential because “resource allocation for the intelligence process is necessarily limited.” Id. As Leonard Klie has explained: Not surprising, some intelligence industry sources have said that data obtained each month by agencies like the CIA, Department of Homeland security, FBI, National Security Agency, State Department, Defense Department, and countless others is leading to a government information overload. The data collected cannot be measured in bytes, gigabytes, or even terabytes, but rather in petabytes—one petabyte is the equivalent of 1 quadrillion (that’s a 1 followed by 15 zeros) bytes of information, or enough data to fill the Library of Congress 50 times.

Leonard Klie, Good Enough for the G-Men, Speech Technology, July-Aug. 2008, available at http://www.speechtechmag.com/Articles/Editorial/Feature/Good-Enough-forthe-G-Men-49912.aspx; see also Tom Burghardt, Precrime and Punishment: The FBI’s New Era of Terror, Pacific Free Press, May 3, 2009, http://www.pacificfreepress.com/ new/1/4095-precrime-and-punishment-the-fbis-new-era-of-terror.html (comparing the 997,368,450 “unique searchable documents” in the FBI’s Investigative Data Warehouse with the 138,313,427 items in the Library of Congress collection).

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Second, as Part II describes, Michael’s work is value-based. Three goals of intelligence are emphasized. The first goal is for intelligence to inform decision, which improves decision. Is this point intuitive? Yes. Practiced? Not always. It is easy to take one’s eye off of sound intelligence process if one is committed to a policy outcome or focused on the immediacy of the problem presented. Moreover, “[i]t is generally admitted that decisionmakers tend to divert their attention from proposals that seem to contradict their assumptions.”12 As Senator Moynihan quipped, “everyone is entitled to their own opinions, but they are not entitled to their own facts.” The second goal is for intelligence to offer a source of stability in maintaining international public order. A state that collects intelligence regarding intent and capacity may be less likely to misread or misapprehend the ambiguous conduct of a potential adversary. That state may also have a more sophisticated grasp on how to read intent, and the myriad of other factors (threatening and unthreatening) that might inform a foreign government’s actions, just as U.S. actions may be informed by both foreign and domestic factors and reflect more than one singular viewpoint or objective. The third goal is for intelligence to serve the interests of stability and security by offering a means to prevent surprise. “The task of intelligence services that protect incipient world order will be to guard against surprise.”13 Part III considers in brief the relationship between international law and the intelligence instrument, emphasizing transnational law and the application of international law through foreign domestic implementation. Michael has described the tension in international law between the intelligence function and the principles of territorial integrity and non-interference.14 In spite of this tension, international law has not sought to proscribe the intelligence function per se. However, Michael has identified conditioning factors that may influence whether critical actors consider specific intelligence conduct lawful or unlawful under international law.15 International law, it appears, is more tacitly tolerant of the intelligence function where activities fulfill one of the value-based goals described above. International law is less tolerant where the intelligence function intrudes upon individual rights and liberties. This is a trend that Michael identified in 1973.16 The trend has continued, and is manifest in ongoing debates about interrogation and rendition, as well as in a continuum of practice and response from Adolf Eichmann to Binyam Mohamed. Once the goals of intelligence are understood, good intelligence ultimately depends on good process. Accordingly, Part IV focuses on the process of intelligence. Michael breaks the intelligence instrument down into its component functions—collection, analysis and dissemination, counterintelligence, liaison, and covert action.17 12 13 14 15 16 17

McDougal, Lasswell & Reisman, supra note 8, at 294. Id. at 351. Id. at 310-11. Id. at 311. Id. See generally W. Michael Reisman & James E. Baker, Regulating Covert Action 358 (1992).

7 James E. Baker, Prelude to Decision

He breaks these overriding functions into their constituent parts, as well. Michael’s analysis is practical, but also value-based, because good process results in more informed decision-making, which, for a democracy, means a process that effectively considers sometimes competing security and legal values. His criteria for sound intelligence are as apt today as they were in 1973, suggesting that (as Sherman Kent argued) there are enduring truths to the intelligence function, intelligence reforms notwithstanding. I. Intelligence Realistically Defined As is well known, Michael is a prolific author. He speaks, as well as writes, in perfect publishable prose. He has produced at least twenty-two books and over 270 articles.18 However, at first glance, intelligence does not appear to be a core topic in the Reisman oeuvre; he is most recognized for his work in international law and jurisprudence. Nonetheless, he has produced two full-length treatments on the subject of intelligence. Regulating Covert Action, which I co-authored with Michael, addresses covert action in U.S. and international law with reference to specific incidents and tools.19 In addition, The Intelligence Function and World Public Order, originally published in 1973 and republished in International Law Essays in 1981, is a comprehensive study of the subject of intelligence collection and process.20 In my view, The Intelligence Function is as relevant today as it was in 1973, which suggests the existence of timeless principles in the intelligence field, even as the field of analysis has undergone important procedural changes.21 Moreover, Michael’s many articles on the use of force consider the intelligence function as an integral element of decision, as reflected in his article on responses to terrorism: “A standard method of anticipatory response to terrorism is the gathering of intelligence. In domestic legal systems of modern constitutional democracies, intelligence gathering is an acutely sensitive issue, precisely because it has the potential for infringing on privacy and many protected rights.”22 Thus, on second look, intelligence is omnipresent in Michael’s work, including, and in particular, his work on the use of force. Furthermore, as Michael’s students and friends know, it is a rare dinner or office visit that does not include a discussion of current events. And these discussions of current events inevitably turn to the intel18 19 20 21

22

W. Michael Reisman, Myres S. McDougal Professor of International Law, Publications, http://www.law.yale.edu/documents/pdf/Faculty/WMReisman_pubs.pdf. Reisman & Baker, supra note 17. McDougal, Lasswell & Reisman, supra note 8. National Intelligence Assessment on the National Security Implications of Global Climate Change to 2030: Hearing Before the Permanent Select Comm. on Intelligence and the H. Select Comm. on Energy Independence and Global Warming, 110th Cong. 17 (2008) (statement of Dr. Thomas Fingar, Deputy Dir. of Nat’l Intelligence for Analysis and Chairman of the Nat’l Intelligence Council), available at http://www.dni.gov/testimonies/20080625_testimony.pdf. Reisman, supra note 5, at 15.

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ligence process and product that informed (or failed to inform) the decision under discussion.23 An understanding of the intelligence instrument starts with an understanding of the term “intelligence.” This gives policymakers, operators, and lawyers a baseline against which to measure efficacy and allocation.24 Here are Michael’s definitions: 1.

2.

The intelligence function comprises the gathering, evaluation and dissemination of information relevant to decision-making, and may include prediction based on such information, as well as planning for future contingencies.25 [T]he gathering, processing and dissemination of problem-identifying and problemsolving information.26

Three points warrant emphasis. First, Michael’s definition is realistic and succinct. It is also function-based, rather than qualitative. “Intelligence” tells you how information was derived and through what process it was disseminated; it does not necessarily reflect dependability. Michael’s eye is on the intelligence instrument’s core competency and function—the gathering of information relevant to decision-making, whether that occurs on a national and strategic level or a local and tactical level. Neither has he lost track of the instrument’s limitations. The real test of the effectiveness of the intelligence function, whatever the community, is its meaningful contribution to more rational performance and decision-making and the accurate prediction of future threats and trends. And that ultimately depends on decision-makers, includ23

24

In fact, I was invited to write Regulating Covert Action with Michael based on a single comment I made in class about electronic surveillance. It was my only comment in class, but it led to an office discussion about intelligence generally and then to the book. As a point of comparison, here is a definition found in the 2008 Amendments to the President’s Executive Order on United States Intelligence Activities: “Foreign intelligence means information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists.” Exec. Order No. 13,470, 73 Fed. Reg. 45,325, 45,340 (July 30, 2008). Another definition is found in the Intelligence Reform and Terrorism Prevention Act of 2004, which created the office of the DNI: The terms “national intelligence” and “intelligence related to national security” refer to all intelligence, regardless of the source from which derived and including information gathered within or outside the United States, that – (A) pertains, as determined consistent with any guidance issued by the President, to more than one United States Government agency; and (B) that involves – (i) threats to the United States, its people, property, or interests; (ii) development, proliferation, or use of weapons of mass destruction; or (iii) any other matter bearing on United States national or homeland security.

25 26

Intelligence Reform and Terrorism Prevention Act of 2004 Pub. L. No. 108-458, § 1012, 118 Stat. 3638, 3662 (codified at 50 U.S.C. § 401a (2006)). McDougal, Lasswell & Reisman, supra note 8, at 287. Id. at 353.

7 James E. Baker, Prelude to Decision

ing presidents, who understand intelligence and are prepared to act upon it. “[T] he utility of the most accurate and timely intelligence depends on a decision maker capable and willing to use it.”27 Second, long before contemporary debates about the intelligence functions of “non-traditional” agencies like DHS, Centers for Disease Control and Prevention, and the U.S. Department of Agriculture, Michael understood that the challenge of intelligence is one of both breadth and specificity. For example, Michael recognizes that intelligence information is derived from multiple agencies and multiple sources, not just widely-known intelligence sources and methods. “Much attention has been directed to the security intelligence agencies of modern governments. … Yet these agencies perform only a fraction of the intelligence gathering, processing, and dissemination of modern government.”28 Due to the sheer volume of intelligence, Michael’s definition also accounts for the distinction between noise, on the one hand, and actionable intelligence on the other. “The individual receptor—human or mechanical—is inundated by a barrage of sensory stimuli which it is practically incapable of ingesting; were it so capable, its system would be overloaded and broken, or it could not effectively digest what it had received.”29 For this reason, the intelligence function should place as much emphasis on processing and disseminating information as it does on collecting it. The Reisman definition does so. If the official possessing the authority and responsibility to respond does not receive the intelligence, then that intelligence is not actionable. Think here of the examples of intelligence found within the U.S. Government after the 9/11 and Pearl Harbor attacks.30 The challenge of processing and disseminating intelligence is more acute today than ever, given that 2,000 cables containing 5,000 to 7,000 names are swept into the intelligence instrument each day.31 Finally, Michael’s definition addresses a core function of the intelligence instrument—prediction and projection. The importance of this function is seen with respect to the value-based purposes of the intelligence function.

27 28 29 30

31

Id. at 287-88. Id. at 298. Id. at 290. Nat’l Comm’n on Terrorist Attacks upon the U.S., The 9/11 Commission Report (2004) [hereinafter 9/11 Commission Report]; Richard A. Posner, Preventing Surprise Attacks Intelligence Reform in the Wake of 9/11 (2005); Roberta Wohlstetter, Pearl Harbor: Warning and Decision (1962). See Kevin Whitelaw, The Eye of the Storm, U.S. News & World Rep., Nov. 6, 2006, at Special Report (reporting the amount of intelligence processed daily by the National Counterterrorism Center); David E. Kaplan & Kevin Whitelaw, Playing Defense, U.S. News & World Rep., Nov. 13, 2006, at Special Report (predicting that “30 percent of the imagery collected by U.S. spy agencies goes unexamined,” and “the [intelligence] community produces some 50,000 analytical reports a year, many of them redundant and unread”). “‘In the Cold War, we struggled to get data,’ says John McLaughlin, a former deputy CIA director. ‘Today, the problem is that there is too much data-more than we can handle.’” Id.

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II. Value-Based Purpose 80

Intelligence performs at least three essential public order functions. It informs decision-making. It offers a mechanism that can provide contextual stability to relationships that might otherwise lean or spiral toward the unstable. And, in a related manner, intelligence can prevent surprise, including surprise attack. These three functions have played a role in many of the intelligence failures in American history: Pearl Harbor (surprise); weapons of mass destruction (WMD) in Iraq (informed decision, stability); the Chinese crossing the Yalu River into the Korean War (stability and surprise); the fall of the Shah and subsequent rise of the Ayatollah in Iran (informed decision, stability, and surprise); the collapse of the Soviet Union (stability); and of course, on a tactical level, 9/11 (surprise). A. Informed and Contextual Decision Intelligence is not an end in itself, although it is sometimes treated that way. It is a means to an end—informed decision. “We are concerned with authoritative decision; our interest in intelligence derives from the dependence of rational decision on knowledge. Our task is to identify the optimum procedures for gathering, processing and disseminating intelligence for constitutive and public order decision … .”32 Hence, it is better to have one modest human source in an Al Qaeda cell in Waziristan than to have thirty well-placed colonels feeding order of battle information from Central America. The former addresses a core national security threat and informs decisionmaking; the latter likely fills file reports on the shelves of bureaucratic specialists. Intelligence, in the Reisman lexicon, is one of the “seven … functions of decisionmaking.”33 “For authoritative decision-making and execution, the need for intelligence permeates every facet of decision.”34 It is for this reason that the Director of National Intelligence (DNI) is by statute an “advisor” to the National Security Council (NSC), as well as a member of the Principals Committee.35 Before the position of DNI was created, the Director of Central Intelligence (DCI) was also a member of the NSC and Principals Committee.36 It is a rare, if not unique, NSC or Principals Committee meeting that does not start with an intelligence update from the DNI. In such cases, the meeting will also likely start with an operational brief from the Chairman of the 32 33 34 35

36

McDougal, Lasswell & Reisman, supra note 8, at 287 n.1. Reisman, supra note 8, at 1, 4. McDougal, Lasswell & Reisman, supra note 8, at 288. Presidential Policy Directive No. 1, Organization of the National Security Council System (Feb. 13, 2009), available at http://www.fas.org/irp/offdocs/ppd/ppd-1.pdf; Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 1011(a), 118 Stat. 3638, 3644 (codified at 50 U.S.C. § 403 (2006)). National Security Presidential Directive No. 1, Organization of the National Security Council System (Feb. 13, 2001), available at www.fas.org/irp/offdocs/nspd/nspd-1.htm; Presidential Decision Directive No. 2, Organization of the National Security Council (Jan. 20, 1993), available at http://fas.org/irp/offdocs/pdd/pdd-2.htm.

7 James E. Baker, Prelude to Decision

Joint Chiefs of Staff (Chairman) or a threat assessment from the Director of the Federal Bureau of Investigation (FBI). The DNI and the Chairman were not always integral members of the NSC and the NSC process. Nor is the relationship always an easy one. When Henry Kissinger became National Security Advisor in 1968, he instituted a practice of having the DCI and Chairman brief the NSC or the Principals and then leave the Situation Room while policymakers considered the options.37 In this way, intelligence would be insulated from the risk of politicization (and perhaps, policymakers might be insulated from the uncomfortable presence of contrary facts). The theory may have been sound, but the practice was not. It didn’t work. Because “[t]he need for intelligence permeates every facet of decision,”38 Kissinger soon determined that the DCI and Chairman should remain in the meetings to inform policy discussion. This anecdote illustrates a further point. The line between policy and intelligence can be a thin or elusive one, particularly when it is intelligence information that dictates whether a policy option is legally available or not, or is the predicate for decision in the first instance. The National Security Act seeks to address the tension that sometimes exists between policy choice and professional knowledge by designating the DNI and Chairman as statutory advisors to the NSC rather than members of the NSC.39 Of course, presidents, as a matter of constitutional practice, may select members of their own NSC, and, in fact, presidents routinely include both the DNI and Chairman as members of the NSC and Principals Committee. In practice then, rather than as a matter of law, each DNI and Chairman must define and refine their own sense of how the line between professional input and policy-making function should be drawn, if it is drawn at all. Not surprisingly, each DNI and DCI before has exhibited a distinct style and left a different footprint behind in the Situation Room. One need not be privy to classified information to appreciate that there is a difference in style and outlook between a William Casey, known for his aggressive policy positions regarding the covert Contra conflict in Central America, and a William Webster, brought in after the Iran-Contra affair to offer a judicious and studied approach to intelligence. But caution: the full picture as to how these roles are played emerges through consideration of not only what happens in the Situation Room but also the one-on-one relationships between the Chairman and the Secretary of Defense on the one hand and between the DNI and the National Security Advisor (APNSA) as the President’s intelligence alter ego on the other. For example, a DNI who holds back in a Principals’ meeting may play a more visible role behind the scenes, conveying information directly to the President, or through the APNSA to the President.

37

38 39

Cody M. Brown, The National Security Council: A Legal History of the President’s Most Powerful Advisors 36 (2008), available at http://pnsr.org/data/ images/the20national20security20council.pdf. McDougal, Lasswell & Reisman, supra note 8, at 288. National Security Act of 1947, as amended, 50 U.S.C. § 402(e) and (j) (2006).

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The intelligence function does not always align with decision-making needs.40 Alignment disconnects can reflect good-faith differences in policy priorities, as well as shifting policy priorities. Such disconnects may also reflect the persistent bifurcation and tension in American intelligence practice between military and tactical intelligence on the one hand,41 and national and strategic intelligence on the other.42 Additionally, bureaucratic incentives and policies, such as retirement benefits and promotion opportunities, have an impact on intelligence capacity and may cause disconnect. An intelligence officer who wishes to marry and raise a family may not wish to spend all of a career overseas or in the countries where the greatest need for intelligence gathering against hard targets exists. Similarly, officers may find promotion is measured by success, such as the number of agents recruited, rather than by wellintentioned failures to penetrate hard targets. Of course, not all incentives, legal and cultural, point in one direction, and not all officers calibrate conditions in the same manner, although patriotism is surely a weighted factor. The case officer responsible for breaking the AQ Khan network, for example, worked the case for eight consecutive years. This is the sort of constant dedication that may break hard targets, but may not be a template for promotional success. Difficult problems do not have easy solutions. As water will find the path of least resistance, terrorist cells will move from one failed state to the next to evade discovery and capture or move toward softer targets. Thus, even the most attentive and nimble intelligence service and policy apparatus may find that its intelligence falls short when it comes to hard targets in hard locations. One way of addressing alignment is to maintain the capacity to “surge,” as a military reserve might surge, through the maintenance of a deployable reserve capacity or bench. The concept is sound, and it is a necessary component of any intelligence discussion today. But, like most intelligence solutions, a surge is hard to execute and is no panacea. One cannot surge a language capacity if the language base is small from the beginning.43 Moreover, meaningful access and agent recruitment is not usu40 41

42

43

An insider’s debate here would likely focus on the selection of the proper qualifying adverb: “rarely,” “never,” or perhaps “often.” Tactical and military intelligence orients toward the operational needs of military field commanders with a focus on the immediate, for example what is over the next hill. In the civilian context, tactical intelligence orients toward the implementation of policy. In bureaucratic terms, a majority of the tactical intelligence instruments operate under Department of Defense authority and appropriations. Strategic intelligence draws on all sources of information and all intellectual disciplines to help national (and, in military context, theater-level) decision-makers craft strategy, inform policy, define national security plans, and project future trends. In bureaucratic terms, a majority of the formal strategic intelligence instruments, like the National Intelligence Council, are civilian in character and operate under ODNI or departmental authorities and appropriations. Of course, any actor who is participating in formulating policy or implementing policy engages in the processes of both strategic and tactical intelligence analysis. See Joby Warrick, CIA Announces Push to Improve Agency’s Language Proficiency, Wash. Post, May 30, 2009, at A5 (“In addition to doubling the number of officers competent

7 James E. Baker, Prelude to Decision

ally derived from the rapid influx of money and personnel. Accessing a useful agent base may take years. A non-official cover agent cannot embed in a week. Nor, as a matter of training and cost, can a service sustain all capacities in all locations. This invariably places added pressure on the liaison tool, the exchange of information and in some cases capabilities between friendly intelligence services, like-minded intelligence services, and even opposition services with common interests in a particular moment in time.44 Liaison thus offers access to geographic regions and sources of information that would otherwise remain beyond U.S. reach.45 However, there are risks as well as benefits to any liaison relationship. For both sides, there is increased risk that sources and methods of collection will be intentionally or unintentionally disclosed, and such disclosure may chill recruitment. In addition, there is less opportunity, if any, to validate foreign sources and methods of collection. The United States may find itself culpable both morally and policy-wise for the manner in which the information was collected. The converse is also true. At root, liaison is based on reciprocity; you give to get. Thus, the United States may assume a measure of moral and policy responsibility for how its information is used, without a commensurate capacity to control.

44

45

in certain ‘mission-critical’ languages, the agency seeks to increase by 50 percent the number of analysts fluent in the dialect of the culture or region to which they are assigned, [CIA Director Leon] Panetta said.”); Pete Eisler, CIA Still Lacking on Language Skills; But 5-year Push for Hires Nets 70 Gain, USA Today, Apr. 20, 2009, at 1A (“Just 13 of CIA employees speak a foreign language nearly five years after the 9/11 Commission urged the agency to expand its ranks of bilingual operatives and analysts to help thwart future terrorist attacks.”). See, e.g., Scott Shane, C.I.A. Role in Visit of Sudan Intelligence Chief Causes Dispute Within Administration, N.Y. Times, June 18, 2005, at A7 (“A decision by the Central Intelligence Agency to fly Sudan’s intelligence chief to Washington in a C.I.A. jet in April set off a dispute inside the Bush administration, with some officials arguing that such recognition for a government accused of genocide and ties to terrorism sent a regrettable signal  …  .”). Defending the move, a CIA official responded: “‘The purpose of this visit was to continue to build a stronger professional relationship between two intelligence services … . For years the C.I.A. was forbidden to meet with anyone who didn’t qualify for choirboy. After 9/11 it became clear that you have to talk to bad guys from bad neighborhoods to fight terrorism.’” Id. As explained by Stephen R. Kappes: A “liaison relationship” is a cooperative and secret relationship between the CIA and an entity of a foreign government. Most CIA liaison relationships are with another country’s intelligence or security services. A liaison relationship is an information-sharing agreement. Liaison relationships between the CIA and other foreign intelligence or security services are initiated and continued only on the basis of a mutual understanding that the fact, nature, and details of the liaison arrangements will be kept in the utmost secrecy.

Declaration of Stephen R. Kappes at ¶ 40, Wilson v. McConnell, 501 F. Supp. 2d 545 (S.D.N.Y. 2007) (No. 07 Cv. 4595) [hereinafter Kappes Declaration], available at http:// www.fas.org/sgp/jud/wilson/kappes071807.pdf. For further discussion of the liaison tool, see also James E. Baker, In the Common Defense: National Security Law for Perilous Times 159-62 (2007).

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Presidents use policy oversight and directives to align the intelligence function with the decision-making function. Directives are formal mechanisms, like Executive Order 13,470,46 Presidential Decision Directive 35,47 and National Security Presidential Directive 26.48 In the area of covert action, presidents have directed annual reviews to ensure that U.S. activities are consistent with policy, accomplishing intended results, adequately resourced, and lawful.49 This process of appraisal appears to be a point of special emphasis, at least on paper, for the Obama Administration.50 Alignment is also addressed on a daily basis through the formal and informal contacts between policymakers and intelligence operators. Indeed, this may be the most important and effective form of ongoing appraisal … when it occurs. Among other things, the informal session is more likely to include lower level operatives with direct knowledge of the field. And these sessions are more likely to invite candid commentary. First, the commentary is candid because these sessions are less likely to be generated from talking points, which, as they travel up the chain of command, can lose their color, context, and passion. Second, the commentary is candid because these sessions are not shared with a full policy audience, like a Deputies or Principals Committee, which means that operatives may be less inhibited or cautious.51

46

47 48 49 50

51

Exec. Order No. 13,470, 73 Fed. Reg. 45,325 (July 30, 2008); see, e.g., id. § 1.2(a) (Purpose: “The National Security Council (NSC) shall act as the highest ranking executive branch entity that provides support to the President for review of, guidance for, and direction to the conduct of all foreign intelligence, counterintelligence, and covert action, and attendant policies and programs.”); id. § 1.3 (Director of National Intelligence: “Subject to the authority, direction, and control of the President, the Director of National Intelligence (Director) shall serve as the head of the Intelligence Community, act as the principal adviser to the President, to the NSC, and to the Homeland Security Council for intelligence matters related to national security, and shall oversee and direct the implementation of the National Intelligence Program and execution of the National Intelligence Program budget.”). Presidential Decision Directive 35, Intelligence Requirements (Mar. 2, 1995), available at http://www.fas.org/irp/offdocs/pdd35.htm. National Security Presidential Directive 26 (not publicly released). Exec. Order 13,470, 73 Fed. Reg. at 45236 (§ 1.2(b)). Memorandum from James Jones, National Security Advisor, to NSC Principals Committee members (and designated invitees) 4 (Mar. 19, 2009), available at http://www.ndu. edu/icaf/publication/nspp/docs/wh-memo-nsc-3-18-09.pdf. The law also seeks, through the use of personnel and financial incentives, to encourage officers to deploy overseas and to do so in the hardest locations. See Life at CIA—Benefits, https://www.cia.gov/careers/life-at-cia/benefits.htmlret (“Minimum retirement age under FERS [Federal Employment Retirement System] is dependent on date of birth, but ranges from age 55 to 57. After completing five years of qualifying overseas service, FERS participants may be eligible to participate in the FERS CIA Special Category retirement system. FERS Special allows an employee to retire at age 50 with 20 or more years of service.”).

7 James E. Baker, Prelude to Decision

B. Stability In addition to informing decision, intelligence can serve as a source of stability between nations to the extent it helps decision-makers discern between threat and posture and allows them to comprehend intent where facts alone tell not. Consider the role that intelligence played, or did not play, during August 1914 as World War I began, or during the Cuban Missile Crisis. Intelligence information, derived from all sources, can fill in the outlines of intent that raw facts may not convey. Yet an absence of intelligence can also maintain stability. When actors do not have a good understanding of the strengths and weaknesses of their opponents, they may hesitate to use force. This imperative for stability was made all the more profound with the advent of the nuclear age. This is how Michael described the situation at the height of the Cold War: “The key to the contemporary global security system is a reliable and unremitting flow of intelligence to the pinnacle elites of the nuclear powers.”52 Thus, “[i]n an ironic way, snooping on the snoops is also in the common interest of adversaries. Knowing what’s vital to an adversary and what it intends and is capable of reduces the risk of errors of perception and facilitates ongoing non-violent adjustments.”53 Intelligence as a potential source of stability is not a matter of academic theory. During the Cold War, intelligence practitioners understood this necessity as well, to a degree: “The missiles were real, but both powers had learned to deal with each other. We had rules of the road even between the KGB and CIA. And so there was a fair amount of predictability; we kind of observed red lines.”54 The “rules of the road” may be more elusive today, but they remain important nonetheless. Officers at the North American Aerospace Defense Command (NORAD), for example, must still distinguish daily between a flight of Russian bombers with hostile intent and a flight on a training mission or on an intelligence collection mission to assess U.S. reaction. Some rules of the road are formalized, as in the case of diplomatic and intelligence officers serving under official cover. These rules are known as the Vienna Conventions on Consular and Diplomatic Relations.55 As Michael noted some time ago, these conventions recognize that “[e]ffective embassies are in the common interest. Embassies that can’t collect information and relay it back in secrecy to their governments are

52 53 54

55

McDougal, Lasswell & Reisman, supra note 8, at 343. W. Michael Reisman, Accord on Embassy Espionage Would Ease U.S.-Soviet Tensions, New Haven Register, Sept. 11, 1988, at B3. John Barry, “That Was Amateur Night”: Robert Gates Dueled with the Soviets, but even He’s Daunted by Today’s Challenges, Newsweek, Nov. 3, 2008, at 42 (interview with Secretary of Defense Robert Gates). Vienna Convention on Consular Relations, done Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; Vienna Convention on Diplomatic Relations, done Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.

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ineffective.”56 In this context, the remedy for violating the rules of the road was usually the exercise of the persona non grata mechanism. The practice continues today.57 However, one might reasonably ask just how stable the rules of the road are, and whether they remain as constant as they once may have seemed. Consider certain aerial and nautical incidents with China. In 2001, a Chinese fighter forced down a U.S. P-3 surveillance aircraft near Hainan Island.58 In 2009, in at least four separate incidents, Chinese trawlers harassed and challenged U.S. vessels in international waters in the South China Sea.59 In the most widely reported of these incidents, Chinese trawlers impeded the sonar surveillance vessel Impeccable sailing within the Chinese Exclusive Economic Zone (EEZ), seventy-one miles off Hainan Island and the naval base at Yalin.60 Were these anomalies, perhaps generated by human error, or breakdowns in the “military-civilian-party” chain of command? Or do they represent an intentional pattern of conduct, intended to challenge the concept of passive intelligence collection? The occurrence of four separate nautical incidents suggests purpose and intent; the eventual intercession of Chinese naval authorities suggests something more ambiguous or divisive within the Chinese Government. Or, perhaps, rather than suggesting that the rules of the road are unsettled, the incidents reflect a clash in regimes in the intelligence context—the Law of the Sea principles entailing freedom of navigation on the one hand and national claims of sovereignty that extend beyond the Law of the Sea on the other. One might argue that it was intelligence gathering that gave rise to the incidents in the first place. Alternatively, one might respond that it was intelligence about actual intent that ultimately defused the incidents. Regardless, stability in the region is likely better served by an increase rather than a decrease in each side’s knowledge with respect to the other’s capacities, locations, and intent. An understanding of patterns and practices decreases the risk that later actions will be misperceived as threats to Taiwan or the Spratley Islands. In the alternative, such an understanding might better warn regional actors of an impending threat. Here, Michael’s “incident analysis” methodology would find apt use, given that it identifies the conditional factors useful

56 57

58 59 60

Reisman, supra note 53. Current and Projected National Security Threats: Hearing Before the S. Select Comm. on Intelligence, 110th Cong. 7 (2007) (statement of Robert S. Mueller, III, Director, Federal Bureau of Investigation), available at http://intelligence.senate.gov/070111/mueller.pdf; Kappes Declaration, supra note 45. Thom Shanker & Mark Mazzetti, Tussle at Sea Has U.S. and China Quarreling, N.Y. Times, Mar. 11, 2009, at A10. Tini Tran, China Rejects US Criticism over Military Strength, Associated Press, May 6, 2009. Ariana Eunjung Cha, China Derides Account by U.S. of Ship Dispute, Wash. Post, Mar. 11, 2009, at A10.

7 James E. Baker, Prelude to Decision

to informing judgments about the purposes and lawfulness of U.S. and Chinese actions and the distinctions between operational codes and aspirational objectives.61 Of course, the intelligence “rules of the road,” to the extent they exist at all between states, do not exist with respect to non-state actors engaged in terrorism. This asymmetry, though less evident, tracks the more apparent asymmetry in application of the law of armed conflict. But, to a certain extent, this is not just a one-way street. The rules for state actors are evolving, as well, as reflected in ongoing debates over the means and methods utilized to capture, kill, interrogate, detain, and try non-state actors. The beginning of the Cold War prompted the necessity of finding mechanisms to provide stability between nuclear adversaries. Arguably, intelligence, arms control, hotlines, and doctrines of assured destruction provided a modicum of stability; indeed, these tools may have provided today’s world with even greater stability in comparative retrospect. The twenty-first century has started with an equally compelling imperative to find mechanisms to contain and stabilize the threat posed by non-state actors obtaining WMD and by state actors failing to control the weapons they already have or seek to acquire. But, while doctrine and diplomacy played an important role in the Cold War, in today’s context, intelligence may be the only tool at hand. It has taken on additional importance given the difficulty in identifying hostile intent and locating WMD capacity. As President Obama said in April 2009: In a strange turn of history, the threat of global nuclear war has gone down, but the risk of a nuclear attack has gone up. More nations have acquired these weapons. Testing has continued. Black market trade in nuclear secrets and nuclear materials abound. The technology to build a bomb has spread. Terrorists are determined to buy, build or steal one. … [W]e must ensure that terrorists never acquire a nuclear weapon. This is the most immediate and extreme threat to global security. One terrorist with one nuclear weapon could unleash massive destruction. Al Qaeda has said it seeks a bomb and that it would have no problem with using it. And we know that there is unsecured nuclear material across the globe. To protect our people, we must act with a sense of purpose without delay.62

Thus, today, the intelligence focus is on a different form of stability—the prevention of surprise and, in particular, the prevention of a WMD surprise, either in the form of a terrorist attack, the transfer of weapons, or the use of weapons by states like North Korea and Iran.

61

62

For more information about Reisman’s “incident analysis,” see International Incidents: The Law That Counts in World Politics (W. Michael Reisman & Andrew R. Willard eds., 1988). Barack Obama, President of the United States, Remarks at Hradcany Square in Prague, Czech Republic (Apr. 5, 2009), transcript available at http://www.whitehouse.gov/the_ press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Delivered/.

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C. Surprise 88

Intelligence is intended to prevent surprise—not only surprise attack, but also strategic surprise, such as that created by the 1961 Sino-Soviet split and Pakistan’s 1998 nuclear test. As Michael noted, “[t]he task of intelligence services that protect incipient world order will be to guard against surprise.”63 1. Asymmetric Surprise At one point, the element of surprise was defined almost exclusively in terms of state militaries. Now, of course, the function is equally applicable to non-state actors, and increasingly, physical phenomena such as climate change. An asymmetric conflict with non-state terrorists requires resorting to all the instruments of national power. Counter-terrorism is not exclusively a law enforcement challenge or a military function—it is both. It is also a diplomatic, legal, and financial challenge. However, as Michael would be the first to recognize, the choice of which responsive instrument to use must be determined by contextual analysis, and that, in turn, depends on intelligence. Intelligence remains the central instrument, “permeat[ing] every facet of decision.”64 Where the military instrument is concerned, anticipatory self-defense places special burdens on intelligence. In my view, acceptance of the legal framework in international law depends less on the nomenclature used to assert the claim than on the facts underlying the claim, or at least the facts as revealed by states engaging in asserted acts of defense. I think Michael would agree. He has noted that “[t]he nub of the problem of the doctrine of anticipatory self-defense is whether there is consensus, in each instance, on the circumstances and contingencies in which preemptive action may be taken.”65 And in the context of the current conflict, he has explained: “Given the nature of the modus operandi of Al Qaeda and its cognate organizations, merely stating that international law’s right of self-defense applies to them may amount to a tacit acknowledgment that sometimes self-defense may be lawfully used anticipatorily and even preemptively.”66 At least since 9/11, the United States and the international community have debated the threshold for resorting to force against non-state actors intent on obtaining and using WMD. Whether framed as law or policy, as anticipatory self-defense or preemption, the questions are rooted in the concepts of imminence and necessity. How imminent must a threat of attack be to give rise to a right of anticipatory selfdefense? What parameters define necessity in a post-nuclear context? These are core intelligence as well as legal questions. Consider the March 2009 comment of Secretary of Defense Robert Gates, who served much of his career as a CIA analyst before finishing as DCI: 63 64 65 66

McDougal, Lasswell & Reisman, supra note 8, at 351. Id. at 288. Reisman, supra note 5, at 16-17. W. Michael Reisman & Andrea Armstrong, The Past and Future of the Claim of Preemptive Self-Defense, 100 Am. J. Int’l L. 525, 538 (2006).

7 James E. Baker, Prelude to Decision

I think one of the biggest lessons learned in this is that if you are going to contemplate preempting an attack, you had better be very, very confident of the intelligence that you have. And I think that the lessons learned with the failure to find the weapons of mass destruction and some of the other things that happened will make any future president very, very cautious about launching that kind of conflict or relying on intelligence. He’s going to ask a lot of very hard questions, and I think that hurdle is much higher today than it was six or seven years ago. And my personal view is that any future president, this current president or any future president, while they have to retain, if they have very solid evidence that we are about to be attacked that we be in a position to take action to prevent that. I think, though, that the area first of all will be are we going to be attacked here at home as one of the thresholds, and then the quality of the intelligence would be another.67

Although Secretary Gates was referring to President Obama, he might as well have been describing President Clinton’s controversial decision in 1998 to attack the AlShifa pharmaceutical plant in Sudan.68 Presented with intelligence information that the plant was connected to chemical weapons and to Osama Bin Laden, the President chose to act. But the predicate was ultimately based on the DCI’s intelligence judgment, not necessarily demonstrable facts, such as those that might inform a court of law. Faced with a realistic prospect of a catastrophic attack, presidents will act to protect the United States, and they will do so in an anticipatory manner. As President Obama has said, “[a]s President, my greatest responsibility is to protect the American people.”69 Policymakers must define their red lines for risk. However, it is intelligence that will determine whether the red line has been reached. In all likelihood, this will not come in the form of an armed attack or even a demonstrable fact, but in the form 67

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Tavis Smiley (PBS television broadcast Mar. 11, 2009), transcript available at http://www. pbs.org/kcet/tavissmiley/archive/200903/20090311_gates.html (interview with Secretary of Defense Robert Gates). Here I think Michael reached the wrong conclusion in describing the Al-Shifa strike as “essentially retaliative.” See Reisman, supra note 5, at 19. To the contrary, it was presented both internally and externally as a matter of anticipatory defense, in the context of a developing, but inchoate, threat of chemical attack. See Barton Gellman & Dana Priest, U.S. Strikes Terrorist-Linked Sites In Afghanistan, Factory in Sudan, Wash. Post, Aug. 21, 1998, at A01 (“The United States last night notified the U.N. Security Council by letter that it justified the strikes under Article 51 of the U.N. charter, which permits states to act in self-defense if they fear imminent attack.”); Samuel R. Berger, Why the U.S. Bombed, Wash. Times, Oct. 16, 1998, at A21 (explaining the reasons for the Al-Shifa strike: “First, we knew that the Usama bin Ladin terrorist organization was bent on large-scale violence against Americans. … Second, we had physical evidence indicating that Al Shifa was the site of chemical weapons activity. … Third, we had information linking bin Ladin to the Sudanese regime and the Al Shifa plant.”). Barack Obama, President of the United States, Remarks on a New Strategy for Afghanistan and Pakistan (Mar. 27, 2009), available at http://www.whitehouse.gov/the_press_ office/Remarks-by-the-President-on-a-New-Strategy-for-Afghanistan-and-Pakistan/.

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of a judgment. The question, then, is not whether presidents will act, but whether they will act based on dependable information that represents the best information available to the U.S. Government at the moment of decision. If the intelligence case is not made and validated, the United States may find itself isolated in a century that requires allies. It may also find that the legal regime shifts in a manner that raises both the threshold for preventing surprise and the intelligence threshold for identifying surprise. 2. Strategic Prediction If one critical role of intelligence is to prevent tactical surprise through the identification of immediate threats, a second method to prevent surprise is to accurately predict long-range trends or strategic threats and address them before they come to fruition. Prediction is also the role of the scholar. [I]t is not sufficient for the scholar simply to identify and assemble trends in decision. Trends must then be tested against the requirements of world public order as a means of assessing their adequacy. Insofar as they are found wanting, scholars should take the responsibility of proposing alternative arrangements so that a better approximation of political and legal goals can be achieved in the future.70

Consider that Michael was writing about non-state actors and terrorism in the 1970s.71 And, in 1995, when the executive branch was having trouble attracting congressional support to amend the law to better counter terrorism, Michael was writing about the looming WMD threat from non-state actors.72 Terrorism appears to be evolving into the preferred form of covert action of weaker states and, to an extent that cannot yet be gauged, of groups that are not affiliated with any state. … One way, if not the only way, to prevent terrorist incidents is by covert counter-action. Are we witnessing the birth of a holy war against irregular terrorist forces about the planet? If so, it is likely to be a “dirty” war unless the normative restraints that are appropriate are carefully clarified and applied.73

But if strategic prediction is one of Michael’s strengths as a scholar, it is not always viewed as a strength of the U.S. intelligence community. As Secretary Gates said in 2009: Intelligence—and this has always been a difficult message to convey to intelligence professionals—do[es] a so-so job of predicting the future. [Intelligence professionals] really do a very good job of telling you what’s going on right now around the world, but forecasting— 70 71 72 73

Reisman, supra note 5, at 6. See, e.g., W. Michael Reisman, Private Armies in a Global War System: Prologue to Decision, 14 Va. J. Int’l L. 1 (1973), reprinted in McDougal & Reisman, supra note 8, at 142. See, e.g., Reisman, supra note 6, at 423. Id. at 424.

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the truth of the matter is they’re not a lot better than anybody else, and I think policymakers need to understand that.74

The reality is that the intelligence community gets some projections right and some wrong. However, the issue is not just one of forecasting. It is a question of granularity. Do projections clearly distinguish between fact, judgment, and estimate, and do projections do so in a manner that informs decision-making? A specific estimate as to how quickly the Arctic is melting tells policymakers how quickly they may need to resolve policy and legal questions surrounding the Northwest Passage. A general statement that global warming will lead to instability does not resolve those questions. Similarly, a projection that Al Qaeda intends to attack the continental United States is very different than a projection that they will use a particular means to do so. On a tactical level, it is evident that the intelligence community did not forecast the specific nature of the 9/11 attacks, but they certainly understood the threat from Al Qaeda and like-minded groups. And they understood that the threat was tied to WMD. The DCI, the intelligence community, and the NSC staff got the message in the 1990s. The country did not. One area where the intelligence community has gotten the long-term forecast right, and well before the policy community, is climate change. Of course, the scientists got there first. The military followed (or at least segments of the military that made the critical linkage between climate change and regional stability). This link has transformed climate change from an environmental issue into a national security issue, with focus on the direct and indirect security consequences measured in disease, migration, water shortages, and land loss. As former Commander of Central Command General Anthony Zinni said in 2007: We will pay for this one way or another. We will pay to reduce greenhouse gas emissions today, and we’ll have to take an economic hit of some kind. Or we will pay the price later in military terms. And that will involve human lives. There will be a human toll.75

The intelligence community was not far behind in identifying the security implications of climate change. This is reflected bureaucratically. Whereas environmental analysis at the CIA was curtailed after 9/11, a Director for Climate Change and State Stability now sits on the National Intelligence Council. And, it is reflected in analytic product, including the unclassified 2025 Estimate, which raises the prospect that the scarcity of food and fresh water could trigger mass migration and political tension

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All Things Considered (NPR radio broadcast Mar. 10, 2009), transcript available at http:// www.npr.org/templates/transcript/transcript.php?storyId=101669758 (interview with Secretary of Defense Robert Gates). US Generals Urge Climate Action, BBC, Apr. 15, 2007, available at http://news.bbc. co.uk/2/hi/americas/6557803.stm.

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or conflict by 2025.76 And what of Michael Reisman on this topic? In 1973, he called on state actors and international organizations to adopt a more inclusive intelligence process to predict and address the environmental challenges to come.77 III. Transnational Law in Brief Sketch If the law of anticipatory self-defense is evolving, most of the law on intelligence collection has remained relatively static. However, as an exception to this overall stability, the law applicable to covert and liaison activities has evolved in significant manner. In 1973, Michael identified the inherent tension between the concept of territorial integrity, highlighted in Article 2(4) of the U.N. Charter, and the intelligence function.78 Within this framework, Michael noted that actual practice reflected a surprising measure of tacit acceptance, at least for certain passive intelligence functions. This is how he summarized international law at the time: The international law of intelligence gathering within the territorial confines of a nationstate remains a controversial subject. The more traditional doctrinal view has been that intelligence gathering within the territorial confines of other states constitutes an unlawful intervention, under both customary and conventional international law. In terms of the actual volume of this activity, however, the number of formal protests which have been lodged have been relatively insignificant. This latter practice suggests a somewhat ambivalent perspective upon the part of national elites in regard to such activities and may indicate a deep but reluctant admission of the lawfulness of such intelligence gathering, when conducted within customary normative limits.79

Michael then identified three trends. First, “[d]espite the fact that every nation-state prosecutes espionage, no systematic attempt has been made to assimilate the activity to delicta juris gentium” (crimes against the law of nations).80 Second, “the line between lawful intelligence gathering and espionage is thin, and may, in fact, ultimately be irreparably perforated by technological innovations.”81 Third, “[t]he greater part of intelligence gathering consists of simply monitoring and collating public statements made within a foreign state, in national and regional newspapers, trade, professional and technical journals, government department announcements, and so on.”82 He 76 77 78

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National Intelligence Council, Global Trends 2025 50-54 (2008), available at http://www.dni.gov/nic/PDF_2025/2025_Global_Trends_Final_Report.pdf. McDougal, Lasswell & Reisman, supra note 8, at 348. Id. at 310-11; see also U.N. Charter art. 2, para. 4 (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”). McDougal, Lasswell & Reisman, supra note 8, at 310-11 (footnote omitted). Id. at 311 (footnote omitted). Id. Id. (footnote omitted).

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then concluded, “[t]he gathering of intelligence within the territorial confines of another state is not, in and of itself, contrary to international law unless it contravenes policies of the world constitutive process affording support to protected features of internal public order.”83 On reflection, international law remains surprisingly tolerant of certain intelligence-gathering activities. Perhaps this reflects an understanding that efforts to proscribe intelligence-gathering would be stillborn and would, in net, potentially bear as much cost as gain. In some cases, this tolerance is recognized affirmatively. The law of armed conflict, for example, explicitly and tacitly recognizes espionage as a lawful extension of the use of force, albeit with grave consequences for those who are caught engaging in such practice out of uniform. Article 24 of the Hague Convention (1907) states that “the employment of measures necessary for obtaining information about the enemy and the country are considered permissible.”84 Further, in the words of the 1956 Army Field Manual, “[r]esort to that practice involves no offense against international law.”85 In other circumstances, acceptance of espionage activities may be tacit in form. One might classify satellite surveillance, which is met with efforts to cover and conceal as opposed to international legal objections, as an example of such tacit acceptance. In addition to providing protection for diplomats and their premises, the Vienna Conventions on Consular and Diplomatic Relations provide “cover” for a nation’s officials who, while attached to an embassy, conduct activities of which the purpose is to collect intelligence.86 Despite recognition of this trend, there has been no movement to otherwise exempt such activities from the reach of diplomatic immunity. Indeed, if one defines intelligence as “problem identifying and problem solving information,” one imagines and hopes that most officials at U.S. and foreign embassies are engaged in the collection of information. That is what diplomats do. That is also what military attachés do, not just for the purpose of gathering information, but for the purpose of better understanding the intent of the host state and its military. Through such understanding, incipient crises of a military nature might be defused rather than escalated needlessly. As stated by Admiral Timothy Keating, while serving as Pacific Commander: [I]ntention is an important part of military to military understanding. And if there is insufficient expression of intention, we as military officers have no choice but to assume a range of options. That can create misunderstanding, which can lead to confusion, which can lead to crisis, which can lead to conflict. And we do not want that. So we want to work back83 84 85

86

Id. Convention Respecting the Laws and Customs of War on Land art. 24, Oct. 18, 1907, 36 Stat. 2277. U.S. Department of the Army, Field Manual 27-10: The Law of Land Warfare § 77 (1956), available at http://www.loc.gov/rr/frd/Military_Law/pdf/law_warfare-1956. pdf. See Vienna Convention on Consular Relations, supra note 55, ch. II; Vienna Convention on Diplomatic Relations, supra note 55, arts. 22-31.

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wards so as to minimize misunderstanding, and in our view the best way to do that is by a better expression and understanding of intention.87

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However, if one looks at transnational law generally,88 tolerance for the intelligence function is surely conditional. For example, whatever may be said of the intelligence function in international law, certain intelligence activities are prohibited as a matter of foreign and U.S. domestic law. In 1973, Michael observed that “[i]ntelligence gathering within a nation-state by aliens is characterized nationally as the crime of espionage and is subject to national criminal prescription and application.”89 There has been no change there. Those who violate local law while conducting intelligence activities and who are not shielded by norms of immunity, or do not flee first, are likely to be prosecuted and face severe penalties.90 This prosecution may be done using statutes directed at “intelligence gathering,” such as espionage laws, or with law directed at the specific conduct rather than the purpose of the conduct, such as through a kidnapping or visa fraud charge. In his scholarship, Michael has identified conditional factors relevant for determining the lawfulness of intelligence activity. These factors are applicable to the treatment of intelligence activities in international law. First, “[a]ctivities which seriously compromise the dignity of individual citizens, their privacy or personal security, or involve the destruction of property are, of course, unlawful no matter which decision function they attend.”91 Clearly, ongoing debates about rendition implicate this conditioning factor. So too, the types of conduct that are viewed as a serious compromise

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Press Roundtable with Admiral Timothy J. Keating, U.S. Navy Commander, U.S. Pacific Command, in Hong Kong (Jan. 17, 2008), transcript available at http://www.pacom.mil/ speeches/sst2008/080117-keating-china.shtml. See James E. Baker, What’s International Law Got to Do with It? Transnational Law and the Intelligence Mission, 28 Mich. J. Int’l L. 639 (2007). The American Society of International Law provides this definition of public international law: Public international law [is] the law which regulates the intercourse of nations … the building blocks of international law, broadly understood, include a wide range of activities and regimes beyond treaties, such as domestic statutes with extraterritorial application, the transnational coordination of regulatory agencies, and the treatment of aliens by foreign governments. In sum, today’s lawyer is increasingly involved in what some commentators have called transnational law, a term coined by Phillip Jessup “to include all law which regulates actions or events that transcend national frontiers.” At issue is … the web of legal regimes between and within countries that is the result of globalization.

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Id. at 650 (quoting David Bederman et al., International Law: A Handbook for Judges 2-3 (Am. Soc’y of Int’l Law ed., 2003)). McDougal, Lasswell & Reisman, supra note 8, at 311. Tom Perry, Lebanon Sees More Arrests in Israeli Spying Probe, Reuters, June 2, 2009, available at http://www.reuters.com/article/newsOne/idUSTRE5513EV20090602; Hussein Dakroub, Lebanon Charges 9 More for Working with Israel, Associated Press Worldstream, June 2, 2009. McDougal, Lasswell & Reisman, supra note 8, at 311.

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of dignity, or to quote United States v. Toscanino, as “conduct that shocks the conscience,” have evolved since 1973.92 This first conditional factor is reflected in the relative variation in elite and public response to the practice of state-sponsored abduction, which some classify as an intelligence function. The 1961 kidnapping of Adolf Eichmann in Argentina by Israeli agents was treated as a violation of international law, but also as a dispute between states. Argentina accepted Israel’s apology and Eichmann was eventually convicted and hanged.93 The 1990 abduction in Mexico of Humberto Alvarez-Machain initiated a prolonged U.S.-Mexico dispute and resulted in a downturn in relations. The situation also prompted extensive judicial scrutiny into the manner in which AlvarezMachain was brought before an American court.94 Nonetheless, as a matter of law, the Ker-Frisbie doctrine95 was affirmed, and Alvarez-Machain was tried in the United States.96 As a matter of practice, the Department of Justice issued guidelines to the U.S. Attorneys that extraordinary renditions, including the kidnapping of fugitives overseas, required the approval of headquarters; however, note that the practice was not prohibited outright, and was described using the term “kidnapping.”97 The 2003 abduction of Osama Moustafa Hassan Nasr in Milan, with the apparent complicity of Italian military intelligence authorities, and the 2002 seizure and rendition to a third country of Binyam Mohamed, both received a different reaction when revealed. In these latter two cases, the apparent public outrage at the manner in which the men were seized and detained was ultimately matched by host or parent government protest. Moreover, in both Italy and the United Kingdom, courts have engaged in rigorous investigations regarding the handling of these two men.98 These 92

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United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974) (quoting Rochin v. California, 342 U.S. 165 (1952)); see also Reisman & Baker, supra note 19, at 129-30 (discussing the “very high threshold” for the exception to the Ker-Frisbie rule established in Toscanino— the threshold was not met in that case or any subsequent case). Reisman & Baker, supra note 17, at 50-52. Id. at 130; United States v. Alvarez-Machain, 504 U.S. 655 (1992); see also Sosa v. AlvarezMachain, 542 U.S. 692 (2004) (discussing the norms of customary international law relevant to the abduction). See Reisman & Baker, supra note 17, at 193 n.78 (“The Ker-Frisbie doctrine stands for the proposition that ‘forcible abduction neither offends due process nor requires dismissal of an indictment.’”) (quoting United States v. Yunis, 681 F. Supp. 909, 918 (D.D.C. 1988)). See Alvarez-Machain, 504 U.S. at 669-70 (“We conclude, however, that respondent’s abduction was not in violation of the Extradition Treaty between the United States and Mexico, and therefore the rule of Ker v. Illinois is fully applicable to this case. The fact of respondent’s forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States.”). U.S. Department of Justice, United States Attorneys’ Manual, § 9-15.000 (1997). Elisabetta Povoledo, Italy Judge Disqualifies Classified Evidence in Trial on Rendition, N.Y. Times, May 21, 2009, at A9; Duncan Gardham, Binyam Mohamed “Torture” Case Goes to High Court, Daily Telegraph (London), May 8, 2009.

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observations are all the more telling in that the host governments themselves were slow to protest at the time, and, in both cases, the host or parent government was not interested in disclosing intelligence methodologies. Moreover, both men appear to have had genuine links to extremist groups. The second conditional fact that Michael identifies is that passive conduct is more likely to be tacitly accepted as lawful, or at least tolerated, than active conduct. This tolerance also appears conditioned on the recognition that intelligence can serve the shared values of stability and public order in addition to unilateral state security. Nonetheless, passive collection activities that implicate privacy interests may receive heightened scrutiny, even within the context of identifying potential terrorists after 9/11. This is illustrated by the 2006 European reaction to use of the SWIFT banking mechanism to identify the potential flow of terrorist assets by data mining patterns of banking transactions transferred through the SWIFT mechanism.99 Although passive in form, European Union officials insisted on turn-key mechanisms to ensure data was not accessed for unintended purposes or without adequate predicate and accountability. Other conditional factors and trends are apparent or emerging. First, applicable foreign law is often, and it seems increasingly, based on international law, codified as a matter of treaty obligation in domestic law. For the United States, this is a recent trend.100 In intelligence practice, this codification is evident in the area of ordinary and extraordinary rendition. The focus is on application of the Convention Against Torture, as implemented through domestic law, as well as international human rights norms, such as those reflected in the International Covenant on Civil and Political Rights, in the principle of non-refoulement, and in regional instruments like the European Convention on Human Rights. In context, of course, a number of additional international legal norms may be implicated depending on the who, when, where, and how of a rendition. Moreover, whatever the sending and receiving state may conclude, other states may take a different view of international law or their obligations under the law. Further, as is illustrated with respect to the alleged events in Milan, different parties within the same country may take a different view of the law. In Milan, Italian prosecutors charged Nicolò Pollari, the former Director of Military Intelligence, for his alleged complicity in the abduction of Nasr, and not just named and unnamed foreign actors.101 Some 99

See, e.g., Resolution on the Interception of Bank Transfer Data from the SWIFT System by the U.S. Secret Services, Eur. Parl. Doc. P6_TA(2006)0317 (2006) (“The European Parliament … [s]trongly disapproves of any secret operations on EU territory that affect the privacy of EU citizens; is deeply concerned that such operations should be taking place without the citizens of Europe and their parliamentary representation having been informed; urges the USA and its intelligence and security services to act in a spirit of good cooperation and notify their allies of any security operations they intend to carry out on EU territory …” ). 100 See, e.g., 18 U.S.C. § 2441 (2006) (war crimes); 18 U.S.C. § 1091 (2006) (genocide); 18 U.S.C. § 2340A (2006) (torture). 101 Povoledo, supra note 98, at A9.

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states may also treat these norms as universal in scope and jurisdiction, thus implicating their prescriptive and enforcement functions even if these states are not directly implicated in the activity in question.102 Finally, operative international law may also be found in the form of bilateral extradition agreements, which may permit or prohibit certain activities,103 or bilateral agreements between states on the subject of rendition itself.104 The Binyam Mohamed, Maher Arar, Khalid El Masri, and Hassan Abu-Jihaad rendition cases also suggest, but do not confirm, the advent of a new conditional trend— increased judicial scrutiny in democratic states of intelligence conduct, even where the government indicates such conduct is directed at the core security functions of the state.105 I say “suggest” because we may be seeing no more than a reflection of Michael’s earlier observation that intelligence activities that impinge on individual rights may be unlawful, or at the very least, may receive heightened scrutiny. After all, these cases appear to involve credible allegations of torture. Nevertheless, there are signals in the other direction. For example, the U.S. Supreme Court has enunciated a standard of deference to executive branch decisions where persons subject to habeas review allege that their transfer to foreign custody will result in torture.106 For 102 Relying on international law and the principle of universal jurisdiction, a Spanish judge in 1998 charged Chilean dictator General Augusto Pinochet with genocide, terrorism, torture, and causing forced “disappearances.” Pinochet was arrested in London and the British House of Lords denied him immunity from the Spanish charges. However, Pinochet was never transferred to Spain, and he eventually returned to Chile due to physical and mental ailments that made him unfit to stand trial. He died there in 2006. See The Pinochet Papers (Reed Brody & Michael Ratner eds., 2000); Richard J. Wilson, Prosecuting Pinochet in Spain, 6 Hum. Rts. Brief 3, 3-4 (1999). Belgium also had a law that instituted universal jurisdiction, which led to cases being filed regarding human rights abuses in Rwanda, Guatemala, Chad, and elsewhere. However, the law was modified so that “Belgian courts will only have jurisdiction over international crimes if the accused is Belgian or has his primary residence in Belgium; if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case.” See Belgium: Universal Jurisdiction Law Repealed, Hum. Rts. Watch, Apr. 1, 2003, http://www.hrw.org/fr/news/2003/08/01/ belgium-universal-jurisdiction-law-repealed. 103 The United States has entered extradition agreements with over one hundred countries, as well as one multilateral agreement, the multilateral Convention on Extradition, Dec. 26, 1933, 49 Stat. 3111. See also 18 U.S.C. § 3181 (2004) (including history, ancillary laws and directives). The agreements usually confine extradition to certain offenses, excluding offenses that are political or military in nature. 104 See, e.g., Memorandum of Understanding Regulating the Provision of Undertakings in Respect to Specified Persons Prior to Deportation, U.K.-Jordan, Aug. 10, 2005, 44 I.L.M. 1511. 105 See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009); Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008); El Masri v. United States, 479 F.3d 296 (4th Cir. 2007); United States v. Abu-Jihaad, 600 F. Supp. 2d 362 (D. Conn. 2009). 106 See Munaf v. Geren, 128 S. Ct. 2207, 2226 (2008) (showing great deference to the Executive regarding decisions to transfer U.S. citizens to other countries, although noting

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sure, the holding in Munaf v. Geren is limited to the context presented. Munaf was apprehended in Iraq by U.S. forces and was pending transfer to Iraqi authorities for criminal adjudication, not intelligence interrogation. But the Court’s language is not so limited: Such allegations are of course a matter of concern, but in the present context that concern is to be addressed by the political branches, not the judiciary. … The Judiciary is not suited to second-guess such determinations—determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area. … In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is.107

In recent practice, there is also recognition that international law and mechanisms can serve as affirmative tools to promote the regional and global interest in stability and the prevention of surprise. Intelligence-sharing mechanisms, such as the Proliferation Security Initiative (PSI) and the International Maritime Organization (IMO) amendments to the Safety of Life at Sea (SOLAS) Convention for port security and shipboard security, illustrate this trend. In the area of piracy, intelligence sharing has occurred on a bilateral (U.S.-Indonesia), regional (Straits of Malacca), and multilateral basis (Horn of Africa), a trend that appears to be increasing with the continued proliferation of piracy off the Horn of Africa.108 This practice suggests at least two conditioning factors—inclusiveness and shared goals that may shape reaction to the intelligence instrument, or at least a reciprocal understanding that the net gain outweighs the net risk. In contrast, activities that are manifestly intended to affect events overseas in order to advance unilateral interests may not receive such legal deference. In U.S. law, there is a name for such activities—covert action. In the abstract, what U.S. law classifies as “covert action” is among the most controversial of intelligence tools.109 This is because it is an affirmative tool, intended to that this was not an “extreme case in which the Executive has determined that a [U.S.] detainee is likely to be tortured but decides to transfer him anyway”). But see id. at 2228 (Souter, J., concurring) (“I would add that nothing in today’s opinion should be read as foreclosing relief for a citizen of the United States who resists transfer, say, from the American military to a foreign government for prosecution in a case of that sort, and I would extend the caveat to a case in which the probability of torture is well documented, even if the Executive fails to acknowledge it.”). 107 Id. at 2225-26 (internal citations omitted). 108 Vago Muradian, Pirate Plan Goes Global, Navy Times, Dec. 8, 2008, at 8; Richard Halloran, Pirates Off, Perchance?, Wash. Times, Nov. 23, 2008, at B01. 109 In context, liaison can be equally controversial. For example, the CIA meeting with Sudan’s intelligence chief in spite of the humanitarian situation in Darfur sparked controversy among Bush administration officials, members of Congress, and human rights organizations. Shane, supra note 44, at A7. The liaison function can also spark international controversy, as occurred due to the perception, and perhaps reality, that Italian and U.S. officials worked together in the alleged abduction of Nasr. Povoledo, supra note 98, at A9.

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“influence political, economic, or military conditions abroad.”110 For starters, covert action is generally unilateral. It also implicates the conditional factors that Michael identified as relevant to judgments about international law and intelligence. Moreover, as a clandestine instrument of state power, its connection to more inclusive goals is not always apparent, if such connection exists at all, when covert activities are revealed. Specific tools may be particularly problematic as a matter of policy, law, and national security values. For example, in Regulating Covert Action, Michael and I concluded that assassination was such a tool.111 In U.S. law, “assassination” is prohibited by Executive Order: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”112 President Ford first issued this prohibition in 1976, in part to head off legislation that might otherwise have proscribed assassination in criminal law.113 The prohibition was reaffirmed in Executive Orders 12036 (Carter), 12333 (Reagan), and 13470 (George W. Bush). However, the Orders do not define the term “assassination.” Thus, some caution is in order. Because the term is not defined, and the prohibition is contained in an Executive Order, the president may interpret or suspend the Order, and do so in a secret manner. Of course, specific conduct that may fall outside the Executive Order’s reach may still violate U.S. criminal statutes proscribing distinct conduct. Moreover, putting aside constitutional arguments that might be made in extremis, in U.S. law “[a] finding may not authorize any action that would violate the Constitution or any statute of the United States.”114 Thus, full consideration of the prohibition on assassination in U.S. law must not only consider U.S. criminal law generally; it must also consider how the President and Attorney General have (and currently do) define and interpret the prohibition. Full consideration must also include analysis of international law. International law will inform international reaction, and for reasons stated above, shape the legal risks and policy implications of conduct. It will also delimit differences between lawful military objectives and targeted killing that is more appropriately characterized as state-sanctioned extra-judicial killing. In 1992, Michael and I defined assassination as targeted killing for political purposes, which would include foreign policy purposes.115 We identified a surprising conditional tolerance for political killing.116 This tolerance was based, in part, on the targets in question and, in part, on definitional variants that arguably brought some of the more controversial targets into the realm of military targeting.

110 111 112 113 114 115 116

National Security Act of 1947 § 503(e), 50 U.S.C. § 413b(e) (2006). See Baker & Reisman, supra note 17, at 69-71. Exec. Order No. 12,333, 46 Fed. Reg. 59,941, 59,952 (Dec. 4, 1981). See Exec. Order No. 11,905, 31 Fed. Reg. 7703 (Feb. 19, 1976). National Security Act of 1947 § 503(a)(5), 50 U.S.C. § 413b(a)(5) (2006). See Reisman & Baker, supra note 17, at 70. See id. at 69-70.

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[I]t is clear that there is a certain conditional tolerance for this at the elite level, a trend that prevents us from saying that it is prohibited as a matter of law. Because of difficulties of definition, legal analysis of the lawfulness of such issues is best resolved with a contextual reading of each case that relies on both political context and reference to the traditional doctrines governing the use of force: proportionality, necessity, and discrimination concerning the target.117

We also noted that, in addition to its general principles involving discrimination, necessity, proportionality, and military objective, the law of armed conflict includes a textual and customary prohibition on assassination, generally defined as a treacherous killing.118 However, the distinctions between unlawful treachery and perfidy on the one hand, and lawful ruses on the other, are not always clear. It is clear that false flags of surrender are perfidious, while decoy radio messages and movements are lawful decoys. However, the law appears less settled on just when an opponent’s forces are permitted to wear an opponent’s military uniform, if at all, and for what purposes. Neither, for that matter, are the distinctions between military targets and political targets always clear. In U.S. practice and law, a distinction has been drawn between “political” targets and targets lawfully defined as military in nature, even if they might also be described as political figures. Such military targets include Saddam Hussein, Omar Qaddafi, and Osama Bin Laden, all of whom were targeted in the course of U.S. military operations, and in the case of Bin Laden, military and intelligence operations.119 But practitioners should take care not to engage in too much sophistry. As the Israeli Supreme Court has eloquently described, the practice of extra-judicial killing can spiral and cascade out of control.120 It can debase the moral authority of the perpetrator. And, as noted above, U.S. views on circumstance and law may not be shared in other jurisdictional fora. Democracies should also remember that international law is based, in part, on the principle of reciprocity. For these reasons, Michael and I concluded that, as a matter of legal policy, “assassination should be viewed as an unlawful covert action and should not be given any color of law.”121 Some recent incidents do not alter these views. The assassination of Prime Minister Rafik Hariri of Lebanon in 2005, believed to have been undertaken by foreign intelligence agents or proxies, was met with widespread international condemnation,

117 Id. at 70-71 (footnote omitted). 118 See id. at 70. 119 See Baker, supra note 45, at 155; Reisman & Baker, supra note 17, at 70; Reisman, supra note 6, at 423. 120 See HCJ 769/02 Public Committee Against Torture in Israel v. Israel [2006] IsrSC 57(6) 285. 121 Reisman & Baker, supra note 17, at 70.

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including by the U.N. Security Council.122 International efforts were undertaken not just to condemn, but to identify and prosecute the perpetrators.123 If possible, the 2006 murder of former Federal Security Service (FSB) officer Alexander Litvinenko in London by way of polonium poison was met with even wider condemnation. Here, the means used appears to have provoked the reaction as much as the target. Litvinenko was not a head of state or a politician, but he was a “political” figure. Not only did the murder freeze relations between the United Kingdom and Russia, with a corresponding recall of ambassadors, but up to 3,000 civilian airline passengers potentially were exposed to the debilitating poison as it was transported on various flights from Russia to London.124 In the criminal context, the incident amounted to murder. In military terms, the assassination was treacherous in form, disproportionate in effect, indiscriminate in application, and intended to maximize the suffering of the victim. Michael has also written on the subject of regime change. His article, Why Regime Change Is (Almost Always) a Bad Idea, states its conclusion in the title.125 Here, Michael identifies the antinomy caused by the two competing and contradictory norms 122 See International Independent Investigation Commission, Report of the International Independent Investigation Commission, ¶ 216, U.N. Doc. S/2005/662 (Oct. 19, 2005) (“[T] here is converging evidence pointing at both Lebanese and Syrian involvement in this terrorist act. It is a well-known fact that Syrian military intelligence had a pervasive presence in Lebanon at the least until the withdrawal of the Syrian forces pursuant to resolution 1559 (2004).”); Hussein Dakroub, Hezbollah Denies Report About Hariri Assassination, Associated Press, May 24, 2009 (“Lebanon’s militant Hezbollah group denied a report by a German magazine linking it to the 2005 assassination of former Lebanese Prime Minister Rafik Hariri … .”). 123 The Security Council ordered an investigation of the Hariri investigation in 2005 and has extended the investigation’s mandate several times. See S.C. Res. 1852, U.N. Doc. S/ RES/1852 (Dec. 17, 2008); S.C. Res. 1595, U.N. Doc. S/RES/1595 (Apr. 7, 2005). The Security Council also established the Special Tribunal for Lebanon to prosecute the persons responsible for the Hariri assassination. See S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007); S.C. Res. 1664, U.N. Doc. S/RES/1664 (Mar. 29, 2006). In April 2009, the Tribunal released four Lebanese generals detained in connection with the assassination for lack of sufficient evidence. Press Release, Special Tribunal For Lebanon, Prosecutor Bellemare Recommendation Regarding Four Generals (Apr. 29, 2009). According to at least one source, the Tribunal has now concluded that Hezbollah was involved in the assassination. Erich Follath, New Evidence Points to Hezbollah in Hariri Murder, Der Spiegel, May 23, 2009, available at http://www.spiegel.de/international/world/0,1518,626412,00. html. More information about the U.N. response to the Hariri assassination, including the Security Council resolutions and investigation reports, is available at Special Tribunal For Lebanon, Background Documents, http://www.stl-tsl.org/sid/49. 124 Richard Beeston & Tony Halpin, Russia Vows to Retaliate as Diplomats Are Expelled over Litvinenko Murder, Times (London), July 17, 2007, available at http://www.timesonline. co.uk/tol/news/politics/article2087274.ece; BA Passengers in Radiation Alert, BBC, Nov. 30, 2006, http://news.bbc.co.uk/2/hi/uk_news/6158473.stm. 125 W. Michael Reisman, Why Regime Change Is (Almost Always) A Bad Idea, 98 Am. J. Int’l. L. 516 (2004).

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of state sovereignty and human rights. He states, “modern international law has resolved this antinomy in the following way: state sovereignty prevails in all but the most egregious instances of widespread human rights violations … .”126 But, as Michael notes, these contradictory principles do not produce “a tidy jurisprudence.”127 Once again, international legal judgments are best drawn from contextual application of conditional factors. This qualification also reflects that unilateral and multilateral state efforts to uphold human rights through regime change are not always purely altruistic in motive. “Regime change” is an intelligence subject because, at least in historical practice, it is a classic policy objective of both covert and overt action. Intelligence is also a critical component to overt efforts at regime change, and intelligence helps to determine whether such policies are pursued overtly or covertly. In Regulating Covert Action, Michael and I analyzed a number of Cold War covert examples, including Iran (1953),128 Chile (1964-1973),129 and Poland (1981).130 Overt examples abound, as well. In 1979, there were at least four such instances.131 There is also the 2003 U.S. invasion of Iraq, which Michael describes as “the Mother of All Regime Changes.”132 And, there are others. The conditional factors identified by Michael are applicable for determining the lawfulness of regime change efforts. This is noteworthy in the intelligence context because some of these factors are predicated on the use of overt mechanisms to accomplish the objective. Michael’s ten guidelines for regime change are also apt because they too place special emphasis on overt rather than covert mechanisms.133 126 127 128 129 130 131

Id. at 517. Id. See Reisman & Baker, supra note 17, at 49-50. See id. at 59-61. See id. at 64-65. As Michael observed, in 1979: Tanzania invaded Uganda and replaced the Idi Amin dictatorship with a government led by a former elected president. France invaded what was then known as the Central African Empire, imprisoned the self-styled emperor, Jean Bedel Bokassa, and put in power a former president of the country, David Dacko, who had conveniently been residing in Paris. Vietnam invaded Cambodia, expelled the Khmer Rouge government from Phnom Penh, and put Hun Sen in power. The Soviet Union invaded Afghanistan, overthrew and killed President Hafizullah Amin, made Babrak Karmal president, and subsequently replaced him with another puppet, Dr. Najibullah.

Reisman, supra note 125, at 518. 132 Id. at 519. 133 The guidelines are: 1. As much international organizational support should be gained as possible. 2. If a regime change is not formally authorized by the United Nations, there should be significant foreign support (especially in the states contributing forces) for the change. 3. There should be significant domestic and internal support for the regime change in both the would-be changer and the targeted state.

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These guidelines illustrate an essential element of Michael’s scholarship in this area of law. Like foreign policy itself, his analysis is highly contextual; broad conclusions and statements of law are unusual. In addition, Michael is never content to describe the law, but rather, as the Scholar-Teacher, he identifies the conditional factors that should inform policymakers and then promulgates guidelines to help achieve preferred outcomes. As these guidelines reflect, regime change may appear to be a policy panacea, even, or especially, when conducted in secret. But decision-makers should heed the law of unintended consequence and, as Justice Jackson cautioned in Youngstown, be wary of focusing exclusively on the immediate effects of action without also identifying the enduring consequences.134 Consequences may be especially hard to regulate or manage when acting alone and in secret. While tempting, as with regime change and even targeted killing, sweeping judgments regarding covert action generally should be eschewed. [W]e found that the international legal process, while often condemning uses of covert instruments at the verbal level, frequently accepted or accommodated itself to such uses. This accommodation was most likely to occur when the evaluators held that, the covert character of the operation notwithstanding, the application of the instrument was otherwise lawful under international law.135

There is, for example, a significant difference in policy, morality, and law between a French action to sink a vessel used for environmental protest in Auckland, New Zealand, and what one U.S. DNI has described as efforts to disrupt the terrorist supply chain for obtaining WMD. 4.

The individual or elite group that is the target of regime change should not have an effective internal base of support. 5. An acceptable alternative government should be readily available, one that promises to be effective, so that, ideally, all that would be involved is regime change and not regime reconstruction or nation building. 6. The occupation by an outside force should be short. 7. The costs to the outside force should be minimal. 8. The force accomplishing the regime change should not be believed, by those within the country or outside it, to have a parochial interest in securing the change. 9. The earlier recommendation notwithstanding, where nation building is an inevitable part of the regime change, the United Nations should be responsible or prominently involved, as in Namibia, East Timor, and Kosovo. The UN commitment should be secured before the regime change. 10. Do not forget Murphy’s Law: Have an exit strategy. As in all elective uses of force, the Powell doctrine should apply. Id. at 524. 134 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring). 135 Reisman, supra note 6, at 420 (referring to the study we undertook for our book, Reisman & Baker, supra note 17).

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Covert action can also serve as a source of stability—the prevention of conflict— by giving states on both sides of a conflict equation a plausible basis on which to deny complicity or avert the necessity of direct response.136 The arming of the mujahedeen in Afghanistan was hardly “covert” in a secret sense, but it was not acknowledged publicly, nor was the role of the United States nakedly apparent. Thus, when combined with the absence of direct conflict between Cold War opponents, as opposed to that between proxies, Moscow might avoid the domestic pressure and policy imperative of responding directly to the U.S. role. Contrary to popular perceptions, many of the most controversial active intelligence tools, like rendition and the use of unmanned aerial vehicle (UAV) drones, are not inherently lawful or unlawful. Their lawfulness depends on contextual analysis. The validity of their use may depend on whether they are used in a manner that advances an essential public order function and whether their use is consistent with stated U.S. legal values. However, some tools that some might associate with the intelligence instrument are inherently unlawful, in U.S. and international law, such as torture and extra-judicial murder. For all these reasons, Michael and I called our book “Regulating” Covert Action. We were neither blindly in favor of the function, nor opposed to its inclusion in the arsenal of policy options. What we did conclude was that, in light of the historic and legal peril in using the intelligence instrument, a timely and meaningful process of review was warranted, and we offered ten specific guidelines to accomplish this goal. IV. Intelligence Process A. The Three Roles of Law 1. Substantive Authority One of the three functions that national security law performs is providing the substantive authority to act. In U.S. practice, that authority is derived from the Constitution, statute, Executive directive,137 and in limited context, case law validating assertions of the former sources of law. Where the Executive acts pursuant to its own 136 See James E. Baker, Covert Action: United States Law in Substance, Process, and Practice in The Oxford Handbook of National Security Intelligence (2010, Oxford University Press). 137 With respect to intelligence liaison, for example, authority is derived from all four sources. The Constitution enumerates the President’s authority to receive and send ambassadors, while the President’s authority over diplomacy more generally is derived from this authority and from his authority as Chief Executive and Commander in Chief. The National Security Act, as amended, expressly authorizes the DNI and Director of the CIA to engage in intelligence relationships with foreign services. Executive Order 13,470, and before it, Executive Order 12,333, in turn, expressly authorize and task the DNI and Director with responsibility over intelligence liaison relationships. Finally, in Totten v. United States, 92 U.S. 105 (1875), and United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936), one can find support for the proposition that the President has considerable authority derived from the Constitution to engage in intelligence-gathering, in the case

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constitutional authority as well as that granted by the Congress, it acts at the zenith of its authority. When the Executive acts solely pursuant to its authority and contrary to statute, to the extent the President acts in a lawful manner at all, he acts at the ebb of his authority. This, of course, is a restatement of Justice Jackson’s Youngstown paradigm.138 It is also a constitutional truism. Less apparent is the role that clear authority, clearly invoked, plays in emboldening intelligence actors to take risks in the field or, in the converse, the extent to which ambiguous authority can create a cautionary climate. Moreover, in contrast to certain military cultural indicators, the cultural impact of “headquarters directives” on intelligence operators is less manifest and therefore harder to discern and evaluate until after the fact. For that reason, special emphasis should be placed on ongoing appraisal. For example, a Marine might read an order to kill, or if possible capture, a target one way and an intelligence officer might read it another way. The Marine might assess the tactical context and then set an ambush patrol with orders to take prisoners, if possible. An intelligence officer, buffeted by the winds of investigation, might read the same order with caution, worried that “feasibility” judgments made in the field will be second-guessed in Washington. This cultural point is illustrated with reference to internal guidelines the CIA Director promulgated in 1995 for the recruitment of assets (agents), which required headquarters approval for the recruitment of persons who had committed human rights violations or acts of terrorism. The Guidelines responded to the retention in the 1990s of a Guatemalan colonel suspected of human rights violations and accused of the torture and murder of, among others, the common law spouse of a U.S. citizen.139 The Guidelines were drafted internally by the General Counsel of the CIA with a lawyer’s sound sense of logic and exception. The Guidelines did not prohibit reof Totten, directly as a case officer (!), and in the case of Curtiss-Wright, through the use of “his confidential sources of information.” Id. at 320. 138 See Youngstown, 343 U.S. at 635-37 (Jackson, J. concurring) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. … 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. … 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”). 139 See Intelligence Oversight Board, Report on the Guatemala Review (June 28, 1996), available at http://www.ciponline.org/iob.htm (concluding in part: “Credible allegations of serious human rights abuse were made against several then-active CIA assets.”); Tim Weiner, Records Tie C.I.A. Informer to Two Guatemala Killings, N.Y. Times, May 7, 1996, at A1 (“The case of Col. Julio Roberto Alpirez, which came to light in March 1995, disclosed the Central Intelligence Agency’s long and deep ties to Guatemalan military officers who have been suspected of human-rights abuses. The case compelled the C.I.A. to dismiss a former chief of covert operations in Latin America and a former station chief

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cruitment of “bad” agents; indeed, it was generally recognized that those were exactly the types of agents who could provide access to hard targets. What the Guidelines required was a balancing of the pros and cons of recruitment of the sort that apparently had not occurred in Guatemala, with accountability established in writing at the headquarters level. (Moreover, it is worth noting that there was no suggestion or attempt to argue that the colonel in question had been either a valued source or an avenue of access to a hard target.) On paper, this seemed to work. And, perhaps it did. There is no indication in the 9/11 Report or the Report of the National Commission on Terrorism (Bremer Commission) that an appeal was taken to the NSC or the NSC staff, over or through the DCI or his General Counsel, to repeal or modify the regulations.140 Operational officers were invariably asked at NSC meetings whether there was anything they needed in additional resources, funding, or authority to penetrate the hard targets. There is no indication that the Guidelines were raised in any of these contexts. There is no public indication whether general waivers were sought and, if so, whether they were granted. Nonetheless, after 9/11 and during the 9/11 Commission proceedings, the Guidelines were a point of contention. Some operations officers argued that the Guidelines had inhibited or even prevented the recruitment of assets to counter-terrorism. The Bremer Commission concluded that the Guidelines “deterred and delayed vigorous efforts to recruit potentially useful informants.”141 No doubt, some officers also cited the Guidelines as cover for what was at root an inability to penetrate a very hard terrorist target. Still other officers may have proceeded apace. Reading history backwards, however, it is apparent that, as a matter of craft and culture, an officer in the field, especially one under non-official cover, might be constrained in recruiting an asset if the natural flow of recruitment had to be broken in order to obtain higher approval before making the pitch or pulsing the monetary or emotional hook. In addition, it seems apparent that there would be contexts where contacts might be so intermittent that any break in the contact might be tantamount to terminating the effort. This illustration demonstrates the difference between law and culture and how sometimes senior officials, lawyers, and operators may speak the same language, but not understand each other. Therefore, a good intelligence process is one that addresses problems with culture, personality, leadership, and not just law, and that identifies problems in advance of crisis, not just after a failure, real or perceived.

in Guatemala and led to stricter rules governing the way the agency recruits and handles thousands of paid informers.”). 140 9/11 Commission Report, supra note 30; Nat’l Comm’n on Terrorism, Countering the Changing Threat of International Terrorism (2000) [hereinafter Bremer Commission Report]. 141 Bremer Commission Report, supra note 140, at 8.

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2. Process In addition to providing substantive authority, the law can provide a framework for a normative decision-making process. In U.S. intelligence practice, much of the law defining intelligence process is found in classified directives; however, a number of statutes provide essential procedural frameworks. For example, the National Security Act of 1947, as amended, defines covert action and requires a process of presidential approval in the form of a written finding followed by congressional notification.142 Executive directives and internal guidelines take the process further. In the area of foreign intelligence surveillance, the Foreign Intelligence Surveillance Act establishes a court to authorize surveillance orders, and the Act creates a process of internal approval by specifying those officials of senior rank who alone can authorize surveillance or certify its purposes.143 Michael has described seven essential functions in the decisional cycle.144 The first is intelligence. The last is appraisal. Where process is embedded in law, the essential decisional functions are more likely to occur. That means decisions are more likely to include a meaningful process of intelligence collection, dissemination, and evaluation. These decisions are also more likely to withstand the structural pathologies 142 50 U.S.C. § 413b(e) (2006). 143 50 U.S.C. §§ 1802, 1803 (2006). 144 The seven functions are: (1) intelligence, or the gathering, processing, and dissemination of information relevant to making social choices; (2) promotion, or the processes by which individual or collective awareness of a discrepancy between a desirable state and one that is or is about to take place gradually leads to a demand for some type of community intervention and regulation; (3) prescription, or law-making, which occurs when actors, with varying degrees of authority, select and install certain preferences about policy as community law. This may be accomplished by a legislature or some other organized law-maker; but it is usually, and, especially in international law, largely accomplished in informal and sometimes even chaotic processes whose outcomes are generally referred to as “custom.”; (4) invocation, or the provisional characterization of a certain action as inconsistent with a prescription or law that has been established. Invocation is often accompanied by the demand that an appropriate community institution act; (5) application, which involves the organization of the facts of a particular dispute, the specification of a norm or norms that apply, and the fashioning of a mandatory formulation. When this takes place in a court, it is called a judgment, but it also occurs in informal, unorganized situations; (6) termination, or the abrogation of existing norms and the social arrangements based upon them, the development of transitional regimes and, where appropriate or necessary, the design of compensation programs for those who have made good-faith value investments on the expectation that the old regime would continue; and (7) appraisal, which is concerned with evaluating the aggregate performance of all decision functions in terms of community requirements. Michael Reisman, A Jurisprudence from the Perspective of the “Political Superior,” 23 N. Ky. L. Rev. 605, 612 (1996); see also Reisman, supra note 33, at 4.

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of secrecy and speed that are endemic to national security generally, and the intelligence mission specifically. Of course, procedural directions embedded in law (including presidential orders) set a normative base; they create opportunity, not result. Informal process will govern decision-making as much as formal process. In the end, presidents, APNSAs, DNIs, and CIA Directors get the process they tolerate and demand, not that they direct. But directives create expectations and habits, and offer policymakers and lawyers a baseline against which to judge the actual process used (or not used). Hence, these parties might then ask, what motivates the deviation, is the deviation necessary, and what, if any, decisional risks or pathologies have been assumed in doing so? 3. Legal Values as Security Policy Values National security law can also serve as a policy value and multiplier—outwardly reflecting who we are, how we wish to be perceived, and how we compare to the opponent. This is evident in the context of the law of armed conflict. Adherence to the targeting principles of discrimination, proportionality, and necessity, for example, accomplishes three ends. The first end is that it minimizes human suffering. The second end is that it contributes to mission accomplishment. As recognized in the 2006 Counterinsurgency Manual, discrimination in targeting conserves force and it is more likely to result in a friendly, or at minimum passive, civilian population, which will ultimately determine whether an insurgency is countered successfully.145 Likewise, one can see that legal values derivative of the First Amendment may advance the same policy objectives. A free press with reasonable and timely access to military information can more credibly expose and counter enemy propaganda than will a government spokesperson.146 The third end is that adherence to the targeting principles reflects U.S. respect for the law, regardless of the opponent’s conduct. Where the United States has been perceived to act outside the law with respect to rendition, for example, this perception has had direct and demonstrable national security effect, and not just as a source of propaganda and recruitment. Officers have been put in jeopardy and effectively barred from certain foreign countries. Flight clearances have been denied for national security missions that may, or may not, pertain to rendition. And liaison services have denied the U.S. access to information and sources. In intelligence practice, it is evident that debates about the legality and efficacy of coercive interrogation, torture, and extraordinary rendition include not only a discussion about legal values, but also about the derivative policy impact of acting upon these legal values. Former Vice President Cheney said: “[W]ith the intelligence programs, the Terror Surveillance Program, as well as the interrogation program, we set out to collect that kind of intelligence. It worked. It’s been enormously valuable

145 Headquarters Department of the Army, Field Manual 3-24: Counterinsurgency 1-5 to 1-29 (2006). 146 See, e.g., Milt Bearden, When the C.I.A. Played by the Rules, N.Y. Times, Nov. 4, 2005, at A27.

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in terms of saving lives, preventing another mass casualty attack against the United States.”147 In contrast, President Obama said that: [W]aterboarding violates our ideals and our values. I do believe that it is torture. I don’t think that’s just my opinion; that’s the opinion of many who’ve examined the topic. And that’s why I put an end to these practices. I am absolutely convinced it was the right thing to do—not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.148

It is also evident that how one looks at these issues may depend on whether one is looking through a domestic, international, political, or legal lens. Each of these statements above is cast in terms of a value-based policy effect, and not necessarily based on legal analysis of applicable law. Perhaps DNI Blair came closest to seeing through both a far- and near-sighted lens when he said: The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security.149

B. Process of Decision—Structural Pathologies and Mitigating Criteria 1. Process and Substance Michael’s substantive analysis of intelligence has focused on all three aspects of national security law; indeed, these separate aspects present an integral whole and cannot be effectively evaluated in the disaggregate. The substance of the law may not be meaningfully and timely applied without an effective process of decision. A flawed process, or flawed substance, may diminish or distort policy values and objectives. However, at root, what sets Michael’s commentary on intelligence apart from other commentary is its multi-disciplinary focus on the process of decision, including the role that personality plays and its relation to the law.

147 Hannity (Fox News television broadcast Apr. 20, 2009) (interview with Dick Cheney, former Vice President of the United States), transcript available at http://www.foxnews. com/story/0,2933,517300,00.html. 148 Barack Obama, President of the United States, Remarks at a News Conference (Apr. 29, 2009), transcript available at http://www.whitehouse.gov/the_press_office/News-Conference-by-the-President-4/29/2009/. 149 Statement, Dennis C. Blair, Director of National Intelligence (Apr. 21, 2009), available at http://www.dni.gov/press_releases/20090421_release.pdf.

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As Michael succinctly states, “[L]aw … is about making decisions.”150 Decisionmaking is about process. Process can be either good, bad, or absent. More precisely, a good process of decision is one that is timely and inclusive, and which incorporates law, intelligence, dissent, and appraisal. A bad process is one that is exclusive of viewpoint, exclusive of skill set, or slow to or unable to reach decision. Good process is particularly important where the intelligence instrument is concerned. That is because the structural pathologies that are endemic to national security decision-making, such as secrecy, speed, immediacy, and collusion, are often exaggerated in the intelligence context (the risk of what Janis called “groupthink,”151 the application of group dynamics in curtailing critical thinking). As Michael has noted, “[s]ecrecy barriers are especially important in crises, since judgments based on rumor, deception and half-truth are unsatisfactory guides to action.”152 For someone who observes the field from the outside (in both an academic and operational sense), Michael has an uncanny understanding of how intelligence bureaucracies work and the effect of personality on those bureaucracies. Here is an example from The Intelligence Function: The effect of institutionalized structural patterns on human activity is a critical factor in performance level. Some attention has been directed to the problem of structural “pathologies” in information collection. Drawing on a broad literature and wide empirical investigation, Wilensky isolates a number of organizational factors inducing the failure of an intelligence sequence. An excessively hierarchical organization in which rank is multiplied, delineated in detail and subjected to the ascription of intense symbolic differences, tends to block upward communication, to create horizontal loyalties retarding the vertical sharing of information and to set recruitment and advancement standards in terms of organizational compatibility rather than talent. An organization structure which induces specialization and interdepartmental rivalry tends to parochialize intelligence foci and to render intelligence a base of power for departmental maneuvering as well as an output for the servicing of elite decisionmakers. When competition becomes more intense, departments become reluctant to share information and may produce irrelevant or misleading information.153

Unpack this dense paragraph and one is offered rich insight into how the phrase “intelligence community” is sometimes an oxymoron. Some may also see in this paragraph a description of the historic relationship between the CIA and the FBI. What I see is an effort to isolate particular pathologies that disrupt good process and therefore undermine the capacity of the intelligence instrument to inform decision, prevent surprise, and predict future trends.

150 151 152 153

Reisman, supra note 6, at 420. Irving L. Janis, Victims of Groupthink 9 (1972). McDougal, Lasswell & Reisman, supra note 8, at 351. Id. at 316.

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There is also risk that the intelligence mission itself will create its own pathology, as security specialists in good faith and with good intention reach further and further to protect the nation from “enemies, foreign and domestic.”154 If the counterintelligence specialist is looking for a spy, he cannot stop until he finds the spy—nor should he. But this leads to a natural tendency to overshoot rather than undershoot the target, such as, for example, erring on the side of investigating innocent persons rather than falling one spy short. Imagine the same pressures applied to a search for a WMD terrorist. Moreover, it takes more moral courage to stop an investigation than to start one. All the default settings point in one direction. A good process, therefore, is one that will identify this risk, and ensure that, where results are not achieved, resources are reallocated to more fruitful targets. This should be done as a matter of law and legal values. But it should also be done because it is the correct national security decision, allowing as it does, finite resources to be redirected to more fruitful activities. Among other things, this requires effective roleplaying. In this secretive environment, when one is searching for the Devil, someone must play the role of Devil’s Advocate and someone must play the role of the courts. Both roles often befall the intelligence lawyer, if they are played at all. 2. Criteria In this regard, Michael offers criteria to define and inform an effective intelligence process. a. Dependability This is a straight-forward criterion that warrants constant emphasis and evaluation. Clearly, intelligence must be realistic, competent, contextual, accurately communicated, and perceived as such by the recipients. Dependability necessarily entails a process of internal and external validation and accountability. Michael notes that “[in formal legal processes, in which data is collected and tested in adversarial procedure, comparable standards are expressed in principles of admissibility, credibility and relevance.”155 If one is looking for an example of what is meant, or what is not meant, by dependability, the story of the German liaison source dubbed, of all things, “Curveball,” and his false information about Iraqi WMD, is a good place to start.156 The story also illustrates the human instinct to see and hear what one is looking for, one of many risks to dependability. b. Comprehensiveness Here, Michael means inclusiveness in terms of goals, trends, conditioning factors, projections, and policy alternatives.157 In short, this criterion contemplates a systematic search for alternatives and elimination of cultural and bureaucratic bias. 154 Oaths of Enlistment and Oaths of Office, http://www.history.army.mil/faq/oaths.htm. 155 McDougal, Lasswell & Reisman, supra note 8, at 292 (footnote omitted). 156 See Bob Drogin & Greg Miller, Iraqi Defector’s Tales Bolstered U.S. Case for War, L.A. Times, Mar. 28, 2004, at A1. 157 McDougal, Lasswell & Reisman, supra note 8, at 293-94.

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c. Selectivity This criterion addresses the volume of intelligence information. A sound intelligence process relates intelligence to perceived problems and gives priority to immediate needs and the policy alternatives presented. Selectivity also focuses on the specific needs of the client—the intelligence actor. And, selectivity is the critical skill and art in knowing what to pass up the chain of command and what to retain, especially given the mass amounts of information that flows through government channels each day. Thus, this criterion, for example, might be reflected in adjustments that are made in the form and content of the President’s Daily Intelligence Brief. d.

Creativity

This criterion includes the cultivation of diversity as an approach to planning and addressing problems. In our interactive, accelerated world, the realms of the physical, biological and cultural are simultaneously implicated to a degree that requires continual surveillance by multidisciplinary teams concerned with the technical, administrative, legal and support strategies required by massive change. A new device for detecting nuclear weapons … [this is] among the contributions that may release creative solutions to problems of transnational structure.158

Creativity also includes the institutionalization of “challenging of assumptions.”159 I call this role-playing. Here too, diversity, in the form of background, training, and viewpoint, is essential: “[O]ne crucial component of social knowledge is the combined experience of each inimitably unique individual. In this respect, optimally comprehensive intelligence is an intelligence process in which participation is maximally shared.”160 e. Openness This criterion has three facets. The first is “[o]penness to available intelligence,”161 by which Michael means receptivity to divergent sources of intelligence without undue reliance on “intelligence sources,” or sources marked “SECRET.” Moreover, “the requirement of inclusiveness calls for a stream of intelligence in which the whole range of proposed policies and strategies obtains representation.”162 This facet might be illustrated with reference to efforts after 9/11 to engage actors from across the profes158 159 160 161 162

Id. at 295. Id. Id. at 344. Id. at 295. Id. at 294.

7 James E. Baker, Prelude to Decision

sional spectrum to assess and predict the where and the how of the next attack. It is also illustrated by the advent of the Intelligence Advanced Research Project Agency, modeled on the Defense Advanced Research Project Agency (DARPA) and its distinguished history of invention. The second facet is “[o]penness to contribution to intelligence,”163 by which Michael means the disdain for monopolistic practices of information control that treat information as a base of power and sometimes result in uniform thinking due to group dynamics and homogenous backgrounds. The third factor is “[m]obilization of demand for participation in the intelligence process,”164 or a process that keeps decision-makers engaged. Such a process is inclusive of external and global actors because one cannot determine with certainty which actors will be critical as suppliers of intelligence or users of intelligence in the future. Snub these actors and you may find they are not engaged or receptive when they are most needed. f. Economy This criterion recognizes that resources, and in turn, the allocation of intelligence capacity, are necessarily limited and must compete with the legitimate needs of the other security and governmental functions, even during time of conflict, and especially during times of economic recession.165 Economies of scale can be achieved through the reduction of redundant activity and the merger of like functions into streamlined bureaucracies, such as the National Counter-Terrorism Center, which combines all of the national counter-terrorism components and many state and local components to integrate all-source all-threat reporting under one roof. At the same time, this criterion may conflict with the creative and inclusive criteria by limiting opportunity for divergent views and dissent. Economy will also place increased pressure on the liaison instrument necessitating correlating adjustments in process and appraisal to ensure that liaison receives a corresponding measure of review.166 3. Inclusiveness One theme emphasized throughout the Reisman criteria is inclusiveness. Inclusiveness is the antidote to many of the national security pathologies. It is also an element of all the other criteria, when those criteria are properly engaged. Yet it is counterintuitive to the secrecy instinct of intelligence culture: “[S]ecrecy so often breeds further secrecy, and secrecy so characteristically generates conscious and unconscious interest in omission, distortion and routine. …” 167

163 164 165 166 167

Id. at 295. Id. Id. at 297. See Baker, supra note 88, at 648. McDougal, Lasswell & Reisman, supra note 8, at 296.

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Inclusive does not mean “public.” Although in context, an inclusive process may include a public element, like diplomacy or homeland security.168 Also, inclusiveness only works if it exists within a process of decision. It has been said that the military operates within a chain of command, and that civilians operate within a “chain of discussion.”169 Sometimes operators object to an inclusive process of decision because it engenders debate and thus takes longer. But, one should not confuse debate with delay. Debate and dissent help to identify risk along with mitigating strategies for those risks. The key is that once the positions are fixed, a good process must drive toward decision. “[T]he utility of the most accurate and timely intelligence depends upon a decisionmaker [sic] capable and willing to use it.”170 Inclusiveness should occur on an external as well as internal basis. What does that mean? It means that a meaningful process of congressional notification and consultation should be embraced rather than eschewed. Meaningful and credible congressional involvement enhances the constitutional authority of the president to act, as set forth in the Youngstown paradigm. Risk-taking in the field may increase if operatives do not fear they will face a later congressional backlash. And, congressional involvement mitigates the risk that in the event of failure, the intelligence agencies will alone bear the brunt of public and global reaction with a corresponding diminution in morale and recruitment (in all its meanings). Inclusiveness is also a global concept. The threat of WMD terrorism or the destabilizing effects of a nuclear-armed Iran or North Korea also put new emphasis on old issues about the inclusive or exclusive nature of intelligence and the monopoly of state actors. This is what Michael wrote in 1973: One important opportunity is to direct effort toward increasing the organized inclusiveness of the intelligence function on a global scale. It is now perceived how urgently this is needed for the maintenance of “security” in the broadest sense, including both protection against military attack and the conservation of the environmental resources upon which all values depend.171

In the early 1990s, this principally took the form in U.S. practice of constitutional debates over the President’s authority to share intelligence-derived information with foreign actors and international organizations in a peacemaking and peacekeeping context. In the age of WMD terrorism, which, for the sake of argument, commenced in 1995 with the Shinrikyo Tokyo subway attack, the issue has taken on two additional manifestations. First, intelligence inclusion, or exclusion, is included in the legal debate with respect to anticipatory self-defense and preemption. States with sophisticated and 168 Advocates for transparency beware: The quickest path to an exclusive process is through the gate marked “unauthorized disclosure.” 169 Colonel Arie Zakaria, Remarks at 22nd Annual United States Pacific Command International Military and Law Conference (Mar. 31, 2009). 170 McDougal, Lasswell & Reisman, supra note 8, at 287-88. 171 Id. at 348.

7 James E. Baker, Prelude to Decision

comprehensive intelligence instruments, it would seem, are particularly situated to exercise a right to use force. They alone may have the capacity to detect imminent and inchoate threats from non-state actors and possess the wherewithal to act. On a global scale, that may mean the United States alone. On a regional level, that may mean that Israel has special capacity to assert such a right that other states may lack. Second, the role of inclusive intelligence arises in the context of nonproliferation and the role of non-governmental organizations and international organizations in channeling information to and from state actors intent on containing the spread of WMD. This role may place international actors like the International Atomic Energy Agency (IAEA) and the United Nations in a de facto position as affirmative participants in the policy process, rather than neutral or passive observers, and this role can result in physical risk for the organizations. It can also heighten or diminish the capacity of such organizations to perform equivalent functions at later times or in future scenarios. 4. The Human Factor Inclusiveness also mitigates the distorting impact that personality can have on effective process. To use Graham Greene’s phrase, the intelligence function is all about the “human factor.”172 Law and process matter, but in the end the intelligence function depends on: the spy, who decides to defect; the analyst who spots the antenna protruding from a cave; the scientist who designs the camera capable of detecting the antenna; and the translator who discerns the essential tone or nuance distinguishing the coded message from the innocuous “call to mom.” Intelligence is a human endeavor, with the strengths and weaknesses that “human endeavor” implies. This is also true of intelligence law. Lawyers can become myopic about the law. We are a nation of laws. But we are also a nation of men and women. As Whit Griswold noted: [E]xperience has obscured the fact that, no matter how carefully defined and administered, no government of laws is insensible to what Plato termed “The endless irregular movements of human things.” Laws are made by men, interpreted by men, and enforced by men, and in the continuous process, which we call government, there is continuous opportunity for the human will to assert itself.173

Intelligence, like much else, is ultimately a human endeavor, not a legal one. The law and lawyers play a supporting role. But, in a democracy, law and process are a critical, if not the critical, support in upholding efficacy of the function and ensuring it is conducted consistent with the constitutional values of security and liberty. Where intelligence is concerned, personality as much as process dictates the quality of legal input and output: – Personality determines how lawyers define their roles, and whether they do so in a passive or active manner. 172 Graham Greene, The Human Factor (1978). 173 Griswold, supra note 3, at 124.

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–

–

–

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–

Personality determines whether the lawyer is proactive or reactive in identifying legal questions and solutions. Personality determines whether the law is applied with a broad and unchecked theory of constitutional power or a narrow and cautious risk-averse theory, or something contextual that is in-between. The human factor determines whether the lawyer advises on the law and legal policy or just the law. The latter tells the client whether a particular interrogation method is lawful; the former tells the client whether the interrogation method is a good idea and provides the legal and policy implications of proceeding, including the enduring consequences of doing so. The human factor determines whether the lawyer is able to meaningfully access the clandestine service and provide proactive advice, and then, whether the lawyer is co-opted during the process. Personality determines whether the lawyer can be bullied off his or her line. Personality determines whether a lawyer has as much moral courage to terminate unsuccessful surveillance as he or she does when initiating surveillance, thus allowing finite assets to shift to other targets. And, personality ultimately determines whether the lawyer values his or her integrity more than he or she values his or her job.

In the intelligence field the application of law and process does not occur automatically, by operation of law, or because an outside entity pressures an agency. All of this occurs because a lawyer or operator exercises choice. However, an inclusive process makes it more likely that this will occur because there is someone to remind, to test, and ultimately to account. In the alternative, an inclusive process makes it more likely that critical actors will realize when the application of law and process is not occurring. V. Conclusion: Guiding Toward Preferred Outcomes The hallmark of Michael’s scholarship is its search for operational legal reality followed by the identification of preferred outcomes. For this reason and others, Yale Law School’s conference in honor of Michael was titled “Realistic Idealism in International Law.” In a different forum, I might call this “the Boy Scout principle of law”—that is, leave the law better off than you found it. In the intelligence context, Michael has sought to do this through the identification of guidelines, rather than the advocacy of absolute permits or proscriptions in the use of the intelligence instruments. That is because it is hard to determine just where international law starts and ends, if it begins at all. More importantly, for the reasons explained above, the lawfulness of conduct will depend on context, such as the purposes for which an activity is conducted, the manner in which it is conducted, and the conditional factors present, including the active or passive nature of the conduct and its impact on individual rights. Enormous progress has been made since 9/11, and indeed since 1993, to improve the intelligence function, information sharing, language skills, risk management, and

7 James E. Baker, Prelude to Decision

analytic process. However, Michael’s scholarship suggests, as Sherman Kent174 and Roberta Wohlstetter175 no doubt would agree, that certain intelligence truths are enduring and certain pathologies endemic. In Regulating Covert Action, Michael sought to identify some of these truths through the identification of guidelines for reviewing covert action.176 A review of Michael’s intelligence scholarship suggests a number of additional and abiding guidelines today. – Dependable intelligence depends on sound and dependable process. Intelligence producers and consumers get the process they demand or accept. – A good process is one that: contains role-playing, including the advocacy of alternative positions and projections; identifies the enduring consequences of action or inaction as well as the immediate effects; and, includes an accountable process of preview and appraisal. – “[T]he utility of the most accurate and timely intelligence depends upon a decisionmaker capable and willing to use it.”177 – Intelligence law, like other national security law, is composed of three distinct roles—authority, process, and values. If intelligence lawyers are not providing law and legal policy advice with respect to all three, they are not doing their job. – The structural pathologies of the intelligence function—secrecy, speed, and induction—generally pull in one direction. Inclusiveness, internal and external, pulls in the other. – Keep the big picture in focus; focus on purpose. If an intelligence activity is not fulfilling at least one of the core intelligence purposes, decision-makers should ask why. What is the purpose of this activity? And, is the activity otherwise detracting attention, funding, authority, or personnel from a core intelligence mission? – Finally, intelligence is a human endeavor. It depends on the physical courage of its operators, the creativity of its analysts, and the moral integrity of its lawyers. Success or failure will therefore derive, not from the law, but from the quality of those who lead, apply, or utilize the intelligence instrument. As Scholar-Teacher, Michael Reisman, like Yale’s Sherman Kent and Brad Westerfield before, reminds us of these core truths. He also reminds us, with his words and through his example, to reach for our constitutional ideals—of liberty and security— 174 See, e.g., Sherman Kent, Strategic Intelligence for American World Policy (1949). 175 Wohlstetter has written: [It is] much easier after the event to sort the relevant from the irrelevant signals. After the event, of course, a signal is always crystal clear; we can now see what disaster it was signaling since the disaster has occurred. But before the event it is obscure and pregnant with conflicting meanings.

9/11 Commission Report, supra note 30, at 339 (quoting Wohlstetter, supra note 30, at 387). 176 Reisman & Baker, supra note 17, at 140-43. 177 McDougal, Lasswell & Reisman, supra note 8, at 287-88.

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not just when arguing on behalf of human rights or international law, but in the manner in which we collect, process, and use intelligence.

Chapter 8 Prologue to a Theory of Non-Treaty Norms Daniel Bodansky*

“The study of international law must be contextual, i.e., it must perceive all features of the social process of immediate concern. … It must be problem-oriented. It must be multi-method.”1 These words were written more than forty years ago. But they describe a perspective on international law as fresh and relevant today as when it was first articulated by the New Haven School a half-century ago. In his casebook on jurisprudence,2 Michael Reisman illustrates his general approach to the study of law with a story about a lawyer going to the imaginary village of Penntown on behalf of a company that is considering establishing a manufacturing facility there. The lawyer’s task is to report on how decisions are actually made: You arrive in Penntown to flesh out the picture. Whom do you ask? What do you ask? What information is really necessary for you and for your client in order for each of you to understand the environment into which the foreign corporation may enter and how to plan its entry and operation efficiently?3

As Professor Reisman emphasizes, in order to describe the legal system accurately: It is not enough simply to tell [the company] what the formal rules are, for unless Penntown is a very exceptional case, the rules will not actually be applied or applied in a strict fashion in many cases. Even where they are applied, many other factors may enter into how the rules are applied and in the fashioning of the decisions that will affect your client. You must, *

1 2 3

This essay draws on two previously published pieces: Customary (and Not So Customary) International Environmental Law, 3 Ind. J. Leg. Stud. 105 (1995), and The Art and Craft of International Environmental Law, ch. 9 (2009). I would like to thank Harlan Cohen for his many helpful suggestions on this draft. Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188, 196 (1968). W. Michael Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping Law (1987). Id. at 2.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © 2010 by Daniel Bodansky. .

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in short, understand the processes in which decisions are taken in order for you and your client to begin to make matter-of-fact assumptions about what future course of behavior will be followed by officials and non-officials in Penntown.4

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Whether or not one considers oneself a member of the New Haven School, the general approach described by Professor Reisman is remarkably illuminating and fruitful: – It takes a comprehensive view of what counts as “law”—not only the rules of treaty and customary international law, but the much wider processes of “authoritative decision.” – It takes a similarly comprehensive view of the relevant actors—not only states, but any actor who wields authority, including intergovernmental organizations, domestic political parties, non-governmental organizations, and private businesses. – It recognizes that there is not a single legal system within a political community, but multiple, overlapping systems, some formal and others informal, some publicly established and others privately, some representing a “myth system” and others an “operational code.”5 – It emphasizes the need to study these phenomena using a variety of methods. – Finally, it suggests thinking through these complex, theoretical questions in the context of concrete settings like the lawyer going to Penntown.6 In this chapter, I attempt to unpack some conceptual issues relating to non-treaty law. Although I do not employ the specific theoretical apparatus of the New Haven School, Professor Reisman’s perspective and example animate the analysis. I. Non-Treaty Norms Exercise reasonable care to prevent one’s territory from being used to injure another state. Do not use scientific uncertainty as a reason for inaction against environmental threats. In elaborating environmental commitments, take into account states’ common but differentiated responsibilities and respective capabilities. All of these are putative norms of what I will call in this essay “non-treaty” law.7 4 5 6

7

Id. at 3 (emphasis in the original). W. Michael Reisman, Folded Lies: Bribery, Crusades, and Reforms 15-36 (1979). Professor Reisman’s method of using concrete examples to illuminate theoretical issues is perhaps worth emphasizing. In some cases, real world incidents provide the examples, see, e.g., International Incidents: The Law that Counts in World Politics (W. Michael Reisman & Andrew R. Willard eds., 1988); in others, everyday experience, see, e.g., W. Michael Reisman, Law in Brief Encounters (1999) (using the example of looking and staring to analyze micro-legal systems). Although the term, “non-treaty law,” is cumbersome, there is no good alternative. The phrase “general international law” is sometimes used to refer to non-treaty law, but the two are not equivalent since, on the one hand, treaties can also be general in their application, and, conversely, some non-treaty norms are regional rather than general. On non-

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

Writing more than a century ago, Lassa Oppenheim predicted that “the future of international law belongs to conventional and not to customary law.”8 And how right he was! Today, we live in a world of treaties. As of 2003, more than 50,000 treaties had been registered with the United Nations, with more than 2500 additional treaties registered each year. The U.N. Treaty Series runs to more than one million pages. On virtually every conceivable subject, from child support to climate change to cultural property, the common response to a new international problem is to negotiate a treaty. Yet despite the predominance of treaties, non-treaty norms continue to play a significant role internationally, as Oppenheim himself expected.9 Some are quite specific, such as the norm against high seas driftnet fishing articulated by the U.N. General Assembly in 1991.10 Others are more general, such as the principle of common but differentiated responsibilities—or still more generally, the norms about what constitutes a state. As many have noted, even treaty law itself ultimately rests on a non-treaty norm about the binding character of agreements. In contrast to treaty law, which raises comparatively few conceptual issues, nontreaty law is not well understood. Indeed, few topics in public international law raise as much confusion. Scholars continue to disagree about its nature, the processes by which it is created, what counts as evidence of its existence, and the degree to which it influences the behavior of states and other international actors. According to traditional “sources” theory, non-treaty norms fall into three general categories: customary international law, general principles, and so-called “soft law” (or as I prefer, “non-law”). But all of these categories are poorly understood. According to Manley O. Hudson, even the drafters of the International Court of Justice Statute “had no very clear idea as to what constituted international custom.”11 Matters are perhaps even worse regarding general principles, which arguably include everything from widely shared principles of national law, to postulates of legal logic, to principles

8 9 10 11

treaty lawmaking, see generally Developments of International Law in TreatyMaking (Rüdiger Wolfrum & Volker Röben eds., 2005). Lassa Oppenheim, The Science of International Law: Its Task and Method, 2 Am. J. Int’l L. 313, 349 (1908). See id. (recognizing that “custom will always remain at the background of international law, just as it remains at the background of statutory law within the individual states”). G.A. Res. 46/215, U.N. Doc. A/RES/46/215 (Dec. 20, 1991). Summary Records of the Second Session, [1950] 1 Y.B. Int’l L. Comm’n 6, UN Doc. A/ CN.4/Ser.A/1950. The situation has not changed much in the subsequent half century. Writing in 1971, D’Amato described the subject of custom as “wrapped in mystery and illogic,” Anthony A. D’Amato, The Concept of Custom in International Law 4 (1971), and two decades later Karol Wolfke opined that custom still raises “the greatest number of doubts and controversies” of any issue of international law, Karol Wolfke, Custom in Present International Law, at xiii (1993). G.J.H. van Hoof notes ironically that “it has become almost customary to start off a discussion of the nature of customary international law with some kind of lamentation signaling to the reader that he is about to embark upon an extremely intricate and complex topic.” G.J.H. van Hoof, Rethinking the Sources of International Law 85 (1983).

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of natural justice.12 And soft law has given rise to a cottage industry about its relationship to “hard” law and whether it is even a conceptually meaningful category at all.13 Given these conceptual confusions, it is unsurprising that, when international tribunals invoke non-treaty norms, they often do not identify the precise source. Indeed, even the International Court of Justice (ICJ), whose statute distinguishes general principles from custom, does not always do so in its decisions. In its most notable pronouncement on international environmental law, it referred to the duty to prevent transboundary harm as “part of the corpus of international law relating to the environment,” without identifying whether the duty was a rule of customary law or a general principle.14 In failing to identify the formal source of the duty to prevent, the ICJ followed the example of the arbitral tribunal in the Trail Smelter case, which first articulated the duty.15 Rather than focus on the categories of custom, general principles, and soft law, in this essay I consider other dimensions along which non-treaty norms vary, which may be more useful in understanding how international norms emerge and influence behavior.16 I will examine three alternative ways of categorizing non-treaty norms: first, whether they are accepted directly or as a result of a secondary rule of recognition; second, whether they are the result of a conscious, purposive process, with identifiable authors, or arise in a more organic, non-purposive way; and third, whether they reflect behavioral or discursive regularities. My goal is not to elaborate a general theory of non-treaty law. Rather, the more modest aim is to do some preliminary spadework concerning the varieties of non-treaty norms. II. The Nature of Norms In thinking about non-treaty norms, the starting point of our analysis is the fact of norm-governed behavior in international relations. In general, states grant immunity to foreign diplomats; they assert control over a particular territory and popula12 13

14 15

16

See generally Oscar Schachter, International Law in Theory and Practice 5055 (1991). See generally Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Dinah Shelton ed., 2000); Kal Raustiala, Form and Substance in International Agreements, 99 Am. J. Int’l L. 581, 586 (2005) (“There is no such thing as ‘soft law.’”). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 29 (July 8). Trail Smelter (U.S. v. Can.), 3 R. Int’l Arb. Awards 1905, 1965 (Ad Hoc Arbitral Tribunal, 1941) (stating that “under principles of international law, … no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another …, when the case is of serious consequence and the injury is established by clear and convincing evidence”) (emphasis added). As the New Haven School emphasizes, the need to rethink our basic categories applies not only to non-treaty norms, but to international law more generally. For a very interesting recent effort to rethink the sources of international law, see Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 Iowa L. Rev. 65 (2007).

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

tion; they refrain from exercising law enforcement functions in the territory of other states; and they do not interfere with foreign vessels on the high seas. These represent significant regularities of behavior amidst the extremely complex and often seemingly ad hoc interactions among states. Non-treaty rules are a species of norms, so initially we need to understand the more general concept of a norm and of norm-governed behavior. A norm is a community standard that aims to guide or influence behavior—traditionally, the behavior of states, but also, more recently, the behavior of international institutions and private actors. The duty to prevent transboundary harm aims to guide the behavior of states; the Marine Stewardship Council’s standards for sustainable fisheries aim to guide the behavior of fishermen; and the World Bank’s Operational Guidelines aim to influence how the Bank will conduct its lending operations. Norms create expectations about future conduct. But, in contrast to a behavioral regularity, such as drinking coffee every morning at breakfast, a norm does not merely predict future behavior—it seeks to guide behavior by providing a standard of appropriate conduct. The norm against high seas driftnet fishing creates an expectation about how states and fishermen ought to behave, not simply how they will in fact behave. A norm thus depends on actors having what H.L.A. Hart called an internal point of view, or critical reflective attitude, accepting the norm as a guide to their own conduct and as a basis for evaluating the actions of others.17 A common misconception is to equate acceptance with consent, but the two are not equivalent.18 Consent involves a conscious decision, often expressed through some kind of action such as signing a document or submitting an instrument of ratification. But norms can become internalized through a variety of social and psychological processes not involving any deliberate or even conscious decision. In writing this essay, I accept the rules of English grammar and word usage as guides, even though I have never consented to them (at least in any meaningful sense of the term) and may not even be able to articulate them clearly. Similarly, an observant Jew might never have consented to the rules of kashrut, yet still accept them as providing a reason for action. Acceptance simply means that an actor treats the norm as a norm, that is, as a guide to conduct. Expectations of appropriate conduct often differ widely among different actors in a society. A social norm emerges only when expectations become aligned among a community of actors. Even within a single society, there may be many such communities and hence many different normative systems that co-exist (or conflict) with one another. At the international level, traditional accounts of international law have tended to focus on the community of government officials who engage in state practice and who negotiate, sign, ratify, and implement treaties. As Professor Reisman’s work highlights, however, other communities of actors are also important, who may develop their own expectations of appropriate conduct: the “invisible college of inter-

17 18

See H.L.A. Hart, The Concept of Law 56-57 (2d ed. 1994). See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 121-22 (1991).

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national lawyers;”19 non-governmental and business actors, who in some cases have developed their own normative systems through codes of conduct; and that amorphous entity, civil society (and its equally amorphous corollary, international public opinion).20 III. Evidence of Non-Treaty Norms Assume that we are trying to identify the norms of non-treaty law. Like the lawyer visiting Penntown, our task is essentially a factual one: to determine what norms the members of a community accept as standards of behavior. But since norms are abstractions, which we cannot directly observe, we must instead rely on indirect evidence of their existence. The two types of evidence of a community’s norms are what the members of the community do and say. Although any given regularity of behavior may reflect mere habit or independent responses to a common stimulus (like people all putting up their umbrellas when it rains, to use a familiar example), the fact that behavior is regular at least suggests that it is rule-governed. What actors say—for example, in justification or criticism of actions that conform to or deviate from the general pattern of practice—provides additional evidence of the norms that they accept. Although many states still engage in torture, the fact no state claims the right to torture and all condemn it suggests the existence of a norm prohibiting torture. In discussions of customary law, deeds are sometimes equated with state practice and words with opinio juris. But both deeds and words are types of state practice, and both are relevant in trying to ascertain whether states accept a norm as a guide to their behavior—that is, whether they have the opinio juris that is constitutive of norms.21 Although actions and words are relevant in finding opinio juris, neither are fully reliable. On the one hand, a regular pattern of behavior suggests the presence of a norm, but may have other explanations that do not reflect any internal sense of obligation. The fact that I brush my teeth every evening before going to bed does not show that my behavior is norm-governed. Conversely, the absence of a regular pattern of behavior does not disprove the existence of a norm. Behavior is the product of many causal factors—interests, emotions, habits, external pressures, social relationships—of which norms are not always the strongest. The fact that tax fraud is rampant in some countries does not show the absence of a duty to pay taxes. A norm pushes action in one direction, but in any given case—or indeed, even in most cases—it may be outweighed by other influences.22 19 20 21

22

Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1977). See generally Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155 (2007). For an illuminating analysis of this issue, as well as many other aspects of customary international law, see Maurice H. Mendelson, The Formation of Customary International Law, 272 Recueil des Cours 155, 204-07 (1998). See Cohen, supra note 16, at 115.

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

Similarly, what states and other international actors say is not fully reliable either. On the one hand, a state may deliberately seek to mislead, opportunistically citing a norm that it does not itself accept, in order to criticize another state. On the other hand, the inability of states to articulate a norm does not show its absence. Opinio juris is sometimes portrayed as a psychological belief or conviction in the existence of a legal obligation. But the issue is not what states believe, but whether they in fact engage in rule-governed behavior. In some cases, they may do so without even being aware that they are following a rule.23 That is why, to understand the customary norms of a community, anthropologists do not rely merely on what the members of the community say; they observe how people act.24 IV. Directly- Versus Secondarily-Accepted Norms As H.L.A. Hart emphasized, norms can be accepted in two ways, either directly or because they satisfy a “secondary” rule of recognition (or, to use the terminology of international law, a “formal source”) that a community accepts as defining valid rules. This represents one important dimension along which non-treaty norms vary. Depending on whether a primary norm is accepted directly or indirectly, the process for identifying rules is quite different.25 For primary rules that are accepted directly, the inquiry is a factual one: What non-treaty rules do states and other international actors, in fact, treat as guides to conduct? Do actors manifest acceptance of a putative norm as a standard of conduct? Does the norm guide their behavior? Do they justify their behavior in terms of the putative rule, and criticize others for violating it? In contrast, for primary norms that are accepted because they conform to a secondary rule, the inquiry has both a factual and a legal component. First, we must identify the secondary rules—the formal sources—of the legal system, through the kind of “descriptive sociology” (to use Hart’s term)26 that we just outlined. This requires determining the secondary rules that are, in fact, accepted by a social group as defining valid rules– for example, that norms can be generated through majority voting, or by pronouncement of the Pope, or by consent. Having identified these formal

23

24

25 26

See Peter Winch, The Idea of a Social Science and Its Relation to Philosophy (1958); see also Hart, supra note 17, at 57 (“The internal aspect of rules is often misrepresented as a mere matter of ‘feelings’ in contrast to externally observable physical behavior. … But such feelings are neither necessary nor sufficient for the existence of a ‘binding’ rule.”). See James B. Murphy, Habit and Convention at the Foundation of Custom, in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives 53 (Amanda Perreau-Saussine & James B. Murphy eds., 2007). See generally Raphael M. Walden, Customary International Law: A Jurisprudential Analysis, 13 Isr. L. Rev. 86, 91 (1978). Hart, supra note 17, at v.

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sources, the task of identifying the primary rules then becomes a legal one, requiring us to determine which norms satisfy the accepted secondary rules.27 With respect to any norm, whether primary or secondary, we can ask the causal question: Why do states accept these rules? What is the explanatory role of self-interest, moral beliefs, power, habit, mimicry, and so forth? We can also ask the normative question: Is a rule good or bad, based on justice, efficiency, or whatever evaluative criteria we choose to apply? But only with respect to norms that are accepted indirectly, because they conform to a secondary rule of recognition, can we ask the legal question: What is their formal source? Are they “valid” legal rules?28 Whenever a community accepts a secondary rule of recognition, this creates the possibility that the norms that actors accept indirectly through the secondary rule may depart from the rules that they in fact treat as guides to conduct. That is why the lawyer going to Penntown must study not only the formal laws, but the entire process of authoritative decision. For example, members of a community who, in principle, accept statutes or judicial decisions as a formal source of legal obligation may sometimes follow different rules in practice. The norm that they directly accept as a guide to conduct may differ from the norm that they accept indirectly because it results from the legislative or adjudicative process. For example, in the United States, although the official speed limit may be 45 or 55 or 65 miles per hour, most drivers in fact believe that they can drive 5-10 miles faster without violating the law. In such cases, there is a divergence between what Professor Reisman refers to as the “myth system” of a community—that is, the rules with a recognized formal source—and its “operational code”—that is, the norms actually guiding behavior.29 With respect to many normative systems, it is easy to determine whether rules are accepted directly or because they satisfy a secondary rule of recognition. Rules of fashion, etiquette, and word usage, for example, do not have a formal source. They are not accepted because they conform to an accepted norm-making process. Instead, they exist simply because a community of actors in fact treats them as guides to conduct. In contrast, legislation in a constitutional democracy has a formal source—it is the product of an accepted secondary lawmaking process. That is why, with respect to statutes, we must always ask, is a statutory rule merely part of the law’s myth system (because it was generated in accordance with the accepted legislative process) or is it, in fact, part of a community’s operational code? Treaties, like statutes, clearly fall into the second of Hart’s two categories: states accept them as a formal source of law. By explicitly consenting to a treaty through

27

28 29

Some writers refer to these two categories as “fact-created” norms and “law-created” norms, see, e.g., Walden, supra note 25, at 90-91, although even law-based rules ultimately rest on the fact of acceptance of the secondary rule by a social group. See Hart, supra note 17, at 98-99 (issue of “validity” arises only if there is a system of secondary rules). Reisman, supra note 5, at 15-36.

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

signature, ratification or accession, a state agrees to be bound. Whether non-treaty norms fall into Hart’s first or second category, however, is less clear.30 On one view, Article 38 of the International Court of Justice Statute encapsulates the accepted secondary rules of recognition for international law, which include not only treaty-making, but also customary law and general principles. This is certainly true for one important community of international actors, namely the International Court of Justice, which Article 38 governs. In deciding cases, the ICJ is supposed to apply customary law and general principles as well as treaties. And we can compare this myth system with the way the ICJ actually decides cases—its operational code— which reflects a norm of precedent. Does Article 38 also articulate a secondary rule of recognition that states and other international actors accept with respect to their own conduct? Do members of the international community treat custom and general principles as formal sources of international norms? Ultimately, this is a factual question, which depends on the practice of states and other international actors. The orthodox account of customary international law answers yes: it views custom as a formal source of non-treaty law. According to this approach, customary international law is not simply a description of the norms that actually guide the behavior of states; it is a formal source of law, like legislation or treaty-making. As a result, a norm can be a valid rule of customary law because it conforms to the secondary rule of recognition, even though many (perhaps even most) states do not accept it as a guide to their conduct. Circa 1980, the rule requiring states to provide prompt, adequate, and effective compensation in expropriation cases arguably fell into this category. There are different ways to articulate the rule of recognition for customary law, but most concern a norm’s pedigree. According to the usual account, the customary lawmaking process involves two elements: consistent state practice and opinio juris. When many states behave in a consistent way over a long period of time, and when this consistent, long-standing practice manifests a sense of legal obligation, then the outputs of this lawmaking process are accepted by the international legal community as valid customary rules, with which states are expected to comply. Although scholars disagree about the precise content of the accepted rule of customary lawmaking—for example, the relative importance of state practice and opinio juris in the formation of

30

For a very interesting discussion of this issue with respect to custom, see Walden, supra note 25. Walden concludes that “custom is a method of law-making, and … like other methods of law-making, it involves the existence of secondary as well as primary rules.” Id. at 92.

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customary law;31 the degree to which state practice must be longstanding,32 whether opinio juris must be separately proven or can be inferred from state practice, and so forth—they agree that the test of whether, say, the precautionary principle represents customary law is whether it conforms to the accepted secondary rule governing customary lawmaking. If there is a dispute, we can provide legal reasons, based on the secondary rule, as to why an asserted norm should be regarded as customary law. In many cases, however, non-treaty norms seem to rest on direct acceptance by states rather than on a secondary rule about customary law. When non-treaty rules emerge through a diffuse process of social interaction, acceptance may itself be an unconscious, non-deliberate process, not based on any secondary lawmaking rule. Just as it would be a mistake to ask—what is the secondary rule that creates a valid norm of fashion or etiquette?—it would be a mistake to analyze this kind of nontreaty law in terms of secondary rules. This is true, I think, of generally accepted principles of international law such as the prohibition on transboundary pollution or the prohibition on torture. States accept these non-treaty norms not because the norms conform to a secondary rule of recognition, but because of the norms’ substantive content, which states accept as standards of appropriate conduct. As Koskenniemi observed of basic human rights norms, they do not depend on satisfying the orthodox tests of customary international law, but on “an anterior—though at least in some respects largely shared—criterion of what is right and good for human life.”33 Conceptualizing custom as a factual description of the norms that actually regulate state behavior as opposed to a formal source of international law may seem like a distinction without a difference, since in either case the test for identifying custom is substantially the same. If customary rules are simply the rules that states, in fact, accept as standards of conduct, then consistent state practice coupled with evidence of opinio juris would demonstrate the existence of a norm. But these two elements are, of course, also central to theories that view customary law as a formal source, created by a secondary lawmaking rule. Thus, if we find consistent state practice accompanied by opinio juris, it is hard to distinguish whether these elements simply represent factual evidence of an existing customary rule, or have the legal effect of creating (or changing) customary law. Nevertheless, the two accounts of custom differ in subtle ways. Consider, for example, the role of state practice. On the descriptive view of custom, regular state practice is evidence of a customary norm, and it may be part of the causal story about the origin of a norm. (As one sociologist explains, “When many people engage in 31

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Compare, e.g., Lazare Kopelmanas, Custom as a Means of the Creation of International Law, 18 Brit. Y.B. Int’l L. 127 (1937) (emphasizing state practice), with Andrew T. Guzman, How International Law Works: A Rational Choice Theory 194-201 (2008) (emphasizing opinio juris), and Frederick L. Kirgis, Jr., Custom on a Sliding Scale, 81 Am. J. Int’l L. 146 (1987). See, e.g., Bin Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law?, 5 Indian J. Int’l L. 23 (1965). Martti Koskenniemi, The Pull of the Mainstream, 88 Mich. L. Rev. 1946, 1946-47 (1990).

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

the same behavior, that behavior comes to be associated with a sense of oughtness.”34 What is normal in a descriptive sense tends to become seen as normal in an evaluative sense.)35 But state practice does not provide a legal reason to accept a norm, as is true if custom is a formal source of law. Thus, if a state rejected a purported nontreaty norm—say, the precautionary principle—one could try to persuade the state to accept the rule on substantive grounds—for example, justice or economic efficiency or self-interest. Or one could argue that since other states accept the rule, a state would incur reputational costs by not doing so as well. But one could not argue that the rule is a rule of international law because it has a legal source. The fact that other states generally accept the rule might cause the recalcitrant state to accept the rule, but it would not provide a reason to accept the rule. In contrast, if non-treaty law has a formal source, we could make legal arguments that the precautionary principle satisfies this secondary rule of recognition. Which theory of non-treaty law is more descriptively accurate? To what degree are non-treaty norms accepted directly and to what degree are they created through an accepted lawmaking process? Can we ask only the factual question: Is a purported norm actually accepted by international actors? Or can we also ask the legal question: Is a norm a “valid” rule of international law under an accepted secondary rule? As Professor Reisman’s pluralistic approach suggests, the answer is not either-or. Non-treaty law is a heterogeneous phenomenon, which operates differently among different communities of actors—in some cases, through direct acceptance; in others, through a secondary lawmaking rule. To the extent that the traditional account of custom represents the prevailing view among the “invisible college of international lawyers,”36 then one would expect it to accurately describe the practice of this community. But it is more questionable whether political decision-makers within states accept a secondary rule of customary lawmaking, the products of which they recognize as law.37 In any event, recognizing that customary law can be based on direct acceptance, not just on a secondary rule, helps solve one of the enduring paradoxes of customary law: namely, how states can act out of a sense of legal obligation in order to create a new customary norm, if the legal obligation does not exist until they have acted. The answer is that the early adopters of an emerging non-treaty norm accept the norm directly, not because of a (mistaken) belief that the norm is the product of a secondary

34 35

36 37

Christine Horne, Sociological Perspectives on the Emergence of Social Norms, in Social Norms 3 (Michael Hechter & Karl-Dieter Opp eds., 2001). What converts a general practice into a legal norm, however, is not the amount or the consistency of the practice, but whether relevant actors come to accept the norm as reflecting a legal obligation—that is, whether opinio juris develops. Schachter, supra note 19. I once heard the State Department’s Legal Adviser observe that he never made an argument to the Secretary of State based on customary international law, because the argument would not carry any weight. And this was during a Democratic Administration that was, in theory, committed to the rule of international law!

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lawmaking process. Subsequent adopters may accept the norm because they think it is a legal obligation, but the early adopters simply accept it as a legal obligation. V. Purposive Versus Non-Purposive Norms How do norms emerge that guide behavior? One possibility is through negotiations, in which actors put forward their preferred rules in a purposive manner and seek to reach agreement. This describes the process of treaty formation. I is also the process through which U.N. resolution are developed, such as the resolutions banning high seas driftnet fishing, which created an expectation against large-scale pelagic driftnet fishing. At the other extreme, expectations of conduct can emerge through a decentralized, informal, often unconscious process of social interaction, in which it is difficult if not impossible to identify the “author” of a given rule. Exactly how rules emerge in this manner is a bit mystifying. But the process clearly takes place, in fact quite commonly. Language provides a good illustration. Every time we speak, we apply a complex (and, in most cases, quite precise) set of semantic and syntactic rules, governing how words are used and combined. These rules are not legislated or enforced by any centralized body. Instead, they emerge and evolve through the regular practice of language users, and are enforced through a diffuse set of social sanctions. Like other social norms, they are observable facts, which need to be identified and learned in order to participate effectively in society. This distinction between purposive and organically emergent norms represents a second dimension along which non-treaty norms vary. In what might be regarded as its ideal typical form, customary law emerges in a diffuse, non-deliberate manner, without any identifiable author.38 As John Finnis explains, “custom is not made in the full sense of ‘made’—for making is something that someone can set himself to do, but no one sets himself … to make a custom.”39 The customary lawmaking process is sometimes referred to as “spontaneous,” but it might better be characterized as unplanned or unconscious, since in contrast to truly spontaneous phenomena, it has antecedent causes, just not ones involving self-conscious, purposive behavior. In contrast to this ideal typical form of customary law, much non-treaty law develops in a quite different manner—through a process involving identifiable authors acting in a purposive, deliberate way, making claims and responding to claims by others.40 The continental shelf doctrine, for example, was articulated by the United 38

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See, e.g., Hans Kelsen, Principles of International Law 441 (2d ed. 1967) (“Legislation is conscious and deliberate law-making …; custom is unintentional and unconscious law-making.”), quoted in Walden, supra note 25, at 92. John Finnis, Natural Law and Natural Rights 277 (1980). This process of claim and response was central to the New Haven School’s understanding of the international legal process, including both treaty and non-treaty norms. See, e.g., Myres S. McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, 49 Am. J. Int’l L. 356, 357 (1955) (describing international law as “a process of continuous interaction, of continuous demand and response, in which the decision-makers of par-

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

States in the Truman Proclamation. Similarly, the standard of “prompt, adequate and effective compensation” in expropriation cases was set forth in the Hull Doctrine. In cases like these, non-treaty rules—far from being authorless—result from the activities of what political scientists refer to as “norm entrepreneurs,”41 who advance new norms and push others to accept them. VI. Behavioral Versus Discursive Norms A third dimension along which non-treaty norms vary is the degree to which they reflect what states do as opposed to what states say—or, to put it differently, the degree that they represent regularities of behavior vs. speech. According to the orthodox theory of customary international law, customary norms are generated by behavioral regularities, which the norms in turn reinforce. An actor might violate a norm because it makes a mistake about what the norm requires or because the norm is overridden by other considerations. But these mistakes and violations represent the exception rather than the rule. If they became prevalent, this would suggest that the norm was breaking down and was no longer generally accepted by the group as a standard of behavior. Many non-treaty norms, however, do not reflect behavioral regularities. The proverbial Martian coming to earth would not be able to determine these norms through induction, by observing what international actors do. For example, the duty to prevent transboundary pollution—often considered the foundation of international environmental law—is not reflected in the actual behavior of states. Although I am not aware of any systematic empirical study of this issue, transboundary pollution seems much more the rule than the exception in interstate relations. Pollutants are carried across most international borders continuously through the air and by rivers and ocean currents. Even dramatic examples of transboundary pollution, such as the Chernobyl accident, go unchallenged legally. Instead, the duty to prevent transboundary pollution is better seen as an attitudinal regularity, reflected in the way states (and other international actors) talk to one another. This is apparent from the methodology used to identify it. In discussing the duty, writers generally begin by citing Trail Smelter,42 which after more than fifty years is still the only case in which a state was held internationally responsible for causing transboundary environmental harm. This is followed by a citation to Principle 21 of the Stockholm Declaration, now joined by the reiteration of this principle (very slightly modified) in the 1992 Rio Declaration. For good measure, references are also usually included to the OECD Council Recommendation Concerning Trans-

41 42

ticular nation states unilaterally put forward claims of the most diverse and conflicting character … and in which other decision-makers … weigh and appraise these competing claims”). Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 895-98 (1998). Trail Smelter (U.S. v. Can.), 3 R. Int’l Arb. Awards 1905, 1965 (Ad Hoc Arbitral Tribunal, 1941).

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frontier Pollution, U.N. General Assembly resolutions, the International Law Association’s Montreal Rules of International Law Applicable to Transfrontier Pollution, the International Law Commission’s Draft Articles on the Prevention of Transboundary Harm, and various treaties, as well as to the numerous international law scholars who have asserted that customary law imposes a duty to prevent transboundary environmental harm.43 What do all of these references establish? Certainly not a behavioral regularity. Rather, they establish—at most—how states and other international actors speak to one another. They provide evidence of the evaluative standards that states and nonstate actors use to justify their actions and to criticize the actions of others. The same is true of many other norms of non-treaty law: in writing about them, international lawyers base their arguments on what states and other international actors say, rather than what states do. They examine both written and oral texts, produced in some cases by states but often by non-state actors such as courts and arbitral panels,44 intergovernmental and non-governmental organizations, and legal scholars. Their methodology is to collate these texts, in order to see whether a critical mass of authority exists in support of a given norm. At most, scholars cite one or two celebrated incidents, but provide little or no analysis of whether these incidents typify state behavior. For example, in its study of the duty to notify other states of transboundary risks, the International Law Association (ILA) cited only seven examples of state practice,45 out of the presumably countless instances in which states have undertaken activities with a significant risk of transboundary harm. Instead, the ILA report emphasized the various resolutions and treaties in which the putative customary norm appeared.46 Writers often persist in characterizing these non-treaty norms as “customary,” the catch-all term generally applied to any non-treaty norm, but it would be more ac43

44

45

46

See, e.g., Patricia Birnie & Alan Boyle, International Law and the Environment 104-09 (2d ed. 2002). Dupuy, for example, cites the Trail Smelter and Corfu Channel cases, Stockholm Principle 21, several U.N. General Assembly resolutions, OECD Council recommendations, the Helsinki Final Act, and the UNEP Draft Principles of Conduct on Shared Natural Resources. Pierre-Marie Dupuy, Overview of the Existing Customary Legal Regime Regarding International Pollution, in International Law and Pollution 61, 64-65 (Daniel B. Magraw ed., 1991). As far as “concrete cases” of state practice are concerned, however, he notes that states “seem partly to ignore” the rule. Id. at 66. See Patrick M. Norton, A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation, 85 Am. J. Int’l L. 474, 497-98 (1991) (“Virtually all of the recent opinions [of the Iran-US Claims Tribunal] have placed their principal reliance on judicial and arbitral precedents.”). See Daniel G. Partan, The “Duty to Inform” in International Environmental Law, 6 B.U. Int’l L.J. 43, 51 (1988). Three of these examples were based on treaties. Even with respect to the four instances of notification not based on treaty, whether they were made out of a sense of international legal obligation is, according to Partan, “problematical” and “entirely speculative.” Id. at 54. See id. at 51-53.

8 Daniel Bodansky, Prologue to a Theory of Non-Treaty Norms

curate to describe them as general principles of law—or, as one writer has suggested, “declarative law.”47 They articulate collective aspirations that play an important role over the longer term, framing both discussions about the development of international law and negotiations to develop more precise norms. But they have a much more limited influence in guiding the behavior of states.48 VII. Conclusions Like other recent efforts to rethink the sources of international law, the approach to non-treaty norms that I suggest here departs in important respects from more orthodox accounts: – It views opinio juris as the single element that is constitutive of legal norms, both treaty and non-treaty.49 – It understands opinio juris not as a psychological belief or as equivalent to consent, but rather as the internal aspect of rules emphasized by Hart. – It recognizes that non-treaty norms can emerge in multiple ways, through a purposive or unplanned process, and involving direct acceptance or a secondary lawmaking rule. These observations on non-treaty norms are, of course, merely the prologue to a theory of non-treaty law, and do not address many of the most interesting normative and explanatory questions. What account of non-treaty law best “advances the cause of global justice,” in the phrase of John Tasioulas?50 Is non-treaty law a legitimate basis of obligation? What causal factors account for the emergence of non-treaty norms? Why do actors develop the necessary opinio juris? And, in what ways, and to what extent, do non-treaty norms influence behavior? Although the classificatory scheme I suggest does not answer these questions, it puts us in a better position to do so, by identifying important dimensions along which non-treaty norms vary. Consider, for example, the distinction between directly-accepted norms and those that are accepted because they are the product of an (accepted) secondary rule. If we view customary international law as a single phenomenon, the tendency is to develop a single explanatory account. But the instrumental, normative, social, and psychological factors involved in an actor’s direct acceptance of a primary rule are not all likely to apply to the acceptance of secondary rules. So we need different explanatory accounts for the two types of non-treaty norms. 47 48

49 50

Hiram E. Chodosh, Neither Treaty Nor Custom: The Emergence of Declarative International Law, 26 Tex. Int’l L.J. 87 (1991). These attitudinal regularities could be considered a “myth system,” but in a different sense than the one discussed earlier, which concerned rules that satisfy sources theory but that do not in fact guide behavior. For an earlier analysis extending the “single-element” perspective to all of international law, not simply custom, see Cohen, supra note 16. John Tasioulas, Customary International Law and the Quest for Global Justice, in Nature of Customary Law, supra note 24, at 307.

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The same is true of norms that arise through a purposive process versus organically. For the former, the types of functionalist explanations currently in vogue among rational choice theorists seem plausible, since they depend on a simple causal mechanism—that is, rational actors pursuing their interests. It is no surprise, for example, that the United States advanced the Truman Proclamation, which furthered its interest in having exclusive jurisdiction and control over its continental shelf resources. When international norms emerge through more diffuse social processes, however, identifying the causal mechanism that would produce a functional result becomes more difficult (although, as Darwin’s theory of natural selection showed, rational design does not require a rational designer).51 Finally, in trying to explain how and why international norms influence behavior, the distinctions between directly and indirectly accepted norms, organic and purposive norms, and behavioral and attitudinal norms seem a better starting point than the traditional distinction between customary law and general principles. As Professor Reisman has always emphasized, the value of legal theory is ultimately instrumental. Does it help us better understand the international legal process, so that we are better able to achieve our values? The classificatory approach to nontreaty norms sketched here is at best only a first step towards the more systematic appraisal of non-treaty norms.

51

See, e.g., Robert Axelrod, The Evolution of Cooperation 73-87 (1984) (using game theory to explain the development of informal rules of behavior in trench warfare during World War I). See generally Robert C. Ellickson, The Evolution of Social Norms: A Perspective from the Legal Academy, in Social Norms, supra note 34, at 35.

Chapter 9 How Nongovernmental Actors Vitalize International Law Steve Charnovitz

In an important essay published a decade ago in honor of the 50th anniversary of the Universal Declaration of Human Rights (UDHR), Michael Reisman calls attention to the “anterior processes” of “private initiatives” that “precede formal law-making,” and “shape the political environment.”1 Reisman begins his essay with this remark: “A moment’s reflection should dispel the notion that legislation originates, transpires and concludes in the legislature.”2 His essay then guides the reader through the fascinating history of private initiative that pointed to the need for and promoted the adoption of what became the UDHR in 1948. Among the private initiatives detailed and analyzed by Reisman are projects undertaken by the Institut de Droit International, H.G. Wells, Quincy Wright, the Universities Committee on Post-War International Problems, Hersch Lauterpacht, the National Peace Conference, the American Jewish Committee, the Catholic Association for International Peace, the Commission to Study the Organization of Peace, the American Federal of Labor, and the International Council of Women. He explains: A large number of individuals, operating on their own behalf and through non-governmental organizations, played an important role in reinforcing the demand for a more effective

1

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W. Michael Reisman, Private International Declaration Initiatives, in La Déclaration universelle des droits de l’homme 1948-98: Avenir d’un idéal commun 79, 79-80 (1999). For background on the UDHR, see Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, 25 Brook. J. Int’l L. 17 (1999). For the UDHR, see G.A. Res. 217A, at 71, U.N. Doc. A/810 (Dec. 10, 1948). Reisman, supra note 1, at 79; cf. Methanex Corp. v. United States, Final Award of the Tribunal on Jurisdiction and Merits, Part III, Chapter B, ¶ 46, 44 I.L.M. 1345, 1436 (NAFTA Chapter Eleven Arbitral Tribunal 2005), available at http://www.state.gov/documents/ organization/51052.pdf (“Legislation in democratic systems involves, by its nature, participation by a wide spectrum of private individuals and interest groups in addition to the members of the legislature and the executive, insofar as its endorsement is also necessary for a bill to become law.”). Reisman was appointed to the Tribunal in October 2002.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 135-162.

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regime, setting out the contours of what such a regime might be and drafting and then agitating for the inclusion of precise language in such a regime.3

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Discussing the activities of the non-governmental organizations (NGOs) at the UN in 1947-48, Reisman concluded that while the diplomats and the United Nations Secretariat may have felt, at times, that the private initiatives and often intense pressure of the nongovernmental organizations, which had been so critical in the initiation of this extraordinary enterprise, were not helping in the crafting of the compromises the diplomats believed necessary for the completion of the process. But the exasperated diplomats were wrong. The unrelenting pressure from those same non-governmental organizations was an essential, indeed, indispensable part of the making of the Universal Declaration at every phase.4

Furthermore, he notes that while the enactment of the UDHR was intergovernmental, the intelligence and promotion functions leading up to that enactment “were almost entirely private international initiatives, indeed had to be as they aimed at limiting government power. That is hardly likely to be an initiative that government officials undertake.”5 My contribution to this volume in honor of Professor Reisman examines this thought—namely, that an initiative to limit government power is not likely to emanate from governments and is instead more likely to come from interested private actors. My essay will explore how and why nongovernmental actors vitalize international law. By the term “law,” I agree with the New Haven School, which “defines law as a process of decision that is both authoritative and controlling.”6 This is especially true on the so-called international plane where it would be impossible to describe law as communications from a sovereign. In my view, if the process of decisionmaking is “law” in its dynamic form, then the individual decisions are also law. So I am comfortable with the definition in the Restatement that describes “[i]nternational law” as the “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”7

3 4 5 6 7

Reisman, supra note 1, at 81. Id. at 115. Id. at 80 (internal footnote omitted). The footnote points out that Professor René Cassin’s account of the genesis of the UDHR briefly explores the role of private endeavors. W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 576 (2007). Restatement (Third) of the Foreign Relations Law of the United States § 101 (1987).

9 Steve Charnovitz, How Nongovernmental Actors Vitalize International Law

Intellectual Influences on Reisman Reisman’s scholarship has always been characterized by attention to the role of participants in international lawmaking and by a recognition that there are many relevant actors besides nation-states. In adopting that approach, Reisman was influenced by the writings of and his collaboration with Professors Myres S. McDougal and Harold D. Lasswell at Yale. After receiving an LLB degree from Hebrew University, Reisman came to study at Yale Law School in 1963. An appreciation for the role of individuals, private associations and NGOs as functional participants is a prominent feature of the Jurisprudence of Lasswell and McDougal.8 In an essay on NGOs I wrote in 2006 in honor of the centennial of the American Journal of International Law (AJIL), I noted that the first use of the term “non-governmental organization” in international law scholarship may have been in an article by Lasswell and McDougal in 1943.9 In 1955, McDougal wrote an editorial comment about the new edition of Professor Hans J. Morgenthau’s Politics Among Nations.10 McDougal criticized Morgenthau’s realist perspective as being too narrow. Noting that Morgenthau did discuss the fractionalization of the nation state by groups such as intergovernmental organizations, pressure groups, and private associations, McDougal argued that the new book’s “emphasis is still largely upon the nation state”11 and that the book minimizes “the degree to which today ‘community’ or ‘society’ is in fact trans-national.”12 In 1949, McDougal and collaborator Gertrude C.K. Leighton wrote an article on The Rights of Man in the World Community and opined that “the most critical challenge of our time is the task of devising a world law appropriate for all the new participants, such as international governmental organizations, transnational political parties, transnational private associations (cartels), and even the humble individual human being.”13 In his essay on the UDHR, Reisman discusses the political and legal processes that precede formal lawmaking in modern democratic systems. In particular, he takes 8

9

10 11 12 13

See, e.g., 1 Harold D. Lasswell & Myres S. McDougal, Jurisprudence for a Free Society 27, 188-89 (1992); Douglas M. Johnston, The Historical Foundations of World Order 117 (2008) (“Fourteen years after Lasswell’s death their blueprint for a new, systematically re-configured, jurisprudence was produced.” (internal citation omitted)). A student of Lasswell and McDougal from the late 1950s has outlined Jurisprudence in verse. Charles W.T. Stephenson, Transparency Cantos: Values for Human Dignity: Lasswell and McDougal (2008). Steve Charnovitz, Nongovernmental Organizations and International Law, 100 Am. J. Int’l L. 348, 351 n.21 (2006) (taking note of the article on “Legal Education and Public Policy”). Myres S. McDougal, Editorial Comment, The Realist Theory in Pyrrhic Victory, 49 Am. J. Int’l L. 376 (1955). Id. at 377. Id. at 378. Myres S. McDougal & Gertrude C. K. Leighton, The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action, 59 Yale L.J. 60, 84 (1949).

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note of two distinct decision functions, intelligence and promotion. The intelligence function involves the gathering and assembly of data and the refinement of the problem and the proposed solution. The promotion function is the agitation and persuasion used to seek a legal solution, for example, stimulating formal lawmaking via a legal instrument.14 Reisman notes that because many interest groups are involved, “the instrument that emerges is likely to reflect many of their concerns, indeed to metamorphose into something quite different from the initial promotion.”15 Reisman’s sense16 of the complexity of the lawmaking process came principally from McDougal and Lasswell and their phase analysis applied to what they called the promotion function.17 A preface to the chapters on constitutive process in McDougal and Lasswell’s Jurisprudence explains that “[i]n later work, designed for inquiry about international law in a global community, the reference of ‘constitutive process’ was made sufficiently comprehensive to include the whole process of decision by which authoritative decision is established and maintained in a community.”18 The “later work” refers, in particular, to two essays by McDougal, Lasswell, and Reisman. In the first essay, written in 1967, the three co-authors present a comprehensive analysis of the world constitutive process. In the portion of their essay dealing with trends in decision, the authors specifically discuss trends in participation and look at pressure groups, private associations, and individuals.19 This essay also famously divides the decision process into seven phases (or functions), known as intelligence, promotion, prescription, invocation, application, termination, and appraising.20 In the second essay on Theories About International Law, written in 1968, the three co-authors pre14

15 16 17 18 19

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Promotional efforts include lobbying a government to ratify international conventions. For example, as Professor Franck has noted, “In their unbounded enthusiasm for the U.N., the Senators [considering U.S. ratification of the U.N. Charter] were undoubtedly influenced by an unprecedented coalition of private organizations and public interest groups united to exert pressure for U.S. participation.” Thomas M. Franck, Great Expectations: An Exploration of the Exaggerated Hopes Aroused by the U.S. Campaign for Ratification of the U.N. Charter, in Contemporary Issues in International Law: Essays in Honor of Louis B. Sohn 291, 295 (T. Buergenthal ed., 1984). Reisman, supra note 1, at 79. E-mail from Michael Reisman to Steve Charnovitz (Feb. 21, 2009) (on file with author). See 2 Lasswell & McDougal, supra note 8, at 1193-202. Id. at 1129 n.1. Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision (pts. 1 & 2), 19 J. Legal Educ. 253, 403 (1967), reprinted with revision in Myres S. McDougal & W. Michael Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective 191 (1981). One European scholar has written that “McDougal’s and Harold Lasswell’s Yale School was only the most visible but perhaps among the least influential of the new approaches that grew up in the United States in the 1950s and 1960s.” Martti Koskenniemi, The Gentle Civilizer of Nations 475 (2001). The seven functions originated with Lasswell in 1956 and were not at that time directed to the international arena. Lasswell was a political scientist and proposed the seven functions to replace the tripartite organic distinction of legislative, executive, and judicial. W.

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sent and appraise several frames or viewpoints about international law and identify each with their principal proponents.21 In 1973, the three authors again collaborated to write an article about the intelligence function in world public order.22 This article explicitly discussed the role of interest groups, private associations, and individuals in the intelligence function.23 In 1976, Reisman and Eisuke Suzuki co-authored an article on “recognition and social change” where they discussed the role of “aspirants” who are “groups which seek to participate in authoritative processes of a community with the aim of achieving influence or lawful control.”24 NGOs are one type of aspirant identified by Reisman and Suzuki, and they note that when NGOs protest government interference with political parties, such protests may not vindicate the position of aspirants, but can succeed in having “sustained a general international demand for the continuation of this norm.”25 Furthermore, Reisman and Suzuki postulate that “[t]he optimum international policy would appear to be the strongest and most explicit support for claims for recognition as aspirants.”26 The Jurisprudence continued to be refined after Lasswell passed away. In 1980, McDougal and Reisman co-authored an article on the prescribing function that

21 22

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Michael Reisman, Luncheon Address, International Lawmaking: A Process of Communication, 75 Am. Soc’y Int’l L. Proc. 101, 105 (1981). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188 (1968). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The Intelligence Function and World Public Order, 46 Temp. L.Q. 365 (1973), reprinted in McDougal & Reisman, supra note 19, at 287. Id. at 304-07; see Laurence Boisson de Chazournes, New Technologies, the Precautionary Principle, and Public Participation, in New Technologies and Human Rights 161 (Thérèse Murphy ed., 2009) (noting the need for broad participation in decisions applying the precautionary principle). W. Michael Reisman & Eisuke Suzuki, Recognition and Social Change in International Law: A Prologue for Decisionmaking, in Toward World Order and Human Dignity: Essays in Honor of Myres S. McDougal 403, 424 (W. Michael Reisman & Burns H. Weston eds., 1976); see also Myres S. McDougal, Harold D. Lasswell & Lung-chu Chen, Human Rights and World Public Order 102 (1980) (“Almost every measure that has a recognized relation to human dignity has been, or is currently, a target of pressure group action.”). Reisman & Suzuki, supra note 24, at 425. The role of NGOs in sustaining demands for international norms has been discussed creatively and analytically in scholarship by political scientists looking at “norm building.” See the important study by Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 896 (1998). Recently, Finnemore and Sikkink’s work on norm entrepreneurs has been used as a framework to review and typologize the contributions of Nobel Peace prize laureates, many of whom were NGOs or NGO leaders. Roger P. Alford, The Nobel Effect: Nobel Peace Prize Laureates as International Norm Entrepreneurs, 49 Va. J. Int’l L. 61 (2008). Reisman & Suzuki, supra note 24, at 425.

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sought to further develop the theory of international prescription involving policy content, an authority signal, and a control intention. In a lecture in 1981, Reisman explained that viewing international lawmaking as a process of communication in which these three coaxial messages are modulated would enable the scholar and practitioner “to make judgments about whether certain communications are law or are deficient in some significant way.”27 In 1988, Reisman, McDougal, and Andrew R. Willard described the world community as a “planetary social process,” and they took note of the role of transnational pressure groups and transnational private associations oriented toward values other than power. With respect to the pressure groups, the authors pointed out that such “organizations often play a decisive role in the policies of parties, governments, and intergovernmental organizations.”28 With respect to the associations, the authors predicted that the “effect of these types of associations on value shaping and sharing will probably increase, especially if the transnational variety, mode, and number of channels for communication continue to multiply and remain accessible to individuals with diverse and parallel perspectives.”29 The authors made that prediction a few years before the rapid expansion of NGO communication facilitated by E-mail and the world wide web. In 1997, following Reisman’s suggestion, I wrote up how NGOs engaged in all seven decision functions.30 I wish I had been aware of the excellent article by Jerry Shestack discussing several categories of activities carried out by human rights NGOs.31 Shestack’s article is contained in a 1978 Festschrift for McDougal that I had studied in preparing my essay for this volume. 27 28

29 30

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Reisman, supra note 20, at 119. Myres S. McDougal, W. Michael Reisman & Andrew R. Willard, The World Community: A Planetary Social Process, 21 U.C. Davis L. Rev. 807, 824 (1988); see also Janet Koven Levit, Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law, 32 Yale J. Int’l L. 393, 409 (2007) (defining “bottom-up international lawmaking” as consisting of “relatively spontaneous, unchoreographed interactions among private parties, mid-level bureaucrats, and NGOs” that “spark a process which ultimately produces ‘law’”). Hari Osofsky has recently refined the inquiry regarding the planetary social process to explicitly incorporate geography into the New Haven School frame. Hari M. Osofsky, A Law and Geography Perspective on the New Haven School, 32 Yale J. Int’l L. 421 (2007). McDougal et al., supra note 28, at 825. Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Mich. J. Int’l L. 183, 271-74 (1997). Reisman had written in 1971 that “[t]he role of nongovernmental organizations of national and transnational scope in all international decision functions remains relatively unexplored.” W. Michael Reisman, Sanctions and Enforcement, in 3 The Future of the International Legal Order 273, 316 (Cyril E. Black & Richard A. Falk eds., 1971), reprinted in McDougal & Reisman, supra note 19, at 381, 419. Jerome J. Shestack, Sisyphus Endures: The International Human Rights NGO, 24 N.Y.L. Sch. L. Rev. 89, 96, 120 (1978). The categories he discusses are: consultation, education, mediation, participation in government action, catalyst to government action, restraining government action, and monitoring.

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In scholarship published after his 1998 essay on the UDHR, Reisman elaborated his views on participants in the international arena. At a conference on Developments of International Law in Treaty Making, Reisman explained: More than 50 years ago, Myres McDougal and his colleagues dismissed the “states as subjects” approach and proposed the then radical idea that, for purposes of explaining why past decisions had been taken the way they were, trying to predict future decisions or trying to influence the course of future decisions, the reality of international law had to be conceived of as a process of decision in which not only states, but a much wider range of actors participated: those actors, or “participants,” as McDougal called them, included national and international officials, the elites of non-governmental organizations running the gamut from those concerned with wealth through to those concerned with religious rectitude, transnational business entities, gangs and terrorists, and individuals.32

He also pointed out that “by placing the word ‘decision’ under magnification” through the seven functions, it became “easy to see how each of the categories of actors or participants other than states played (or could play) some role in the various component functions of international decision.”33 Thus, the functional analytical terms became normative in being “empowering for non-state actors in that they indicated to all those to whom we now refer as ‘civil society’ how they could enhance their influence by finding niches in critical decision functions which would allow them to shape prescriptions incorporating their preferred policies.”34 Although Reisman was heavily influenced by McDougal and Lasswell, one should take note of an earlier influence on Reisman from his days as a graduate student at Hebrew University studying with Professor Nathan Feinberg. Feinberg had served as the Secretary of the Committee of Jewish Delegations in Paris in the early 1920s and was a representative of the World Zionist Congress during the interwar period. Later, he became the first Dean of the Law Faculty of Hebrew University. While a student of Feinberg’s in the 1960s, Reisman read Feinberg’s book on the “Bernheim Petition,” which was a detailed narrative of the diplomatic history of actors involved, namely, Bernheim, his NGO, Germany, and the League Secretariat. In a recent E-mail to me, Reisman recalled that he “thought a great deal” about this book. The Bernheim Peti32

33

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W. Michael Reisman, The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application, in Developments of International Law in Treaty Making 15, 19 (Rüdiger Wolfrum & Volker Röben eds., 2005). I was in attendance at this conference and vividly recall Reisman’s intense presentation at the beginning of the conference. During the coffee break, I overheard some senior jurists confide how much they enjoyed hearing a Reisman presentation even when they did not agree with it! Id. at 20; cf. Paul Schiff Berman, A Pluralist Approach to International Law, 32 Yale J. Int’l L. 301, 308 (2007) (noting that “we need to think of international law as a global interplay of plural voices, many of which are not associated with the state”). Reisman, supra note 32, at 21; see also id. at 24 (discussing the “infiltration of non-state actors”).

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tion was a private initiative of Franz Bernheim and other Jewish residents in German Upper Silesia who, in 1933, invoked a provision in the Geneva Convention of 1922 that gave the League of Nations the duty to guarantee minority rights and provided a right to petition.35 The petition carefully documented the discriminatory German laws that had been enacted and how they violated the Convention. The League Council accepted the petition as admissible and referred it to a committee for study and when the committee reported, there was a discussion in the Council about the plight of Jews in Germany. Bernheim received vindication, but the Council lacked the power to remedy the situation. Although Reisman now recalls Feinberg in the 1960s as “not especially sympathetic to a functional notion of participants which could include actors other than governments of nation-states,” in my view, Feinberg’s earlier scholarship was notably attentive to the vital role of private actors. In 1932, Feinberg gave a Hague Academy lecture on The Petition in International Law where he discussed the role of petitions in the League of Nations and traced private initiatives back to the nineteenth century.36 Feinberg’s essay makes an important distinction between the “petition-complaint” (the Bernheim type) and the petition-voeu, in which the petitioner expresses views for the public interest. In 1948, Feinberg wrote an article on The Recognition of the Jewish People in International Law in which he took note of how Jewish communities sent unofficial representatives to the Congress of Vienna in 1814.37 In 1972, Feinberg wrote an article about the Jewish question at the Congress of Aix-la-Chapelle of 1818.38 That article discusses an episode in which the Reverend Lewis Way, an English clergyman and member of a London organization, lobbied the Congress on the need to better the civil and political status of Jews. Feinberg shows that Way’s documents were considered by the Congress and led to an unpublished Protocol recognizing the laudable object of Way’s proposals. But Feinberg concludes that the Protocol had no practical results. In addition, Feinberg notes the presence in 1818 of other private petitioners including Thomas Clarkson of the British anti-slavery movement. In 1968, Feinberg authored a study on The International Protection of Human Rights and the Jewish Question in honor of the twentieth anniversary of the UDHR.39 His historical study looks at the role of Jews and the Jewish question in instilling the concept of human rights into the conscience of mankind in the nineteenth and early twentieth centuries. Feinberg concludes that Jewish groups were themselves a most important factor in moving the Great Powers to take action on their behalf. Almost every act of intervention for the benefit of Jews was the result of petitions and appeals 35 36 37 38 39

Dorothy V. Jones, Toward A Just World 122-31 (2002). Nathan Feinberg, La Pétition en droit international, 40 Recueil des Cours 525 (1932). Nathan Feinberg, The Recognition of the Jewish People in International Law, 1948 Jewish Y.B. Int’l L. 1, 13. Nathan Feinberg, The Jewish Question at the Congress of Aix-la-Chapelle, 1818, 2 Isr. Y.B. on Hum. Rts. 176 (1972). Nathan Feinberg, The International Protection of Human Rights and the Jewish Question (An Historical Survey), 3 Isr. L. Rev. 487 (1968).

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of Jewish organizations, such as l‘Alliance Israélite Universelle, the Board of Deputies of British Jews and the Anglo-Jewish Association, or of influential and highly placed Jewish notabilities.40

One of the episodes Feinberg discussed was how Jewish groups submitted memoranda to the Congress of Berlin in 1878, and posited that these endeavors were “among the major factors contributing to the crystallization of a new principle established at the Congress of Berlin”41 in regard to the protection of minority rights.42 Another important episode occurred at the beginning of the Paris Peace Conference when the Committee of Jewish Delegations set up shop in Paris and influenced the drafting of the Minorities treaties.43 Feinberg’s article also takes note of the private declaration initiatives on human rights undertaken by the Institut de droit International and the International Diplomatic Academy. Self-Limitation of Government Power The lasting impact of private initiatives on human rights led Reisman to offer the thought that one would expect the initiative for international human rights law to come from private actors rather than government officials because such officials would hardly be likely to undertake an initiative aimed at limiting government power.44 In appraising this thought, there are several ways to unpack the issues. Is the proposition descriptively correct for the human rights regime? Can it be extended beyond human rights to any body of international law that limits the power of states and/or of government officials? Is there a theoretical basis for the idea that governments are hardly likely to limit their own power? Looking at history, I think Reisman is correct insofar as he claims that new norms of international human rights law have originated mainly within civil society rather than in governments.45 That was especially true for the great movements in respect to the slave trade, political prisoners, the rights of women, religious minorities, refugees, children, genocide, racial discrimination, torture, and national self-determination. The story of worker rights is more nuanced, as it did involve government regulators at an early stage and international civil servants beginning with the establishment of 40 41 42 43 44 45

Id. at 495-96. Id. at 497. Id. at 496-97. Id. at 497-98. See Reisman, supra note 1, at 80. See, e.g., Dorothy B. Robins, Experiment in Democracy: The Story of U.S. Citizen Organizations in Forging the Charter of the United Nations (1971); William Korey, NGOs and the Universal Declaration of Human Rights (1998); Paul Gordon Lauren, The Evolution of International Human Rights (2d. ed. 2003); Linda Rabben, Fierce Legion of Friends: A History of Human Rights Campaigns and Campaigners (2002); Adam Hochschild, Bury the Chains: Prophets, Slaves, and Rebels in the First Human Rights Crusade (2005).

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the International Labour Organization (ILO) in 1919. Still, one can hardly doubt the central role of unions in promoting worker rights internationally from 1916 onward. Although human dignity in the New Haven School sense is broad enough to sweep in any field of international law, one can distinguish human rights from other areas of law that put limits on states such as humanitarian law, commercial law, intellectual property, environmental law, among others. Yet looking across these disparate fields of international law, one can see from history that catalytic NGO and private initiatives generally precede treatymaking by states. The nature of the private actors, of course, differs from issue to issue. A central NGO for humanitarian law is the Red Cross movement, which started as a private initiative of elites, and later spawned mimetic efforts within countries and intergovernmentally.46 For environmental protection and conservation, the early initiatives were NGO-driven, but soon pulled in government regulators and shaped the modern form of compartmentalized issuedriven policymaking through epistemic communities. For international economic law, on commercial transactions, investment, and trade regulation, the early driver was the business community, particularly the International Chamber of Commerce. The reader might agree with these historical points about the origin of the major bodies of international law in the nineteenth and early twentieth century, including the UDHR, but then offer the claim that contemporary governments recognize the importance of international cooperation and lawmaking and no longer need NGOs to get the ball rolling. The claim is probably true to some extent as can be seen by the huge numbers of government officials in foreign ministries working to promote every facet of international law. These governmental actors are supplemented by international civil servants employed by the United Nations, its specialized agencies, the World Bank, and thousands of other organizations. The role of the media is also very important, particularly in carrying out the intelligence, promotion, and appraisal functions. Nevertheless, even in the contemporary world of thick international obligations, the role of civil society organizations (and for some issues, business groups) remains central to the achievement of new obligations on states. The enzymatic role of NGOs can be seen in one of the most important outputs of the UN over the past several years—the adoption by the U.N. General Assembly in 2005 of the Resolution declaring a Responsibility to Protect (R2P) populations from genocide, war crimes, ethnic cleansing and crimes against humanity.47 The R2P portion of the Resolution was an important achievement in proclaiming a new duty of states and a responsibility of the “international community, through the United Nations .”48 Specifically, the Resolution says that “[e]ach individual State has the responsibility to protect its populations from genocide, war crimes, ethnic 46

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The literature on the Red Cross movement is vast. See, e.g., Ralph Zacklin, International Law and the Protection of Civilian Victims of Non-International Armed Conflicts, in Essays on International Law in Honour of Krishna Rao 282 (M.K. Nawaz ed., 1976). 2005 World Summit Outcome, G.A. Res. 60/1, ¶¶ 138-39, U.N. Doc. A/RES/60/1 (Sept. 16, 2005). Id. ¶ 139.

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cleaning and crimes against humanity.”49 That norm is backed up with a statement that governments are prepared to take collective action “should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”50 Like all other important human rights and humanitarian initiatives, R2P was preceded by a medley of various kinds of intelligence and promotional work by civic society. I am not aware of any written history of this episode attempting to allocate credit to U.N. officials, sympathetic governments, and civil society organizations.51 But close observers do acknowledge the valuable contribution of the network of NGOs including the World Federalist Movement, Human Rights Watch, the International Crisis Group, Amnesty International, and of course the International Commission on Intervention and State Sovereignty (ICISS), which, in 2001, shaped the R2P concept. In 2007, the Global Centre for the Responsibility to Protect was launched “to catalyze action to move … the responsibility to protect … from principle into practice.”52 Having shown the descriptive accuracy of Reisman’s observation that NGOs initiate prescriptions to limit government power, I will now move to the theoretical question of whether governments are likely to limit their own power. Obviously, governments do that all the time, at least formally, through treaty commitment. But what Reisman seems to be saying is that the impetus to do so would be unlikely to come from government officials and would instead be more likely to come from outside government. Yet that raises the question of whether outside influences are a prerequisite. Perhaps an answer to that question can be found in the rational choice lens of international law theory. In their valuable contribution to international law theory, Jack Goldsmith and Eric A. Posner argue in The Limits of International Law that states act out of self-interest, not out of a legal or moral obligation to obey international law.53 In my view, their work is aptly described as a “theory” because it can be used to generate predictions as to how states will act. Using game theory, Goldsmith and Posner offer several models of state interaction: coincidence of interest, coercion, cooperation in a so-called “prisoner’s dilemma” game where the value of such cooperation depends on whether other states reciprocate, and coordination, where there is more than one action that can generate joint benefits if both states perform that action. With respect to human 49 50 51

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Id. ¶ 138. Id. ¶ 139. A brief history is presented in Ved P. Nanda, The Protection of Human Rights Under International Law: Will the U.N. Human Rights Council and the Emerging New Norm “Responsibility to Protect” Make a Difference?, 35 Denv. J. Int’l L. & Pol’y 353, 367-73 (2007). In the previous decade, NGOs were an important actor in the campaign against landmines and for the International Criminal Court. On the latter, the best article on the Rome Conference, taking note of the role of NGOs, is Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 Am. J. Int’l L. 22 (1999). Global Centre for the Responsibility to Protect, http://globalr2p.org/index.html. Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005).

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rights, they argue that while all four of these games have been in play over the centuries, modern multilateral human rights treaties reflect a coincidence of interest.54 Goldsmith and Posner’s volume was followed by a well-written book by Andrew Guzman titled How International Law Works: A Rational Choice Theory.55 Guzman starts with the same rational behavioral assumption regarding states, namely that states will only enter into agreements when doing so make them better off.56 His book is mainly focused on theorizing compliance rather than the making of international agreements, but it does cover the latter. Guzman explains that “multilateral agreements allow states to overcome collective action problems that bilateral agreements cannot adequately address.”57 With respect to the International Covenant on Civil and Political Rights, he says that it is not only a “tool” intended “to affect the payoffs of states,” but that the Covenant also serves an “expressive function.”58 My take on this new stream of literature is that, in theory, international human rights agreements can be crafted and ratified by states in their own interest without being encouraged to do so by NGOs. A state may agree to guarantee human rights either for its own internal purposes or as a price paid to commit other states to guarantee human rights. Of course, the logic of human rights agreements is far less compelling than in other areas of international law where there are true collective action problems. In an earlier work, I have termed agreements focused on the latter as “essential cooperation” between states, and contrasted it with “mutually reinforcing cooperation” where international agreements are helpful but not technically required for a state to act in its own interest.59 Human rights fall mainly into the latter category. Although I find the rational choice literature on international law interesting as a matter of legal philosophy and policy science, I am doubtful that its theories will generate many useful predictions because of the state-centricity of the assumptions. Explaining his own theory, Guzman says that it is predicated on the “assumption that states have a set of fixed preferences that motivate their international behavior.”60 While he agrees that “treaties may be used to achieve domestic objectives from time to time,” he says his book had to put that aside as “a pragmatic necessity” because otherwise “the complexity of the model is greatly increased.”61 To wit, “to the extent that state preferences change as a result of changes in domestic politics, it is clear that

54 55 56 57 58 59 60 61

Id. at 107-24. Andrew T. Guzman, How International Law Works: A Rational Choice Theory (2008). Id. at 121. Guzman also says that states may enter into agreements when it makes “their policymakers” better off. Id. Id. at 64. Id. at 20. Steve Charnovitz, Improving Environmental and Trade Governance, 7 Int’l Envtl. Aff. 59, 63 (1995). Guzman, supra note 55, at 128. Id.

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no good general model of how preferences change exists.”62 Furthermore, he says that models that include “strong public choice components” are “less helpful in general models such as the one developed here, or as tools to generate predictions about state behavior.”63 Nevertheless, he does relax the assumption of states “as unitary actors” when considering particular issues of application of the models, such as whether a state should choose soft law over a treaty.64 Although for over the century, many international law scholars had been comfortable with an assumption of the unitary state for purposes of theorizing about international law, the Jurisprudence of Lasswell and McDougal broke through that miasma by seeing the processes of law as involving “participants” that include the “nation-state[]” only as one of many other participants.65 Guzman’s book takes no notes of the scholarship of McDougal, Lasswell, or Reisman. Perhaps Guzman sees it as irrelevant to his project.66 Guzman explains that he bases his model on rational choice for a unitary state because that “yield[s] theory that is more parsimonious and predictions that are crisper and more falsifiable than is the case for alternative approaches.”67 Clearly, Guzman’s model is more parsimonious than that of Lasswell and McDougal, and I will be interested to see whether future scholarship can derive crisp and accurate predictions from it. The unitary construct of a “state” has heuristic value, but in an era of widespread democracy, the “state” is always at least one step removed from elected leaders, diplomats, agencies, legislatures, courts, and domestic and transnational economic and social actors. Consider this thought experiment: If I told you that a faraway planet had six states with listed fixed preferences, could one generate crisp realist predictions as to their inter-state relations? In my view, almost nothing could be said without more intelligence about the nature of the opportunities and problems facing the states, their relative power, and the views of the other stakeholders (human or otherwise). As Graham Allison demonstrated in Essence of Decision nearly forty years ago, there are limits to rational actor modeling because decisions are driven by many factors that do not fit the models.68 In my view, Lasswell and McDougal recognized early on that state-centric models were no more fruitful to understanding international law than they were in understanding municipal law. In other words, if one is interested in the law of contract, tort, product liability, manslaughter, discrimination, or pollution control, how far can one get by assuming a unitary state with fixed preferences? Obviously nowhere. Law 62 63 64 65 66 67 68

Id. Id. (internal citation omitted). Id. at 129. 1 Lasswell & McDougal, supra note 8, at 417 (discussing power). Lasswell and McDougal discuss game theory. See 2 Lasswell & McDougal, supra note 8, at 1090-99. Guzman, supra note 55, at 21. Graham Allison, Essence of Decision: Explaining the Cuban Missile Crisis (1971).

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concerns the interaction of people and their environment through markets and governments. A state’s preferences may be parsimonious to reflect on, but they do not help advocates or judges know, define, or reform the law. We owe to Lasswell the insight that the functions of authoritative decision within a state are the same as with authoritative decisions among states even though certain formalisms will vary (e.g., treatymaking bodies versus parliaments). Why would we expect that what a state does in its foreign affairs needs to be modeled differently (e.g., rational choice) than what a state does in its domestic affairs? It may be true that a state would have greater solicitude for the human rights of its own citizens than it would for aliens, but even for citizens, the level of domestic solicitude is often low. In his grand essay published in 1973 on “civic enforcement” in international humanitarian law, Reisman makes an important contribution to the New Haven School jurisprudence by warning of the dangers of state-centric analysis.69 He explains: “A state is a vast composite, interactive process in itself. For manipulative purposes, nothing is gained by viewing it as a monolithic actor.”70 To make humanitarian law more effective, Reisman calls for “civic enforcement” by individuals. Acknowledging that individuals may tend to view themselves as members of a nation-state rather than an “individual actor,” Reisman urges the public to begin the intellectual task of “rediscovery, the recapture, of the self ” in order to begin to view oneself as “a participating architect.”71 At the end of the essay, Reisman predicts that civic enforcement will become a major strut of international order if it can, by recruiting more and more private individuals, mobilize increasing support for the basic prescriptions of a world order of human dignity. Indeed, such support may be crucial for the transitions to an improved world order.72

The salience and accuracy of Reisman’s prediction regarding the role of private initiative in international humanitarian law since its publication can be seen in multiple ways. Over the past two decades, a great deal has been written about the internalization of international law into domestic law. Recently, Harold Koh has suggested that there is a “New” New Haven School centered on “Transnational Legal Process,” by which he means “the transsubstantive process whereby states and other transnational private actors use the blend of domestic and international legal process to internalize

69

70 71

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Michael Reisman, Making International Humanitarian Law Effective: The Case for Civic Enforcement, in The United Nations: A Reassessment 31 (John M. Paxman & George T. Boggs eds., 1973). Id. at 34. Id. at 33. In addition, Reisman asks who authorizes the individual citizen to determine that a fundamental international prescription has been violated. Reisman’s answer: “What prevents him?” Id. at 37. Id. at 38.

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international legal norms into domestic law.”73 I believe that Koh is right that this is a promising focal point for new directions of scholarship. And I would urge such scholars to reflect on the point made in the Jurisprudence that [w]hen international law is regarded as a body of rules only, applied by state officials to state officials, there may be dangerous neglect of how rules are made and remade, as well as of many other aspects of the comprehensive global constitutive process of authoritative decision. When international law is regarded as something mystical or autonomous, distinct from larger community policy, no inquiry is admitted, or intellectual tools afforded, for relating decisions to events in transnational social process and assessing their consequences for global public order.74

In my view, although understanding the dynamics of games that states play is important to any useful international law model, the analyst should also look at the games that NGOs play.75 (For some issues, such as international trade, one will also need to look at games that business actors play.) Like states, NGOs also operate at the two levels of domestic and international politics, including relations with intergovernmental organizations. Like states, NGOs are influenced by a variety of conditioning factors and their preferences change over time. Like states, NGOs can be presumed to act rationally.76 Of course, not all rational actions by NGOs are in the public interest, and not all action by NGOs is rational. Over the past decade, the influence of NGOs has led to greater concern about NGO accountability. Sometimes, as Lasswell and McDougal explained, “[i]n the eyes of the community the power exercised by unofficial organizations may be both controlling and authoritative.”77 The question that has arisen is whether there are adequate checks for the power of NGOs. Considerable literature exists of whose interests are pursued by NGOs and whether they are accountable.78 In 1971, Reisman postulated that although the literature on private groups assumed that they pursued 73 74 75 76

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Harold Hongju Koh, Is There a “New” New Haven School of International Law?, 32 Yale J. Int’l L. 559, 567 (2007) (footnote omitted). 1 Lasswell & McDougal, supra note 8, at 187 (emphasis added). See, e.g., Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders 13 (1998) (figure illustrating NGO games). See John Boli & George M. Thomas, INGOs and the Organization of World Culture, in Constructing World Culture: International Nongovernmental Organization Since 1875 13, 14 (John Boli & George M. Thomas eds., 1999) (explaining that “[international nongovernmental organizations] are transnational bodies exercising a special type of authority we call rational voluntarism”); Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 Stan. L. Rev. 1667, 1694 (2003) (suggesting that civil society can effectively engage in cosmopolitan action because groups consist of like-minded persons who come together to take advantage of the collective action powers that institutions can deliver). 1 Lasswell & McDougal, supra note 8, at 368. See, e.g., NGO Accountability (Lisa Jordan & Peter van Tuijl eds., 2006).

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private or special interests, it “would be more accurate to record that private groups coalesce and operate in order to realize highly cherished and intensely demanded values and that these values may well be expressive in the highest degree of the common interest.”79 Let me now return to the question raised at the beginning of my essay with respect to Reisman’s observation that the intelligence and promotion functions leading up to the UDHR would be more likely to come from private initiatives than from governments. I think Reisman is correct, because although it is possible that a rational state would take action to limit its own power, in the real world this occurs through the agency of government officials interacting with numerous other participants including self-directed NGOs. The UDHR might have been written without the inspiration of private initiatives and the lobbying of the NGOs at the UN in national capitals, but I am sure that it would not have been the same Declaration as written. My point is that all of the international treaties and organizations we now enjoy have been shaped in part by the involved NGO (and sometimes business and scientific) communities, and it is impossible to imagine contemporary global governance without the NGOs. While it may go too far to say that NGOs are a solvent of sovereignty,80 NGOs vitalize international law by injecting new norms and ideas into policymaking processes.81 NGOs are especially good at developing solutions to transnational problems that overlap international regimes. And for NGOs and other private actors, “the New Haven School assembles a set of tools for enhancing the understanding and more effective influencing of these international processes.”82

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Reisman, supra note 19, at 419 (referring to writings of Otto von Gierke, John R. Commons, and Arthur F. Bentley); see also Siegfried Wiessner, Legitimacy and Accountability of NGOs: A Policy Oriented Perspective, in International Law in Contemporary Perspective 305, 308 (W. Michael Reisman et al. eds., 2004) (“The legitimacy of an NGO in such a dynamic process of social life is tied to the authenticity of its mission, not the strength of its numbers.”); Menno T. Kamminga, The Evolving Status of NGOs Under International Law: A Threat to the Inter-State System?, in Non-State Actors and Human Rights 93, 111 (Philip Alston ed., 2005) (“In sum, there is still much more reason for concern about the negative impact of ‘irresponsible’ governments than about ‘irresponsible’ NGOs.”). One problem with this metaphor is that international agreements do not necessarily undercut sovereignty; they may enhance it. See, e.g., John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept, 97 Am. J. Int’l L. 782 (2003). As I have explained elsewhere, in democracies, NGOs compete with bureaucrats to gain the support of elected officials. Although NGOs ideations are likely to be broader than bureaucratic ideations, the true benefit of private actors comes in adding a diversity of inputs to governmental decisionmaking aimed at solving societal problems. Clearly, NGOs are not single-minded about when a particular international norm should be “higher” than national law. Reisman et al., supra note 6, at 577.

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International activity by NGOs may also serve as a remedy to the pathology of illegitimacy by distance83 by which it is said that the gap between international legal processes and voting by individuals in their home countries renders international institutions undemocratic. Without buying into the hypothesis that the closer a government is to the individual the more legitimate it is, I would say that NGOs have served as an antidote to the challenge of distance by connecting the individual member of an NGO to the NGO’s international activities in international organizations in New York, Geneva, and Nairobi. This is especially so when the “empowered self ” objects to what her elected government is doing.84 NGOs in the WTO Compared to the United Nations agencies, the role of NGOs in international economic organizations is much less significant.85 Consider the world trading system where serious problems exist with respect to the lack of transparency and the lack of opportunity for NGOs to observe and offer suggestions. The problem was even worse in the pre-WTO GATT era, and to its credit the WTO has made improvements.86 The need for improvement is recognized by WTO Director-General Pascal Lamy who recently in an oral report to the WTO General Council said: “Turning now to our external stakeholders—NGOs, parliaments, staffers, academics, business—there is also a need to strengthen networking and increase transparency.”87 Lamy is a visionary leader of the WTO who understands how vital public support is for the work done by the WTO. Unfortunately, greater progress has been stifled by hidebound governments, or more accurately, trade officials from many countries who do not want the global public—or sometimes even the public in their own countries—to know what is going on at the WTO. For example, even in 2009, the WTO classifies many documents 83

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See, e.g., Pascal Lamy, Director-General, WTO, Statement: Strengthening the WTO as the Global Trade Body (Apr. 29, 2009), http://www.wto.org/english/news_e/news09_e/ tnc_chair_report_29apr09_e.htm (“Taking decisions by consensus increases the legitimacy of agreements reached in an international forum, which is necessary and welcome, as the degree of legitimacy decreases with distance from domestic political processes.”). See Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism 87-88 (1999). Robert O’Brien et al., Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (2000); Jackie Smith, Social Movements and Multilateralism, in Multilateralism Under Challenge? 395 (Edward Newman, Ramesh Thakur & John Tirman eds., 2006). Yves Bonzon, Institutionalizing Public Participation in WTO Decision Making: Some Conceptual Hurdles and Avenues, 11 J. Int’l Econ. L. 751 (2008) (surveying progress made in the WTO on openness). For example, in recent years, a few panels and the Appellate Body have allowed the public to watch hearings with the consent of the disputing parties. See Lothar Ehring, Public Access to Dispute Settlement Hearings in the World Trade Organization, 11 J. Int’l Econ. L. 1021 (2008). Lamy, supra note 83.

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about ongoing rulemaking in the “JOB” series that is intended not to be available to the public. Occasionally there is a slipup and such “non-papers” are alluded to in official WTO public documents.88 The secrecy in the WTO accession process is by far the worst. Typically, the unequal rules that governments applying to join the WTO have to agree to are not publicly released until after the WTO approves the accession agreement. In an essay about human rights I should admit my own observational standpoint, which is that the right of an individual to engage in international trade—to import, export, invest, and disinvest—is a human right and should be a part of international human rights law.89 I think that the WTO would be more effective if it connected its rules and rhetoric more closely to the needs of the individual consumer and trader. Instead, most individuals perceive themselves as quite removed from the WTO. For example, from the vantage point of the individual, the central feature of international human rights law (or at least “first generation” human rights) is that it imposes disciplines on a state (or government) on how it can treat its own citizens. By contrast, the same individual would see international trade law (i.e., the law of the WTO) as not imposing any such disciplines, but rather imposing disciplines on how one’s own government can treat other governments. In other words, because the human rights regime gives states obligations that extend vertically down to citizens, the individual perceives that it has gained a right. But because the trade regime does not give states any such vertical obligations, the individual lacks any perception of a gained right and instead may feel a loss to the sovereignty of her own government to use trade policy instruments. In my view, this disconnect between the WTO and the individual could be remedied if the WTO acted affirmatively to implement the provision in its organizational charter providing that “[t]he General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO.”90 Although some might claim that the WTO is stronger and more effective than international human rights agencies because the WTO does not allow NGOs to speak at meetings and roam around the corridors, I think such a view is naive for the WTO of today. Although there are many NGOs (including business groups) that pursue economic nationalist agendas,

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See, e.g., Working Party on Domestic Regulation, Report on the Meeting Held on 3 December 2003, ¶¶ 2, 5, S/WPDR/M/24 (Jan. 22, 2004). I first offered that observation at a conference honoring the 50th anniversary of the UDHR. Steve Charnovitz, The Globalization of Economic Human Rights, 25 Brook. J. Int’l L. 113, 122 (1999); cf. Ernst-Ulrich Petersmann, Human Rights and International Trade Law: Defining and Connecting the Two Fields, in Human Rights and International Trade 29, 41 (Thomas Cottier, Joost Pauwelyn & Elisabeth Bürgi eds., 2005) (“Individual freedom, diversity, and rivalry are core problems of both human rights and trade law.”). Marrakesh Agreement Establishing the World Trade Organization, art. V:2, Apr. 15, 1994, 1867 U.N.T.S. 154. For an excellent backgrounder on the issue, see Peter Van den Bossche, NGO Involvement in the WTO: A Comparative Perspective, 11 J. Int’l. Econ. L. 717 (2008).

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it is rare that one sees transnational protectionism. It is the transnationalism of NGO activity that forces it to promote world community values rather than the interests of one particular country or market. While the rulemaking branch of the WTO has not made any progress in allowing NGOs to participate, it once seemed as though the dispute settlement branch of the WTO was different. In 1998, the Appellate Body handed down its important United States—Shrimp decision holding that unsolicited amicus briefs were admissible.91 This seemed like a milestone at the time, but as it turned out, nothing of value has emerged from these developments. Even worse, recently, there has been some backtracking by the WTO Appellate Body.92 Before discussing these developments, one should start at the beginning of NGO appearances before international tribunals. In its earliest practice, the Permanent Court of International Justice (PCIJ) permitted international NGOs to make oral statements in four of the Court advisory proceedings regarding the ILO.93 The PCIJ also permitted NGOs to make written statements in some of these cases.94 The value of NGO participation can be seen clearly in Advisory Opinion No. 1, which was a case about representativeness of nongovernment delegates.95 To understand this case, one must know that the ILO, unique among international organizations, requires that state members be represented by four delegates including two from government, one from workers, and one from employers. The decision of the authors of the ILO Constitution in 1919 to make representation tripartite reflected a recognition that tripartism would enhance the legitimacy of the ILO in its role of prescribing norms for incorporation into domestic law. Let me briefly summarize the background of the case: At issue was the interpretation of the provision of the Treaty of Versailles requiring the “non-Government delegates” to be “chosen in agreement with the industrial organizations … which are most representative of employers or workpeople.96 At that time, The Netherlands had five labor federations. In 1919 and 1920, the government chose a worker delegate from the largest federation. Tension ensued because the second and third largest federations were Christian federations and were being precluded from choosing ILO delegates even though together these two federations had more members than the largest fed91 92

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Appellate Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶¶ 83, 106-10, WT/DS58/AB/R (Oct. 12, 1998). As the reader might intuit, I favor the possibility for NGOs and business groups to submit amicus briefs to WTO tribunals. For an argument against amicus briefs at the WTO, see Yuka Fukunaga, Civil Society and the Legitimacy of the WTO Dispute Settlement System, 34 Brook. J. Int’l L. 85, 104 (2008). The PCIJ permitted NGO oral statements in its first two cases, both decided in 1922. The PCIJ did not offer to hear NGOs in the Court’s first contentious proceeding, decided in 1923 or in subsequent contentious cases. Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am. J. Int’l L. 611, 622-23 (1994). Designation of the Workers’ Delegate for the Netherlands at the Third Session of the Int’l Labour Conference, Advisory Opinion, 1922 P.C.I.J. (ser. B) No. 1, at 9 (July 31). Treaty of Versailles, art. 389, June 28, 1919, T.S. No. 4, 225 Consol. T.S. 188.

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eration. (This same problem was playing out in other countries with Christian unions that had fewer members than the non-Christian unions.) Looking ahead to 1921, The Netherlands announced that it would rotate the worker delegate to the other federations, and did so by selecting a delegate agreed to by the second, third, and fourth biggest federations. The largest federation complained to the ILO Conference, and triggered a credentials challenge claiming that the government had not selected the worker delegate in agreement with the largest federation, which was putatively the most representative. The credentials challenge failed. Recognizing the need for clarity, the ILO Conference asked the ILO Governing Body to request the Council of the League of Nations to seek an advisory opinion on the proper interpretation of Article 389, and the Council did so. In its Opinion delivered in 1922, the PCIJ upheld the selection by the Netherlands government and offered an important interpretation of Article 389 that has helped to guide credential challenges since. According to the Court, “[n]umbers are not the only test of the representative character of the organisations, but they are an important factor; other things being equal, the most numerous will be the most representative.”97 But agreement with the largest worker organization is not necessarily required. Because “the Workers’ Delegate represents all workers belonging to a particular Member,” when a country has “several industrial organizations representing the working classes, the Government must take all of them into consideration.”98 The Court made clear, however, that although a government should aim to get agreement from “all the most representative organisations of employers and workers,” the lack of such an agreement should not hold up a selection seen as “best for the purpose of ensuring the representation of the workers of the country.”99 When it docketed the matter, the PCIJ decided to hear representatives of international organizations that expressed a desire to be heard, and the PCIJ communicated that decision to the ILO and three private organizations.100 Two international labor federations participated in oral pleadings; they were the International Federation of Trades Unions and the International Federation of Christian Trades Unions. As one might expect, the Christian Federation supported the government’s choice and the International Federation opposed it. But both federations gave thoughtful pleadings containing factual points and legal arguments about the proper interpretation of Article 389.101 97 98 99 100

Designation of the Workers’ Delegate for the Netherlands, 1922 P.C.I.J. (ser. B) at 19. Id. at 23. Id. at 25. Id. at 10-11. Commentators at the time took note of the opportunities given to private organizations by the Court. See Manley O. Hudson, The First Year of the Permanent Court of International Justice, 17 Am. J. Int’l L. 15, 20 (1923); A. Hammarskjöld, The Early Work of the Permanent Court of International Justice, 36 Harv. L. Rev. 704, 718 (1923). 101 Speech by M. Mendels, Designation of the Workers’ Delegate for the Netherlands at the Third Session of the Int’l Labour Conference, Advisory Opinion, 1922 P.C.I.J. (ser. C) No. 1, at 58 (June 24, 1922) (representing the International Federation of Trades Unions); Speech by M. Serrarens, Designation of the Workers’ Delegate for the Netherlands at

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The International Federation of Trades Unions made an oral statement before the Court in the next case (also in 1922), Advisory Opinion No. 2, on the Competence of the International Labour Organization with Respect to Agricultural Labor.102 I have not been able to find documentation for that statement translated into English. In a supplementary advisory proceeding on the ILO and agricultural production, leading to Advisory Opinion No. 3 announced on the same day, the Court did not invite NGOs to make statements. Four years later, NGO participation occurred in Advisory Opinion No. 13, on the Competence of the ILO to Regulate the Personal Work of the Employer.103 The quest for an advisory opinion sprung out of a disagreement that occurred during the drafting of the ILO Convention No. 20 on Night Work in Bakeries. That Convention prohibits night baking even by “proprietors as well as workers” although it does not prohibit night baking in a household for its own consumption.104 During the Conference, the Employers Group objected to any regulation other than directly for workers, and after losing a vote on an amendment, the Employers requested the ILO Governing Body to seek a PCIJ advisory opinion through the League of Nations regarding the ILO’s competence. The Court interpreted the question as asking about the ILO’s competence to propose regulations on personal work of employers when that was incidental to regulating how an employer treated its employees. In its answer, the Court held that the authors of the ILO intended it to have “a very broad power of co-operating” and that this included the incidental regulation of the employer.105 The Court inferred that since governments retained the “individual legislative power” to adopt or reject any proposal of the Organization, they “must be assumed to have acted deliberately in providing for the co-operation, strictly limited as it is, of the International Labour Organization in the exercise of their sovereign powers in respect of labour measures, national and international.”106 At the time it commenced that matter, the PCIJ gave notice to three international NGOs and invited them to file applications to furnish information to the Court. All three did so in writing and were invited to deliver oral statements to the Court.107 The written briefs show the NGOs taking full advantage of the opportunity to influence the Court’s decision, and are described briefly below. The Memorial of the International Federation of Trade Unions is a political argument rather than a legal argument. The Memorial explains the background of the

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the Third Session of the Int’l Labour Conference, Advisory Opinion, 1922 P.C.I.J. (ser. C) No. 1, at 75 (June 26, 1922) (representing the International Federation of Christian Trades Unions). 1 World Court Reports 122 (Manley O. Hudson ed., 1934). Competence of the Int’l Labour Org. to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion, 1926 P.C.I.J (ser. B) No. 13, at 6 (July 23). Convention Concerning Night Work in Bakeries, art. 1(2), June 8, 1925, 38 U.N.T.S. 269. Personal Work of the Employer, 1926 P.C.I.J. (ser. B), at 18. Id. at 22. Id. at 8. The oral statements and one of the written statements exist only in French and are not discussed here.

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Convention, namely, the increased competition among bakers to provide customers fresh bread as early as possible. Because this involved working all night, the International Congress of Workers in the Baking Trade began agitating for prohibitions against night work. The Memorial further explains that from the bakery workers perspective, “[t]he prohibition of night work could not be carried out if night work by small proprietors was permitted, as certain members of the trade would then be in a specially favoured position.”108 The “Consultation” of the International Organization of Industrial Employers is more interesting as it is a carefully prepared legal argument authored by distinguished counsel.109 The Employers asked the Court to find no ILO competence and presented several arguments: One was a textual argument about the ILO Charter and its focus on workers. Another argument called for a restrictive interpretation of public international law based on two fundamental principles, the sovereignty of the state and the liberty of the individual.110 The most subtle line of argument was that “[i]t is essential in international law … not to prescribe rules that cannot be enforced.”111 Furthermore, the Employers explained: It is true that there is reserved to States the right not to ratify the conventions voted, but the exercise of this right should, in theory, be exceptional. It would be regrettable if, from an excessive widening of the competence of the International Labour Organization, governments were too often placed before the alternative of either refusing to ratify or adopting measures which were violently opposed to their own fundamental concepts; the former alternative would always be chosen. Useless work would thus have been performed for the Convention [and] would inevitably remain a dead letter in important countries; the effect on the future of international law would be regrettable and would tend to perpetuate that frame of mind which regards States as not being bound by resolutions emanating from international bodies.112

To me, the brief of the Employers is fascinating in several ways: First, it looks like a modern amicus curiae brief, and that makes it the first to be offered to an international court. Second, the brief demonstrates that in the early days of the ILO, even the international employer association envisioned that non-ratification of ILO conventions would be “exceptional.” Third, the brief is prophetic in worrying that important conventions could become “a dead letter in important countries” if they went too far

108 Memorial by the International Federation of Trade Unions, Competence of the Int’l Labour Org. to Regulate, Incidentally, the Personal Work of the Employer, Advisory Opinion, 1926 P.C.I.J (ser. C) No. 12, at 227 (June 5, 1926). 109 Consultation Given by Mm. Berthélémy, Le Fur, and Julliot de la Morandière, id. at 194 (June 14, 1926). Today the Organization is known as the International Organization of Employers (IOE). 110 Id. at 195-97. 111 Id. at 211. 112 Id. at 212.

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in opposition to “fundamental concepts.”113 As for the Night Work in Bakeries Convention, it seems to be explainable more by public choice than by public policy. Not surprisingly, the Convention was ratified by only 17 countries, eight of which later denounced it beginning in 1950. Space constraints prevent a discussion of the fourth advisory proceeding in which NGOs participated, on the Interpretation of the Convention of 1919 Concerning Employment of Women during the Night. Yet it can be pointed out that once again the Court took the initiative to notify the three international NGOs most involved with the ILO of the opportunity to furnish information to the Court on the question being considered. The two labor federations agreed to submit written and oral statements and did so.114 The pleadings of the international labor federations and employers organization to the PCIJ are in the nature of what Nathan Feinberg called a “petition-voeu.” Although the International Court of Justice (ICJ) can permit amicus briefs in advisory proceedings, it has done so in only one instance, in 1950, in the South-West Africa advisory proceeding, and in that episode the statements arrived one month after the deadline set by the Court and were not used.115 In 1970, during the Namibia advisory proceeding at the ICJ, Michael Reisman wrote to the Court to ask about the possibility of submitting an amicus curiae brief and noting that there was no bar to that in the ICJ Statute.116 The ICJ’s Registrar rejected Reisman’s offer, and claimed that its ability to accept statements from international organizations precludes acceptance of such materials from others. Before being elected to the ICJ, Rosalyn Higgins wrote that “[the International Court settles disputes between States. Cases cannot be brought by individuals and indeed, neither they nor non-governmental organizations have any standing to intervene in inter-State litigation by amicus briefs.”117 But in my view, that an NGO lacks standing or a “right” to participate does not necessarily mean that a court cannot grant an opportunity to participate. In the years after the 1970 episode, Reisman labored on an article he tentatively titled Amici Curiae Jure Gentium: For a Court in Need of Friends.118 Unfortunately for scholars of international law, Reisman did not finish the article before events overtook him. Recently, he explained to me that he abandoned this project after Dinah Shelton’s article on NGO participation in international courts was published by the

113 Id. 114 Interpretation of the Convention of 1919 Concerning Employment of Women During the Night, Advisory Opinion, 1932 P.C.I.J. (ser. A/B) No. 50, at 367-68 (Nov. 15). One of the briefs arrived after the time limit, yet was accepted nonetheless. 115 Shelton, supra note 94, at 623-24. 116 Id. at 624. 117 2 Rosalyn Higgins, International Law in a Changing International System, in Themes and Theories: Selected Essays, Speeches, and Writings in International Law 903, 908 (2009). 118 Michael Reisman, Accelerating Advisory Opinions: Critique and Proposal, 68 Am. J. Int’l L. 648, 668 n.89 (1974).

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American Journal of International Law in 1994.119 Shelton’s seminal article has informed and inspired considerable work on civil society intervention in international courts and other institutions.120 Despite the fact that NGOs are not allowed to submit amicus briefs to the ICJ, they were not embarrassed to try to do so at the WTO. In the United States—Shrimp case, the unsolicited NGO briefs were rejected by the panel as beyond its authority to accept, and that holding was appealed by the United States. To the surprise of many observers, the Appellate Body held in 1998 that panels could accept unsolicited amicus briefs from interested groups or individuals despite no explicit authority to do so.121 The presiding member of the Appellate Body decision in Shrimp was Florentino Feliciano, a student of McDougal’s at Yale in the mid-1950s. In the United States— Lead Bars case, the Appellate Body held in 2000 that it too had the discretionary authority to accept and consider amicus submissions.122 The high water mark in the WTO for NGO amicus briefs probably came in November 2000 in the EC—Asbestos case when the Appellate Body established a procedure to invite written submissions from persons other than parties or third parties. The Appellate Body acted out of recognition that this was the first WTO appeal involving public health and that the expected amicus briefs should be subject to transparency and other rules. The procedure required applicants to file for leave to submit a brief and to include information about the applicant.123 Following the promulgation of the procedure, however, many WTO member governments objected and called a special session of the WTO General Council to criticize the Appellate Body for establishing a procedure that appeared to legitimize amicus briefs. Following the debate, the Chairman of the General Council warned the Appellate Body to “exercise extreme caution in future cases,”124 and the Appellate Body got the message that its judicial independence was less than it had thought.125 Consequently, the Appellate Body rejected all of the requests for leave that it received. In my view, a good practice for acceptance of amicus briefs in trade disputes can be drawn from investment arbitrations under the North American Free Trade 119 E-mail from Michael Reisman to Steve Charnovitz (Apr. 26, 2009) (on file with author); see also Shelton, supra note 94. 120 See, e.g., Civil Society, International Courts and Compliance Bodies (Tullio Treves et al. eds., 2005). 121 A.L.C. de Mestral & M. Auerbach-Ziogas, A Proposal to Introduce an Advocate General’s Position into WTO Dispute Settlement, in Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano 159, 171 (Steve Charnovitz, Debra P. Steger & Peter Van den Bossche eds., 2005). 122 Duncan B. Hollis, Private Actors in Public International Law: Amicus Curiae and the Case for the Retention of State Sovereignty, 25 B.C. Int’l & Comp. L. Rev. 235, 240-41 (2002). 123 Appellate Body Report, European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, ¶ 52, WT/DS135/AB/R (Mar. 12, 2001). 124 Hollis, supra note 122, at 253. 125 Id. at 251-55. The chairman issuing the threat was Kåre Bryn of Norway.

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Agreement (NAFTA). In October 2003, the intergovernmental NAFTA Free Trade Commission issued a Statement on Non-Disputing Party Participation which recommended procedures for NAFTA tribunals to follow.126 These procedures were immediately put in place by the Methanex Tribunal, which soon received applications and written submissions from two NGO applicants.127 Those submissions were accepted. The tribunal did not summarize the briefs, but did give a website address where the briefs were posted.128 At one point in the Award, the tribunal took note of the “carefully reasoned Amicus submission” from the International Institute for Sustainable Development (IISD) and quoted a statement from it.129 As noted above, Reisman was a member of the Methanex Tribunal. Unfortunately, WTO dispute settlement lacks these elements of the good practice from the NAFTA, which provide transparency and objectivity. In the WTO, the government parties have not provided an ex post procedure for amicus submissions. In the WTO, the Appellate Body sometimes rejects amicus submissions. In the WTO, the Appellate Body does not summarize the amicus briefs it receives or give a website address where they are posted. In the WTO, the Appellate Body rarely comments on the substance of submissions, and if so only in a negative way. In the WTO, the Appellate Body has settled into the habit of a formulaic brush-off that it did not find the submission of assistance or did not take it into account. Until recently, one could generally count on the Appellate Body to list the names of the groups submitting briefs so that readers could ask them for the brief. But in the most recent decision, in the first case brought against China, the Appellate Body failed even to do that. Rather, the Appellate Body apparently sought to take the dignity and identity away from the friend of the court by referring to its work product solely as “an unsolicited amicus curiae brief.”130 Appended to this essay is a Table showing how the Appellate 126 NAFTA Free Trade Commission, Statement on Non-Disputing Party Participation (Oct. 7, 2003), http://www.international.gc.ca/trade-agreements-accords-commerciaux/dispdiff/nafta_commission.aspx?lang=en. This is an example of the important phenomenon of “external controls on international courts.” See Jacob Katz Cogan, Competition and Control in International Adjudication, 48 Va. J. Int’l L. 411, 420-23 (2008). 127 Methanex Corp. v. United States, Final Award of the Tribunal on Jurisdiction and Merits, Part II, Chapter C, ¶ 28, 44 I.L.M. 1345, 1365 (NAFTA Chapter Eleven Arbitral Tribunal 2005), available at http://www.state.gov/documents/organization/51052.pdf. In 2001, the Tribunal had decided that “it has the power to accept amicus submissions (in writing)” from the NGO petitioners, and that it would make a “final decision whether or not to receive them at a later stage of these arbitration proceedings.” Methanex Corp. v. United States, Decision of the Tribunal on Petitions from Third Persons to Intervene as “Amici Curiae” (NAFTA Chapter Eleven Arbitral Tribunal Jan. 15, 2001), http://www. state.gov/documents/organization/6039.pdf. 128 Methanex, Final Award of the Tribunal on Jurisdiction and Merits, Part II, Chapter C, ¶¶ 29 & n.9, 44 I.L.M. at 1365 & n.9. 129 Id. Part IV, Chapter B, ¶ 27, 44 I.L.M. at 1446. 130 Appellate Body Report, China—Measures Affecting Imports of Automobile Parts, ¶ 11, WT/DS339/AB/R (Dec. 15, 2008). The Appellate Body failed to name the friend of the court in one prior case, European Communities—Sardines, in 2002.

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Body has treated the petitions voeu in all 14 cases where such briefs were submitted.131 The Table demonstrates the accuracy of the pessimistic prediction offered by Jeffrey Dunoff in 1998 that “while the Shrimp-Turtle legal analysis deprives NGOs of a powerful rhetorical argument about the closed nature of trade regime dispute resolution processes, the doctrine guarantees no access, and the procedure that is used effectively keeps NGOs outside the domain of WTO dispute resolution.”132 Writing in 2009, I would say that with respect to amicus submissions, the WTO is now as closed as ever. In conclusion, this essay celebrates the work of Professor Reisman in elucidating the vital role of private initiative in influencing the variegated and interconnected processes of law. Standing on the shoulders of Professors McDougal, Lasswell, Feinberg and others in the twentieth century, Reisman—as a scholar, teacher, and jurist— has opened our eyes to see how broader participation can help to achieve and better sustain a world of human dignity. In a famous editorial comment in the American Journal of International Law in 1990, Reisman advises not to “commit an anachronism” in harking back to outdated concepts of sovereignty when thinking about human rights.133 With his perennially optimistic and creative approach to international law, Reisman continues to challenge his colleagues and students to learn all we can from the past in order to create an optimal public and civic order for the future. Appendix How the WTO Appellate Body Has Handled Amicus Briefs Dispute US—Shrimp WT/DS/ AB/R, ¶¶ , , 

US—Lead and Bismuth II WT/DS/ AB/R, ¶¶ , 

131

Month & Year Identity of Amicus Petitioners Adopted Nov.  Earth Island Institute, Humane Society, and Sierra Club Worldwide Fund for Nature (WWF); Foundation for International Environmental Law and Development (FIELD) Center for International Environmental Law (CIEL), Centre for Marine Conservation, Environmental Foundation, Mangrove Action Project Philippine Ecological Network, Red Nacional de Accion Ecologica, and Sobrevivencia June  American Iron and Steel Institute Specialty Steel Industry of North America

Admissibility All three briefs attached to U.S. submission Accepted revised third brief submitted directly to Appellate Body but did not comment on it

“[W]e have not found it necessary to take the two amicus curiae briefs filed into account in rendering our decision.”

If I had more space in this essay, I would do a similar analysis of amicus submissions to WTO panels. One interesting issue is whether panels that got reversed by the Appellate Body might not have if they had followed advice given in amicus submissions. 132 Jeffrey L. Dunoff, Border Patrol at the World Trade Organization, 9 Y.B. Int’l Envtl. L. 20, 23 (1998). 133 W. Michael Reisman, Editorial Comment, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 876 (1990).

9 Steve Charnovitz, How Nongovernmental Actors Vitalize International Law EC—Asbestos Apr.  WT/DS/ AB/R, ¶¶ –

Thailand—HBeams

Apr. 

 organizations, companies or individuals from  countries: From Argentina: Centro de Estudios Comunitarios de la Universidad Nacional de Rosario; From Australia: Australian Centre for Environmental Law, Mr. Don Anton, Prof. Jan McDonald; From Belgium: European Trade Union Confederation, European Chemical Industry Council, International Federation of Free Trade Unions; From Canada: Syndicat des Métallos; From Colombia: Asociación Colombiana de Fibras; From El Salvador: Duralita de Centroamérica S.A.; From France: Ban Asbestos International and Virtual Network; From Korea: Korea Asbestos Association; From India: All India A.C. Pressure Pipe Manufacturer’s Association, Maharashtra Asbestos Cement Pipe Manufacturers’ Association, Only Nature Endures, Roofit Industries Ltd.; From Japan: Japan Asbestos Association; From The Netherlands: Greenpeace International; From Portugal: Associação das Indústrias de Produtos de Amianio Crisótilo; From Senegal: Sénac; From Sri Lanka: Asbestos Cement Industries Ltd.; From South Africa: South African Asbestos Producers Advisory Committee; From Swaziland: HVL Asbestos; From Switzerland: CIEL, Lutheran World Federation, WWF International; From Thailand: Federation of Thai Industries, Roofing and Accessories Club; From the United Kingdom: Association of Personal Injury Lawyers, FIELD, International Ban Asbestos Secretariat, J&S Bridle Associates, Occupational and Environmental Diseases Association; From the United States: American Public Health Association, Asbestos Information Association, Environment and American Chemistry Council, International Council on Metals, Prof. Robert Howse, Society for Occupational and Environmental Health. Consuming Industries Trade Action Coalition (US)

WT/DS/ AB/R, ¶¶ – US—Shrimp (Art. .)

Nov. 

WT/DS/AB/ RW, ¶¶ ,  EC—Sardines WT/DS/ AB/R, ¶¶ , , 

American Humane Society and Humane Society International Prof. Robert Howse

Oct. 

A private individual

Some briefs returned; All applications for leave to file a brief denied; some briefs not accepted

Rejected brief because it included reference to Thailand’s Submission Also stated: “[W]e did not find the brief filed by CITAC to be relevant to our task” Attached to U.S. Submission

Howse Brief: “[W]e have not found it necessary to take into account” this brief The “brief submitted by a private individual does not assist us in this appeal.”

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US—CounterJan.  vailing Measures on Certain EC Products WT/DS/ AB/R, ¶  US—Steel Safe- Dec.  guards WT/DS/ AB/R, ¶¶ , 

American Iron and Steel Institute

“The brief has not been taken into account by us as we do not find it to be of assistance in this appeal.”

American Institute for International Steel

US—Softwood Lumber IV WT/DS/ AB/R, ¶ 

Feb. 

Indigenous Network on Economics and Trade (Canada) Defenders of Wildlife, Natural Resources Defense Council, Northwest Ecosystem Alliance (US)

EC—Export Subsidies on Sugar WT/DS/ AB/R, ¶  EC—Chicken Cuts WT/DS/ AB/R, ¶  Mexico—Taxes on Soft Drinks WT/DS/ AB/R, ¶  Brazil—Retreaded Tyres WT/DS/ AB/R, ¶ 

May 

Association of Central American Sugar Industries

“We note that the brief was directed primarily to a question that was not part of any of the claims. We did not find the brief to be of assistance in deciding this appeal.” “These briefs dealt with some questions not addressed in the submissions of the participants or third participants. … Ultimately, in this appeal, the Division did not find it necessary to take the two amicus curiae briefs into account in rendering its decision.” The division “did not find it necessary to take this amicus curiae brief into account.”

Sept. 

Association of Poultry Processors and Poultry Trade (EC)

China—Auto Parts WT/DS/ AB/R, ¶

Jan. 

Mar. 

Dec. 

“The Division does not find it necessary to take the brief into account in resolving the issues raised in this appeal.” National Chamber of the Sugar and Alcohol Indus- “The Division did not find it tries of Mexico necessary to take the brief into account in resolving the issues raised in this appeal.” Humane Society International “The Appellate Body Division A joint brief from  NGOs from  countries: From hearing the appeal did not find Argentina: Centro de Derechos Humanos y Ambi- it necessary to take these amente; From Belgium: Friends of the Earth Europe; icus curiae briefs into account From Brazil: Associação de Combate aos Poluen- in rendering its decision.” tes, Associação de Proteção ao Meio Ambiente de Cianorte, Conectas Direitos Humanos, Instituto O Direito por Um Planeta Verde, Justiça Global; From Germany: The German NGO Forum on Environment and Development; From U.S: CIEL “An unsolicited amicus curiae brief” The “Division hearing the appeal did not find it necessary to rely on this amicus curiae brief in rendering its decision.”

Chapter 10 Between Façades and Operational Codes: Michael Reisman’s Jurisprudence of Suspicion Menachem Mautner*

In Freud and Philosophy, Paul Ricoeur presents Karl Marx, Friedrich Nietzsche, and Sigmund Freud as the “three masters of suspicion.”1 What was common to all three, writes Ricoeur, was the assumption that consciousness was primarily “‘false’ consciousness,”2 the domain of “illusions and lies.”3 The common problem, therefore, that occupied all three was that of the relationship between the “hidden” and the “shown,” the “simulated” and the “manifested.”4 Their efforts at “demystification”5 not only established a new relationship between “the patent and the latent,”6 writes Ricoeur; but also extended the boundaries of consciousness and “clear[ed] the horizon … for a new reign of Truth.”7 Michael Reisman’s jurisprudence is “a jurisprudence of suspicion.” It is a jurisprudence aimed at demystifying our commonplace understanding of the phenomenon of legality and making it more truthful. Reisman defines law as a combination of power and authority, but he sees power as lying at the root of authority, and authority as both concealing and legitimating power. Reisman’s jurisprudence is aimed at exposing the many layers of legality that exist underneath the “official,” formal layer of state law. Thus, Reisman holds that it is not only the case that in many instances a discrepancy exists between what the law says and law’s actual implementation; rather, deviations from what the law says may constitute a normative system, so that the same conduct would be governed by * 1 2 3 4 5 6 7

A previous version of this essay appeared in the Yale Journal of International Law. See 34 Yale J. Int’l L. 505 (2009). Paul Ricoeur, Freud and Philosophy: An Essay on Interpretation 33 (Denis Savage trans., 1970). Id. Id. at 32. See id. at 33-34. Id. at 34. Id. at 33. Id.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 163-182.

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two normative systems—the official law and the law that is actually applied. This last normative system would usually work, according to Reisman, for the benefit of elites that are involved in certain illicit conduct while at the same time investing efforts in maintaining the official normative system (for all the rest). Reisman writes about “lex imperfecta” and “lex simulata,” laws that are not meant to affect conduct, but rather to reaffirm belief in the vigor of an official layer of legality. Reisman exposes the existence of legality in our mundane, daily social interactions. One particular context to which Reisman’s demystifying endeavor applies is that of the gap existing between the high ideals of the law and our culture in general, on the one hand, and the extent to which these ideals are actually realized in our social life, on the other. The claim that we are living amidst a severe crisis of normativity is a unifying thread that runs throughout Reisman’s jurisprudence. The claim comes across with particular vigor in Spiritual Exercise, a novel published by Reisman under the pseudonym Deborah Shai, to which I shall later return.8 One context in which no normativity crisis exists however is Reisman’s own life. On the contrary, if a gap does exist in Reisman’s life it is that between his low-keyed verbal pronouncements as to how a person ought to lead his or her life and the unmatchable high standards of conduct he has continuously demonstrated throughout his life in his relations with his students and colleagues. In Spiritual Exercise, the protagonist undergoes conversion to Catholicism under the instruction of a Benedict priest to whom the protagonist later refers to as “my father.”9 Many of Reisman’s students underwent jurisprudential conversion under his instruction, and they refer to him as “their father,” extending the term beyond the purely intellectual context. I. Law A. Defining Law The key to Reisman’s jurisprudential writings is his departure point, namely his definition of law. Law for Reisman is a process of decision that is both authoritative, i.e., it conforms to the expectations of rightness held by members of the relevant group, and controlling, i.e., it enjoys effectiveness over members of the group.10 The major function of law for Reisman is to determine the way resources, both material and symbolic, are distributed among members of a group, as well as to determine the 8 9 10

Deborah Shai, Spiritual Exercise (2005). Id. at 14. See W. Michael Reisman, Folded Lies: Bribery, Crusades, And Reform 17 (1979) [hereinafter Reisman, Folded Lies]; Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, in International Law Essays 191, 192 (Myres S. McDougal & W. Michael Reisman eds., 1981); Michael Reisman, A Jurisprudence from the Perspective of the “Political Superior,” 23 N. Ky. L. Rev. 605, 616 (1996) [hereinafter Reisman, Political Superior]; W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118, 121 (1992) [hereinafter Reisman, New Haven School].

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procedures for the making of further decisions of that kind.11 There is no one fixed formula as to the balance that needs to exist between authority and effectiveness for a legal norm to exist, maintains Reisman; the particular mix between the two may vary widely.12 No law is ever wholly effective, however.13 Reisman’s holding that law is an arena for the determination of the distribution of material and symbolic resources is heir to the normative claim of realism.14 As Reisman puts it, those who apply the law need “to consider every statement presented as ‘law’ in terms of its policy consequences.”15 This approach makes law a humanistic enterprise through and through. The realist claim that law should be evaluated in terms of its effects and consequences on the lives of those subject to it led to a complete reshuffle of law school curriculum in the course of the twentieth century; to the emergence of the various “law and …” movements; and to the current perception of the law school as “a mini university.”16 It is in line with these processes that Reisman expects lawyers to be people versed in wide-range knowledge borrowed from all the disciplines of the social sciences and the humanities so that they would be able to assess the implications of potential decisions in which they are involved.17

11 12 13 14

15

16 17

Reisman, Political Superior, supra note 10, at 616-17. Reisman, New Haven School, supra note 10, at 121; see also McDougal, Lasswell & Reisman, supra note 10, at 192; Reisman, Political Superior, supra note 10, at 616. McDougal, Lasswell & Reisman, supra note 10, at 191-92. Legal formalism is premised on two major tenets. First, legal norms need to be organized in a system so as to turn legal decisionmaking processes into a procedure. (The outcome of a procedure is embedded in it so that the personality, character, life-experience, etc. of the decisionmaker are eliminated from the process.) Secondly, the system of legal norms needs to be operated autonomously, i.e., in disregard of the effects of legal decisions on the lives of those subject to them. Legal realism undermined both tenets. In what may be referred to as the descriptive strand in realism, it has been shown that legal formalism is unable to make good of its promise to eliminate the decisionmaker from legal decisionmaking processes. In what may be referred to as realism’s normative strand, it has been claimed that the supreme test for everything legal is its effects on the lives of the human beings subject to it. Reisman, Political Superior, supra note 10, at 626-27; see also Reisman, New Haven School, supra note 10, at 121. Reisman presents this vision of law as one that runs counter to the formalist and positivist jurisprudential traditions that see law as an autonomous system of legal contents—mainly rules—found in books and developed by legal experts in accordance with the internal logic of the system and in disregard of law’s effects on the lives of those on whom it applies. Reisman, Political Superior, supra note 10, at 616. George Priest, Social Science Theory and Legal Education: The Law School as University, 33 J. Legal Educ. 437, 437 (1983). Reisman, New Haven School, supra note 10, at 121; Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, in International Law Essays 42, 49-50 (Myres S. McDougal & W. Michael Reisman eds., 1981). This again is presented by Reisman as running counter to

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Law-making processes, according to Reisman, are supposed to be highly democratic. Authoritarian systems, he writes, enable the elite to do what it deems best for itself and to lie about it, if convenient. “But democratic systems, in contrast, derive political authority from the consent of the governed and expect authorized power to be used in ways that contribute to the common good.”18 Moreover, law-making processes according to Reisman’s approach have clear republican traits in that they need to take into account the interests of the most inclusive community.19 B. Law: Between the Professional and the Political The perception of law as a process in which the distribution of resources is determined invites two contradictory approaches as to the nature of law-making processes. The first approach, identified with legal realism, sees law as a professional arena:20 Lawyers are professional experts located in policymaking teams and working together with other professionals for the advancement of the well-being of their societies. A second approach, identified with Marxist tradition, sees law as a political arena in which various social and political groups, drawing on varying combinations of resources, struggle over the distribution of recourses (both material and symbolic). Where is Reisman’s jurisprudence located between these two approaches? At first sight the answer seems to be straightforward: Reisman’s jurisprudence focuses on the professional, rather than the political, aspects of law. But upon further reflection things prove to be more complex than that. Reisman’s jurisprudence is located at the level of the practicing lawyer who is expected to take part in decision-making processes. Reisman begins his Jurisprudence book (authored with Aaron M. Schreiber)21 with a story about a young lawyer whose firm represents a Japanese multinational corporation that considers establishing a manufacturing subsidiary in Penntown, a small town in western Pennsylvania. Pennsylvania law and local law had been forwarded to the client’s headquarters and the young lawyer is now asked “to visit Penntown and report more fully.” After a vivid description of the lawyers’ educational whereabouts in the small town, the chapter ends with the following statement: We hope these materials will explain some of the many functions and complex ethical and practical problems presented to lawyers in the many chores they now perform and can anticipate performing in the 21st century. That is the raison d’être of this book. Let us be blunt … [l]egal theory or jurisprudence is of importance only if it contributes to problem-

18 19 20 21

the formalist and positivist traditions which expect lawyers to confine themselves merely to knowledge of the contents of the law. Reisman, id. Reisman, Political Superior, supra note 10, at 608. W. Michael Reisman, Theory About Law: Jurisprudence for a Free Society, 108 Yale L.J. 935, 937 (1999). Robert W. Gordon, Critical Legal Histories, 36 Stan L. Rev. 57, 65-67 (1984). W. Michael Reisman & Aaron M. Schreiber, Jurisprudence: Understanding and Shaping Law (1987).

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solving for our profession and society. If it does not, there is no reason why it should be incorporated in the law school curriculum.22

On the other hand, every word of Reisman’s writings imparts the concept of decision-making arenas as sites of struggle and conflict between competing social and political groups drawing on varying, unequally distributed resources. These processes usually end up in the triumph of what Reisman refers to as “the elite”—a group that routinely succeeds in promoting both its interests and its world-view. Thus, what we have in Reisman’s jurisprudence is a combination of an interest in non-political decision-making arenas and processes—where for Reisman lawyers typically operate—together with an understanding that these arenas and processes are always sites of conflict, struggle and competition. We may put this point in different terms. Lawyers are the archetypical mediators, representing the interests of others. On the other hand, lawyers operate in the context of a distinct culture, a tradition23 rich with contents and with its own unique categories and (implicit) rules as to the moves and arguments that can be made within it—what Pierre Bourdieu called “habitus.”24 Thus, while lawyers perform their legal tasks within the context of a legal culture and a legal field, they unavoidably express and articulate in their actions the particular interests and world-views of the clients they represent. Since Marx’s The German Ideology25 we have been aware that control over essential civil society and state institutions leads to control over culture, so that a social group that enjoys such control manages to widely—never completely—propagate cultural understandings that promote its interests and world-view.26 This Marxist 22 23

24

25 26

Id. at 11. A perception of the law as a distinct cultural system may be found in the writings of a variety of writers. See, e.g., Karl N. Llewellyn, The Common Law Tradition (1960); Karl Llewellyn, The Case Law System in America (1989); James Boyd White, Heracles’ Bow (1985); James Boyd White, Justice As Translation (1990); James Boyd White, What Can a Lawyer Learn from Literature?, 102 Harv. L. Rev. 2014 (1989); Alexander M. Bickel, The Least Dangerous Branch (1962); Michael J. Perry, Morality and Politics in Law ch. 6 (1988); Stanley Fish, Is There a Text in This Class? (1980); Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, in Doing What Comes Naturally (1989); Stanley Fish, Fish v. Fiss, in id. at 120; Stanley Fish, Still Wrong After All These Years, in id. at 356; Stanley Fish, Dennis Martinez and the Uses of Theory, in id. at 372. Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805 (1987); Pierre Bourdieu, Outline of a Theory of Practice (R. Nice trans., 1977); Loïc Wacquant, Habitus, in Int’l Enc. Econ. Soc. (Jens Beckert & Milan Zafirovski eds., 2004). Karl Marx & Frederick Engels, The German Ideology (C.J. Arthur ed., Lawrence & Wishart 1970) (1932). Antonio Gramsci developed this theme by filling the Marxist concept of hegemony with new contents. See Antonio Gramsci, Selections From The Prison Notebooks (Quintin Hoare & Geoffrey Nowell Smith eds., trans., 1971); see also 1 Jean Comaroff

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analysis of the relation between power and culture (which, of course, is part of what makes Marx an object of Ricoeur’s “hermeneutics of suspicion”) bears on the relation between power and authority in the law: if law is always a combination of power and authority, then power is primary and authority is secondary and derivative. Yet much in Reisman’s writing, particularly his recurrent emphasis of the crucial importance of power in decision-making processes, resonates with this Marxist insight as to the inter-relationship between power and culture. Moreover, for Reisman, the relationship between power and authority is circular, so not only does power establish authority; but authority further feeds power. Citing Harold Lasswell’s Weberian statement that “possession of authority is itself effective power,” Reisman adds: “To refer to the ‘power’ of elites without explicit recognition of the role that authority plays in creating power and making it effective, is to ignore an important component of effective decision.”27 C. The Tasks of Jurisprudence If law is supposed to be the process through which decisions are made with the aim of advancing the welfare of human beings, the task of jurisprudence, according to Reisman, should be to provide lawyers with an understanding of the decision-making processes in which they are involved, an understanding of the social processes in which they are expected to intervene by means of the law, and an understanding of the various values that the law is expected to make part of the lives of human beings.28 Put differently, for Reisman, jurisprudence should “seek[] to be as comprehensive as possible regarding the various factors that influence decision.”29 Also, it should be premised on the understanding that policy decisions are taken in the context of varied institutions beyond the court system, and at times even illicitly.30 Jurisprudence should therefore see it as its task to provide enlightenment as to the decision-making processes that take place in all institutions in which law is made.31 Also, it should be a jurisprudence that “derives from the natural law tradition,”32 and that stands in stark contrast to any jurisprudence that “drastically reduce[s] the universe of variables to a text or a few purportedly key social factors.” 33 In particular, jurisprudence should stand in stark contrast to the Austinian positivist tradition which confines itself to

27 28 29 30 31 32 33

& John Comaroff, Of Revelation and Revolution (1991); Chantal Mouffe, Hegemony and Ideology in Gramsci, in Gramsci and Marxist Theory 168-204 (Chantal Mouffe ed., 1979). Reisman & Schreiber, supra note 21, at 52 (quoting Harold D. Lasswell & Abraham Kaplan, Power and Society 134 (1950)). Reisman, supra note 19, at 936-37; Reisman, New Haven School, supra note 10, at 119, 120; Reisman, Political Superior, supra note 10, at 618. Reisman, New Haven School, supra note 10, at 121. Reisman & Schreiber, supra note 21, at 3. Reisman, New Haven School, supra note 10, at 120. Id. at 119. Id. at 121.

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the perspective of the “receiver of commands” who is expected to obey the dictates of the law.34 D. Law as Authoritative: Law’s Conformity with Prevalent Expectations The outcomes of law-making processes need to be authoritative, holds Reisman, i.e., they need to conform to the expectations of members of the relevant group about “the right way of doing things.”35 It is for this reason that the primary function of the formal application of legal norms is not the infliction of punishment or the promotion of justice. Rather, “[t]he most urgent objective of a legal application is to maintain the credibility of the system of which it is a part by reaffirming the norm that has been violated and demonstrating the efficacy of the decision process and its commitment to continuing to police the norm. This increases the likelihood of conformity to the norm in the future.”36 Two opposite approaches are discernible in jurisprudential thought of the last two centuries as to the relation between law and society. The first, associated with thinkers such as Savigny, Ehrlich, and Pound, regards the effectiveness of law as dependent on law’s correspondence to popular beliefs and social practices.37 The second approach, associated with the normative, instrumentalist strand of legal realism, sees law as a major vehicle for social change. Under this approach, therefore, society is regarded as an object for law’s action. Reisman’s call for the assessment of law “in terms of its policy consequences” is clearly an offshoot of the second approach. But the emphasis he lays on law’s need to maintain its credibility resonates with the first approach: divergence between law and popular belief enfeebles law and at time may even bring it to the verge of extinction. E. The Effectiveness of Law The fact that legal norms are treated as authoritative creates, according to Reisman, the expectation among law’s subjects that in case of violation of a legal norm certain action will be taken to enforce and sustain it:38 [T]he distinguishing feature of a legal norm is not words in an ‘ought’ formula. The feature of a legal norm that distinguishes it from all the depreciated “you oughts” and “you shoulds” 34 35

36 37 38

Id. at 119. W. Michael Reisman, Law from the Policy Perspective, in International Law Essays 1, 2, 6 (Myres S. McDougal & W. Michael Reisman eds., 1981) [hereinafter Reisman, Law from a Policy Perspective]; W. Michael Reisman, Law in Brief Encounters 12, 39, 39-40, 54 (1999) [hereinafter Reisman, Brief Encounters]. Reisman, Brief Encounters, at 89. Roger Cotterrell, Law as Constitutive, in Int’l Enc. Soc. & Behav. Sci. 8497, 8491-500 (N.J. Smelser & P.B. Baltes eds., 2001). Reisman, Law from a Policy Perspective, supra note 35 at 2; Reisman, Brief Encounters, supra note 35, at 39, 39-40.

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of daily conversation is the sanction, a communication accompanying the ought that indicates that the speaker or the community … is willing to invest something of value to see that the norm is followed … The distinguishing feature and sine qua non of a norm that is law is that it is deemed of sufficient importance for someone to expend personal effort and social resources to ensure that the behavior of others will conform to it.39

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F. Against the Focus on Adjudication A puzzling trait of twentieth century jurisprudence is its almost exclusive focus on the law created and applied by courts—more accurately particular types of courts, namely the supreme court(s) of a country. As Reisman puts it, “[l]awyers and legal scholars in our civilization tend to view judicial application as the paramount function in law.”40 This probably has to do with the unique path that legal education has taken since the second half of the nineteenth century in both the United States and England. Until that time, very few lawyers prepared themselves for the practice of law by attending law schools; the common route to becoming a lawyer was to acquire practical training by clerking for a lawyer. But around the second half of the nineteenth century, a group of lawyers, both in the United States and in England, came out with the then quiet revolutionary idea that academic education in the law ought to be made a prerequisite for the practice of law. Obviously, supporters of this idea, much like those engaged in the promotion of any other novel idea, had to meet the burden of persuading why the way things had been done up to then was not appropriate any more. They mobilized to their campaign therefore the concept enjoying the highest pedigree in Western culture in recent centuries—the concept of science. Law is a science, they claimed, and like all other sciences it needs to be studied at universities. But the association of law with science involved a heavy toll: if law was a science then surely it was not politics, the category antithetical to that of science. This in turn implied that the term “law” had to be confined to the law of the courts, to the exclusion of legislation, the law created by politicians in political arenas.41 There are exceptions to the focus of legal scholars on the law of supreme and high courts. Law and society scholars routinely study the operation of law in lower courts and in all kinds of tribunals; the operation of law in arenas such as state bureaucracies and law offices; and the legal consciousness of ordinary people. Legal pluralism scholars study manifestations of legality in various non-state contexts. And CLS scholars study the way law constitutes daily social interactions. Reisman’s jurisprudence is another noteworthy exception. “Judges’ roles are certainly important,” 39 40 41

Reisman, Brief Encounters, supra note 35, at 42, 43; see also id. at 54. Reisman, Political Superior, supra note 10, at 611. David Sugarman, The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science, 46 Mod. L. Rev. 102 (1983); David Sugarman, Legal Theory, the Common Law Mind and the Making of the Textbook Tradition, in Legal Theory and Common Law 26 (William Twining ed., 1986); David Sugarman, ‘A Hatred of Disorder’: Legal Science, Liberalism and Imperialism, in Dangerous Supplements: Resistance and Renewal in Jurisprudence 34 (Peter Fitzpatrick ed., 1991).

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he writes, “but, as an empirical matter, there are many other critical functions in legal decision. The specification of existing norms to a particular dispute, whether by courts, arbitrators, administrators, military officers, or whoever, and the resolution of the dispute, perhaps by fashioning some remedy, presuppose the prior authoritative establishment of norms.”42 Reisman suggests that this function of “prior authoritative establishment of norms” be called “prescription,” a term broader than “legislation”, which evokes a legislature: “so much of the corpus of critical norms in any social arrangement is created in private sectors and through so-called customary processes that use of the word ‘legislation’ would narrow the aperture of observation and miss a good deal of choice activity that is important in law.”43 In the same vein, focusing on the way lawyers routinely function, Reisman writes that “the lawyer is not only concerned with courts and their behavior, but with predicting and influencing a complex of formal, informal, organized, and unorganized decisionmaking agencies, groups and individuals which are, in fact, likely to have an impact on his client’s interests.”44 G. Criticism of Positivism: The Focus on the “Political Superior” Reisman rephrases and sheds new light on the disagreement between positivist and realist jurisprudence. Writing on John Austin’s positivism, he puts forth an interesting distinction between “political superiors”, those who self-consciously make decisions in the law, and “political inferiors”, the addressees of legal decisions.45 Reisman argues that the Austinian tradition in legal positivism—“the commanded’s theory of law” or “the subordinate’s theory of law”—focuses on “political inferiors” to the neglect of “political superiors.” In a similar vein, according to Reisman post-Austinian positivism views the conduct of “political superiors” as “political” and therefore as “non-legal.” It therefore disregards the conduct of political superiors and excludes it from its inquiry.46 Rather, having in mind H.L.A. Hart’s famous “rule of recognition,” Reisman notes that post-Austinian positivism “is almost obsessively concerned with how one identifies law or, in a phrase recurring in international legal inquiry, what comprise the ‘sources’ of law and, when they are inconsistent or contradictory, which of them is to receive priority.”47 Thus, the function of jurisprudence, according to this strand of thought, is to instruct “political inferiors” on when and how to comply with the commands of “political superiors.”48 In contrast, viewing law as a process of decision-making regarding the distribution of resources, Reisman suggests a focus on the conduct of “political superiors,” 42 43 44 45 46 47 48

Reisman, Political Superior, supra note 10, at 611-12. Id. Reisman & Schreiber, supra note 21, at 3. Reisman, Political Superior, supra note 10, at 616-17. Id. at 605. Id. at 606. Id.

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so that we devise a rich theory regarding the decision-making processes in which political superiors are involved.49 As I argued earlier, this focus on the political dimension of law invites an understanding of law as always the product of conflict and competitive processes in which various social and political groups struggle over the shaping of outcomes. H. Gaps, Legal Pluralism and Lies Roscoe Pound’s 1910 classic Law in the Books and Law in Action50 pointed out that in many instances a discrepancy exists between what the law says and law’s actual implementation. Following Pound, voluminous literature, known as “Gap Studies,” grew in the course of the twentieth century, aimed at identifying the many manifestations of and reasons for the recurring discrepancy between what the law says and the actual conduct of the world. Reisman adopts Pound’s great insight,51 but he gives it a new and radical twist: deviations from what the law says (Reisman calls this the “myth system”) do not amount merely to discrepancies between law and actual conduct. Rather, the deviant conduct itself (Reisman calls this the “operational code”) may amount to a normative system, a “law,” so that “we encounter two ‘relevant’ normative systems: one that is supposed to apply; … and one that is actually applied.”52 Based on his definition of law,53 Reisman therefore conflates the phenomenon of the gap and that of legal pluralism: The existence of the gap is not merely a matter of deviance; the law in action is “law” as well that operates beneath state law and in competition with it.

49 50 51

52 53

Id. at 607. Roscoe Pound, Law in the Books and Law in Action, 44 Am. L. Rev. 12 (1910). Reisman, Folded Lies, supra note 10, at 15-16 (“The picture produced by control institutions does not correspond, point for point, with the actual flow of behavior of those institutions in the performance of their public function: indeed, there may be very great discrepancies between it and the actual way of doing things.”); see also id. at 7. Reisman applies the notion of the gap not only to the level of the norms of the law; the gap may apply with regard to the institutions instrumental in determining the contents of the law: it is often the case that a discrepancy exists between “formal legal institutions” and “actually effective institutions.” Reisman & Schreiber, supra note 21, at 2. “[I]n many municipalities and organizations, in states and even in national politics, there are both formal institutions and effective ‘machines,’ i.e., informal institutions. The two are not always congruent.” Id. at 2-3. For example, formal documents may say that a City Council makes decisions. The fact of the matter, however, may be that “fundamental policy is actually made in a series of informal meetings taking place in country clubs, business lunches, periodic meetings of merchant associations and so on. The City Council, you may discover, really does no more than validate or promulgate decisions and policies clarified elsewhere.” Id. at 3; see also Michael Reisman, A Theory About Law From the Policy Perspective, in Law and Policy 79 (David N. Weisstub ed., 1976). Reisman, Folded Lies, supra note 10, at 16. See supra text accompanying notes 10-19.

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Thus, for Reisman the same activity may be governed by two competing normative systems. Some people would abide by the official state system. Others, however, the “connoisseurs,” usually those belonging to the elite, would not only act according to the deviant normative system that would tell them “when, by whom, and how certain ‘wrong’ things may by done;”54 they would usually also conceal their illicit activities and suppress all knowledge of their operational code while at the same time invest efforts in maintaining the integrity of the myth system.55 Also, the same person may at times act in accordance with the norms of one system and at other times in accordance with the norms of the other. Moreover, it might be the case that in a certain context, conduct would comply with neither of these two systems—actual behavior may be discrepant from both.56 As a result of this complexity, “determining the ‘law’ or the socially proper behavior in a particular setting necessitates a much wider social inquiry than the simple consultation of the formal law.”57 Roger Cotterrell recently suggested that it is important to keep separate discussion of the phenomenon of the gap and discussion of legal pluralism.58 Usually, this suggestion makes sense. But the radical move taken by Reisman shows that at times the divergent conduct may amount to a legality of its own, so that what we would otherwise regard as a gap would in fact amount to one more manifestation of legal pluralism. In doing that, Reisman not only demystifies the role played by state law in our lives; he also exposes the great complexity of the phenomenon of legality and further extends our understanding of it. I. Lies: Lex Imperfecta and Lex Simulata Reisman’s complex understanding of the phenomenon of legality, and his efforts at exposing the means employed by elites for concealing this complexity, are also manifest in his discussion of two types of laws, in addition to the distinction he makes between mythic and operational legality: lex imperfecta and lex simulata. The concept of “lex imperfecta” is well known. It refers to “laws without teeth,” namely laws that are devised in such a way that no remedy or sanction would be invoked following violation of a legal norm. Reisman writes that lex imperfecta is often “a conscious operator or elite design for dealing with aggravated myth system and operational code discrepancies.”59 The concept of lex simulata, which to the best of my knowledge is Reisman’s creation (and note that Paul Ricoeur presents the problem of “simulated” reality as the

54 55 56 57 58 59

Reisman, Folded Lies, supra note 10, at 1. Id. at 23-24, 28. Id. at 16. Id. at 35; see also W. Michael Reisman, Book Review and Notes, 76 Am. J. Int’l L. 868 (1982) (reviewing Oran R. Young, Compliance and Public Authority (1979). Roger Cotterrell, Ehrlich at the Edge of Empire: Centres and Peripheries in Legal Studies, in Living Law: Reconsidering Eugen Ehrlich 75 (M. Hertogh ed., 2008). Reisman, Folded Lies, supra note 10, at 29.

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one lying at the basis of the writings of the three “masters of suspicion,” Marx, Nietzsche and Freud), is a highly interesting one. Lex simulata is meant to perform a function similar to that of lex imperfecta. It is “a statutory instrument apparently operable, but one that neither prescribers, those charged with its administration, nor the putative target audience ever intend to be applied.”60 Lex simulata is not meant therefore to affect conduct. Rather, its function is “to reaffirm on the ideological level that component of the myth, to reassure peripheral constituent groups of the continuing vigor of the myth, and perhaps even to prohibit them from similar practices.”61 In the case of lex simulata, as in the case of any other legislation, writes Reisman, “the mere act of legislation functions as catharsis and assures the rank and file that the government is doing what it should, namely, making laws. Legislation here becomes a vehicle for sustaining or reinforcing basic civic tenets, but not for influencing pertinent behavior.”62 When one adds the concepts of lex imperfecta and lex simulata to Reisman’s distinction between the “myth system” and the “operational code”, small wonder that one reaches with Reisman the conclusion that “in law things are not always what they seem.”63 J. Microlegal Systems Reisman’s jurisprudence is comprehensive not only in that it is premised on the assumption that law is being made in varied arenas and through varied processes. The anti-positivist traits in Reisman’s jurisprudence, together with his definition of law as premised on a combination of authority and power, enable him to see law as being made and invoked in such varied contexts as the all-encompassing world arena, on the one hand, and microsocial interactions, on the other. Also, Reisman, who writes about lawyers as expert professionals operating in elite decision-making institutions, finds law also in the mundane, daily settings in which ordinary people live their lives. “The law of the state may be important,” writes Reisman, “but law, real law, is found in all human relations, from the simplest, briefest encounter between two people to the most inclusive and permanent type of interaction. Law is a property of interaction. Real law is generated, reinforced, changed, and terminated continually in the course of almost all of human activity.”64 Thus, as “social relationships cannot operate without law,”65 “[t]here are microlegal systems about looking at people, touching them accidently, standing in line, laughing in public, talking, and so on.”66

60 61 62 63 64 65 66

Id. at 31. Id. at 31-32. Id. at 32. Id. at 7. Reisman, Brief Encounters, supra note 35, at 2; see also id. at 8-10. Id. at 16. Id. at 40.

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Indeed, if for law to exist there should be a combination of authority and power, it is possible to see why there is law in microsocial interactions. First, as to authority, parties to such interactions share expectations that under the circumstances there is a right way of acting. Law does not require “expressly articulated codes,” writes Reisman.67 Moreover, norms that govern social interactions may not only be uncodified; it is often the case that they operate below the level of overt consciousness so that “the actors whose behavior is being influenced by those norms are unaware of knowing, acting on, and reacting to them.”68 An additional set of expectations that exists in microsocial interactions is that defections from the right way of acting “will lead to a common response among members of the microsituation that the defection was ‘wrong’.”69 This, in turn, “authorizes the injured party to respond in a way (otherwise impermissible) that may hurt or sanction the offending actor.”70 As to the requirement of power, Reisman maintains that enforcement mechanisms that subject norm violators to sanctions are at work in microsocial interactions. “Enforcement … does not require formal control by an authority,” he writes. “[S]anctions may be embedded in the situation and may be no more than symbolic approval or disapproval of something substantial, like money or time.”71 Reisman’s conceptualization of the legality of microsocial interactions is part of a growing interest in the role of law in the everyday experiences of ordinary people. This interest is manifest in the rise of the constitutive approach to law72 and the legal consciousness approach,73 as well as in a growing literature on the role of law in 67 68 69 70 71 72

73

Id. at 54. Id. at 10. Id. at 54. Id.; see also id. at 13, 39. Id. at 54; see also id. at 12, 39-40. See, e.g., Mark Kelman, A Guide to Critical Legal Studies 242-68 (1987); Justice And Power in Sociolegal Studies (Bryant G. Garth & Austin Sarat eds., 1998); Law in the Domains Of Culture (Austin Sarat & Thomas R. Kearns eds., 1998); Paul Schiff Berman, Telling a Less Suspicious Story: Notes Toward a Non-Skeptical Approach to Legal/Cultural Analysis, 13 Yale J.L. & Human. 95 (2001); Bourdieu, The Force of Law, supra note 24; Cotterrell, supra note 37; Gordon, supra note 20; Carol J. Greenhouse, Constructive Approaches to Law, Culture, and Identity, 28 Law & Soc’y. Rev. 1231 (1994); Naomi Mezey, Out of the Ordinary: Law, Power, Culture, and the Commonplace, 26 Law & Soc. Inquiry 145 (2001); Austin Sarat & Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, 13 Yale J.L. & Human. 3 (2001); Austin D. Sarat, Redirecting Legal Scholarship in Law Schools, 12 Yale J.L. & Human. 129 (2000); Naomi Mezey, Law as Culture, 13 Yale J.L. & Human. 35 (2001); David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 Stan. L. Rev. 575 (1984). Roger Cotterrell, Law, Culture And Society: Legal Ideas in the Mirror of Social Theory (2006); Patricia Ewick & Susan S. Silbey, The Common Place Of Law: Stories From Everyday Life (1998); Lawrence M. Friedman, The Legal System: A Social Science Perspective 1-24 (1975); Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture (1990); Roger Cotterrell, The

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everyday life.74 (From a larger perspective, the interest in the everyday may be seen as part of a growing interest in the topic in recent decades in many disciplines, such as anthropology, sociology and history. This interest is manifest also, among many others, in the writings of the Cultural Studies Movement;75 in Erving Goffman’s pioneering The Presentation of Self in Everyday Life76; in Pierre Bourdieu’s sociology of practice;77 in Ann Swidler’s understanding of culture as “tool kit”;78 and in the writings of Michel Foucault79). However, it is noteworthy that the constitutive approach, the legal consciousness approach, and studies of law in the context of everyday life are interested mainly in the role that state law plays in the everyday social interactions of people, i.e., in the way state law participates in shaping the way ordinary people perceive their social situations and their conduct in them. Reisman’s microjurisprudence is premised on a radically different move: he claims that legality per se is inseparably part of the social, so that it is impossible to properly understand the nature of everyday, mundane social interactions without accounting for the element of legality that is inherently embedded in them (even prior to deciphering the effects of state law on the structure of such interactions). In that, Reisman not only provides us with a fresh understanding of the nature of everyday social interactions; he also expands our understanding of the phenomenon of legality and of the reach of legal pluralism. II. Spiritual Exercise As mentioned earlier, in 2005 Reisman published a novel, Spiritual Exercise, under the pseudonym Deborah Shai. If Reisman’s jurisprudence is “a jurisprudence of suspicion” aimed at exposing the many layers of legality and normativity that exist under-

74 75

76 77 78 79

Concept of Legal Culture, in Comparing Legal Cultures 13 (David Nelken ed., 1997); Lawrence M. Friedman, Legal Culture and Social Development, in Lawrence M. Friedman & Stewart Macaulay, Law And Behavioral Sciences 1000 (1969); Lawrence M. Friedman, Is There a Modern Legal Culture?, 7 Ratio Juris 117 (1994); S.S. Silbey, Legal Culture and Legal Consciousness, 13 Int’l Enc. Soc. & Behav. Sci. (2001). Law in Everyday Life (Austin Sarat & Thomas R. Kearns eds., 1993); P. Ewick, Law and Everyday Life, 13 Int’l Enc. Soc. & Behav. Sci. 8457 (2001). Tony Bennett, Culture: A Reformer’s Science (1998); The Cultural Studies Reader (Simon During ed., 2d ed. 1999); Fred Inglis, Cultural Studies (1993); Jeff Lewis, Cultural Studies (2002); Graeme Turner, British Cultural Studies (1990); N. K. Denzin, Cultural Studies: Cultural Concerns, 5 Int’l Enc. Soc. & Behav. Sci. 3121 (2001); Richard Johnson, What is Cultural Studies Anyway?, 16 Soc. Text 38 (1986); Toby Miller, What It Is and What It Isn’t: Cultural Studies Meets Graduate-Student Labor, 13 Yale J.L. & Human. 69 (2001). Erving Goffman, The Presentation of Self in Everyday Life (1959). See e.g., Bourdieu, Outline of a Theory of Practice, supra note 24. Ann Swidler, Talk of Love: How Culture Matters 6 (2001). See Alan Hunt & Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (1994); Alan Hunt, Foucault’s Expulsion of Law: Toward a Retrieval, 17 Law & Soc. Inquiry 1 (1992).

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neath the “official” normative layer of state law, the novel is an attempt to unfold the dynamic between the high ideals to which we vow our allegiance and the actual normative situation that exists around us. Reisman portrays a bleak picture of the wide discrepancy that exists between declared ideals and their realization. The novel provides Reisman with the opportunity to emphasize and expand on some of the themes he has dealt with as a scholar, as well as to say some things he has not formerly said. The novel, for the most part, is a narrative account of Stephen Fomes’ two years in the early 1950s as fellow at the Parker Gallery—a small private museum outside Philadelphia that also serves as an art research institute. Fomes, in his late twenties, is a heartless, vicious, highly ambitious, highly opportunistic, and highly manipulative young man who will stop at nothing to promote himself and to destroy those he perceives as his rivals. At one point, Fomes’ conduct amounts to nothing short of rape. He also causes another fellow at the Parker Gallery to lose his job and be deported from the country. And if that is not enough, Fomes’ ruthlessness causes a young woman to take her own life. But above all, Fomes’ character is defined by his sinister mendacity. Lying and pretense are his way of being in the world; they define his existential condition. Fomes’ entire existence is premised on ceaseless lying and pretense. “I was exhilarated by the power of lies and the ecstasy of using them to destroy others without personal danger to myself,” Fomes testifies. “There was nothing to compare to it. The cold sense of exhilaration that comes from using that power doesn’t diminish after the deed’s done. It doesn’t drop off. It’s a high that goes on and on.”80 From early childhood Fomes had an obsession with masks. He collected them and often wore them in private. In public, he used lies and pretense as his masks. “Lies are masks. Masks are lies,”81 he explains and adds: “Everyone just sees your mask. You see them dealing with your mask and you deal with them through the mask but you have this secret inner life. And if you put the mask on right and you’re wearing it right, they never have an inkling of that inner life.” Stefan Fomes is just an extreme and distorted manifestation, however, of a fundamental trait of human conduct.82 Spiritual Exercise is replete with examples of lying and pretense on the part of “normal” people, those whose characters are not as pathologically distorted as Fomes’ character. Spiritual Exercise plays out, therefore, the dialectic of the patent and the hidden that recurs throughout Reisman’s scholar-

80 81 82

Spiritual Exercise, supra note 8, at 167, 224. Id. at 18. Id. at 19. Of course, to a certain extent lies fulfill important functions in our lives. As Reisman puts it in Fomes’ words: “Masks are manners. Etiquette. Courtesy. Masks are faces to meet the faces that you meet, routine greetings on the street, over the phone, on dates, in the store … Only stupid, ill-bred people don’t [use masks]. Like money, masks are the coin of everyday life. They make civilization possible. And by separating you from the others and letting you hide your real self, they make you possible. They let you have a real self.” Id.

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ship. Indeed, the specific topic of the part that lying plays in social life is a recurrent theme in Reisman’s scholarship as well.83 What is the source of the ability of persons to lie to other people and to manipulate them? Normal human beings manage to constantly maintain a buffer between their thoughts (much less their feelings) and what they share with and divulge to others. (Joseph, one of the protagonists in the book of Genesis, is a prime example of a person who suffered from the pathology of not being able to keep his thoughts for himself, which, in turn, led to major catastrophes in his life and in the lives of his kin). This, in turn, makes us constantly say things, in the course of social interactions, that we don’t mean and which we don’t think are true, just because we sense that saying these things will enhance our standing in these interactions. Lying therefore is a constituent element of what Pierre Bourdieu calls the human habitus,84 namely the dispositions that constitute our perception of the social interactions in which we are involved and that orient our action in them. The habitus, according to Bourdieu, makes us act in a non-reflexive manner, i.e., not by way of “following a rule,” nor by way of calculating possible risks and rewards, but rather by making moves according to a “feel for the game.” Thus, our ability to maintain a gap between what we think and what we say, together with our internalization and mastering of culture and language, make most of us involved in the practice of lying to an extent way beyond what we would be ready to acknowledge and admit. All of this means that the dialectic of the gap that is so pervasive in the law, and to which Reisman recurrently returns in his writings (e.g., the discrepancy between “law in the books” and “law in action;” the gap between the myth system and the operational code; the gap between a lex simulata and a lex imperfecta, on the one hand, and the true intentions of those who enact such laws, on the other)85 is also a constitutive element not only of the law, but, more generally, of the human condition. It is no coincidence that Reisman the legal scholar and Reisman the author both widely discuss this dialectic of the gap. Lying has many variations (a fact manifest in the dozens of terms we have for the various types of lying). One of the contexts in which human beings pervasively lie is that in which they perform roles on behalf of organizations. The twentieth century 83

84 85

See, e.g.: “Where there are discrepancies between myth system and operational code, elites … have a strong incentive to conceal those activities, acceptable under the code, and to maintain the integrity of the myth system.” Reisman, Folded Lies, supra note 10, at 23; “Politicians with heterogeneous constituencies sometimes feel obliged to lie or, put more delicately, to dissimulate, to conceal their objectives and, in some cases, the irrevocable steps they are taking to accomplish them.” Id. at 28; “Socrates extolled the ‘noble lie’ as an indispensable elite technique in his imagined Republic.” Reisman, Political Superior, supra note 10, at 608. See sources cited supra note 24. To all of this one should add that the law is a prime arena in which people constantly make arguments in the truth of which they don’t believe. We expect lawyers to develop on behalf of their clients the best arguments the legal culture allow, but that does not mean that we expect of lawyers to personally believe in the persuasiveness of the arguments they make.

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was the first time in human history that vast numbers of people began to function on a daily basis in organizations—first and foremost, state and business organizations. Organizations function through people (“organs”) who, in turn, are supposed to act for the best interests of the organizations that employ them (as these interests are defined by the organizations). Yet, as recognized by both administrative law (the ulterior motives doctrine) and corporate law (the agency problem), time and time again the decisions people take on behalf of organizations are motivated by ulterior motives that are meant to put the interests of the individual on top of those of the organization, or are taken in situations of conflict of interest (a sub-category of the category of ulterior motives). An extreme case of both ulterior motives and conflict of interest, one thoroughly investigated by Reisman,86 is that in which an individual makes a decision for an organization based on a bribe taken by the individual. Moreover, it is not only that human beings have the skills that enable them to lie. Playing on a theme widely discussed by Goffman, Reisman portrays human beings as having the ability to move between various personalities in varying social circumstances. Fomes illustrates this ability the morning after his job-talk: “The day before, I’d been the cosmopolitan and polyglot theoretician, completely at home in the European literature. Today I was the colloquial Americanist.”87 It is noteworthy in this respect that academics do not escape Reisman’s sharp and witty criticism. Universities, widely regarded, at least among their members, as institutions committed to the accumulation and propagation of truth, are presented in Spiritual Exercise as taken over by a culture of pretense and mannerism. “[B]eing right isn’t what it’s about,” says Fomes about the logic of academia. “The important thing is to do something new and entertaining.”88 It is in this vein that Fomes describes his behavior in the course of his job-talk as follows: “The control panel managing the lights and slides was simple enough, but I fussed that I was terrible with mechanical things. ‘Déformation professionelle,’ I murmured apologetically. ‘I live in the eighteenth century’ … I used the question period to demonstrate more scholarship and to reinforce, apparently spontaneously, the impression that I’d read even more books in their original French and German.”89 And I find it hard to resist citing the following passage, as well, which, I am sure, will sound familiar to many academics: “Talk’s important for me, because I’m not a real scholar. Most of what I know I picked up in conversations. … I’m a quick study. I hear something, and I’m off and running with it.”90 The dialectics of the patent and the hidden are played out in Spiritual Exercise in more ways than that of the dynamics of lies, pretense and mannerism. Thus, repeat86 87 88 89 90

Reisman, Folded Lies, supra note 10. Spiritual Exercise, supra note 8, at 30; see also Reisman, Folded Lies, supra note 10, at 133 (“The capacity to grow new personalities and loyalty systems”). Spiritual Exercise, supra note 8, at 22. Id. at 28. Id. at 33. Interestingly enough, the only person of academic merit in Spiritual Exercise is the one missing the required academic credentials and who is, therefore, ousted from academia.

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ing a well-known Freudian theme, the relation between sexual drives and culture is presented as one in which a thin layer of culture works at suppressing, controlling and channeling underlying turbulent sexual drives. Additionally, playing on a famous Marxist theme first set out in The German Ideology,91 Spiritual Exercise portrays a stratified class society in which the rich manage to determine central contents of culture so as to legitimize their control over society, promote their interests,92 and preserve and propagate their world-view.93 Reisman spells out, therefore, in unequivocal terms a point left somewhat ambiguous in his scholarship: true, law is always a combination of power and authority, but power is primary and authority is determined by it. Those having power at their disposal enjoy the benefit of being able to constitute a culture that cloaks their power with authority. Likewise, whereas Reisman the scholar presents decision-making processes taking place in the law as capable of promoting the general good, Reisman of Spiritual Exercise assumes that whenever decision-making processes of certain importance take place, they work out to the benefit of a powerful elite that not only marshals decisions favoring its interests, but also has at its disposal cultural-ideological mechanisms for giving these decisions legitimacy. It goes without saying of course that one of the arenas in which the rich regularly exert their excessive power is the marketplace. But in Spiritual Exercise, Reisman makes an important point: not only are the rich able to purchase more in the market; but the poor are sellers in the market of things that the rich never sell, namely their personality. For example, the poor need, at times, to sell their sexuality while the rich purchase it (or at least are never in the business of selling it). Thus, Stefan Fomes makes a career at the Parker Gallery not so much on the basis of his academic merit, rather, he provides the owner and manager of the Gallery, Margaret Parker, who is older than him by some ten years, with sexual services. “[S]he’d bought my body. She didn’t love me,” reports Fomes. “I was her property and had to do whatever she ordered.”94 But there is an interesting and thought-provoking twist in the story of Stefan Fomes. After Fomes’s death, some thirty years after the writing of Spiritual Exercise, the manuscript is discovered by Fomes’s literary executor. At the time of his death, Fomes was one of the most influential people in the American art world. More 91 92 93

94

Supra note 25. For example, tax reliefs are presented as “the upscale term for legal tricks rich folks use to evade taxes—without going to jail.” Spiritual Exercise, supra note 8, at 37. Reisman also plays on some themes developed by Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (Richard Nice trans., 1986); see also Elliot B. Weininger, Foundations of Pierre Bourdieu’s Class Analysis, in Approaches to Class Analysis 82 (Erik Olin Wright ed., 2005), e.g., that elites are constantly involved in expensive practices that are supposed to distinguish them from all other social groups, yet these non-elite groups constantly threaten to invade and appropriate elite social practices, a process which, in turn, drives elites to search for new practices reserved exclusively for them. See, e.g., Spiritual Exercise, supra note 8, at 58-59. Spiritual Exercise, supra note 8, at 173, 174.

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interestingly, and surprisingly enough, for many years before his death Fomes had been known as a considerate, generous, and scrupulously honest human being. How did this transformation happen? Fomes’s literary executor finds that Spiritual Exercise had been written in Venice, some time after Fomes’s term at the Parker Gallery ended, when he received instruction and became a Catholic. Thus, Spiritual Exercise was prepared for the Benedict priest who accompanied and instructed Fomes in the process of his conversion, the person to whom Fomes later on referred as “his father.” What does this transformation mean? The claim that secularization left modern persons without a coherent framework of meaning, a “broader vision,” as Charles Taylor puts it,95 is a recurring theme in the discourse of modernity, much like the claim that modernity’s neglect of substantive rationality contracted the world of modern persons to the realm of instrumental rationality (clearing the way for modernity’s great atrocities).96 Is Reisman a thinker that interprets modernity in such a way?97 Additionally, for many years now there is an on-going discussion of the means for insuring moral conduct of persons. Aside from varied means such as moral education that have been discussed in this context, it has been suggested that religion may have the effect of inhibiting deviant behavior.98 Is Spiritual Exercise to be read as Reisman’s suggestion that religion may serve as effective means for avoiding moral deterioration of persons and for rehabilitating the moral character of corrupt persons? Much in Reisman’s scholarship imparts profound acceptance of some of the most fundamental convictions of modernity, namely belief in the power of human reason combined with accumulated knowledge to control and steer social processes in ways that improve the well-being of human beings. But the fact that Stefan Fomes rehabilitated his crooked character by way of religious conversion cannot but raise the question whether in addition to his being suspicious of the patent manifestations of law and legality, Michael Reisman is also a thinker that while accepting the central thrusts of the project of modernity advises us at the same time to be suspicious of them, as well.

95 96 97

98

Charles Taylor, The Ethics of Authenticity 4 (1991); see also Charles Taylor: A Secular Age (2007). See, e.g., Zygmunt Bauman, Modernity and the Holocaust (1989). An affirmative answer to this question may be deduced, among other things, from the fact that in Spiritual Exercise Reisman devotes not an insubstantial amount of energy to refuting formalism in art, which, of course, should be read as refutation of formalism in law, and, I would add, also to a refutation of the “new legal formalism,” economic analysis of law. For review of the literature, see Colin J. Baier & Bradley R. E. Wright, “If You Love Me, Keep My Commandments”: A Meta-Analysis of the Effect of Religion on Crime, 38 J. Res. Crime & Delinquency 3 (2001). See also the sources cited in Jeffery T. Ulmer, Christopher Bader & Martha Gault, Do Moral Communities Play a Role in Criminal Sentencing? Evidence from Pennsylvania, 49 Soc. Q. 737, 738 (2008).

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Reisman’s scholarship exposes an explosion of normativity—the existence of normative systems in the broad gamut that lies between the all-encompassing world arena and microsocial situations, as well as in cases where gaps exist between what the law says and the actual conduct of legal subjects. Reisman also portrays, however, a world in which the powerful manage to have the upper hand and to cloak their privilege with authority, as well as a world in which a troubling gap exists between declared ideals and their actual implementation in the lives of human beings. Reisman’s jurisprudence is therefore a reminder that the mere fact of the existence of a normative system does not imply anything about the normative value of that normativity. Rather, any normativity needs to be constantly reviewed and evaluated according to criteria borrowed from some body of high ideals, such as the doctrine of natural law and the doctrine of human rights. Indeed, Reisman often argues in his scholarship that these doctrines should set ideals to be met, as well as to be invoked as criteria for evaluating extant systems of normativity. All of this makes Reisman’s jurisprudence even more ambitious and demanding. It is not only the case that lawyers need to attain extensive knowledge on the decisionmaking processes in which they are involved and on the societies their interventions are supposed to affect. According to Reisman, lawyers should also constantly look up to high human ideals, even if it is too often the case that these ideals fail to attain the place they deserve in our lives.

Chapter 11 Scholarship as Law Jan Paulsson

The cosmopolitan scholar as law-giver: an intriguing vision, but hardly new. Its distant past was glorious, and it never quite succumbed to the grip of the Westphalian mindset of territorialism and statist exclusivity. “The teachings of the most highly qualified publicists of the various nations” were acknowledged, in the words of Article 38 of the Statute of the Permanent Court of International Justice (adopted in 1920, and perpetuated in the Statute of the International Court of Justice), “as subsidiary means for the determination of rules of law.” These “subsidiary means” are hardly the poor cousins of international law. Where they come into play, they may, given the nebulousness of formulations to be found in treaties or in restatements of “custom” or “general principles,” be decisive. This may be even more true in the minds of judges and arbitrators than in their ink. Still, there is no doubt that the states who established the World Court operated on the premise that as long as they fulfilled their task of fixing the content of international law they would have the stage alone; there would be no reason for recourse to the opinions of scholars. Although the expansion of institutions of higher learning meant that an ever-growing “invisible college” of analysts and commentators stood ready to show the world where it should go, prescriptive authority belonged to jealous servants of states more inclined to co-opt scholars than to be influenced by them. Today we perceive the limitations of the Westphalian conception. Vast literature describes the modern diffusion of power through flows of finance, business, migration, and communications. One such study, by the notable Japanese business consultant and author Kenichi Ohmae, makes an observation which is profoundly relevant to the topic of this essay: “In some companies—and in most governments—there is a gap of more than a century between the cross-border realities of the external world and the framework of ideas and the principles used to make sense of them.”1 It is hard but necessary to accept the marginalization of centuries of political philosophy. Theories about the authority of the state surely continue to be relevant, but are ever 1

Kenichi Ohmae, The End of the Nation State: The Rise of Regional Economies, at viii-ix (1995). More generally, see Susan Strange, The Retreat of the State: The Diffusion of Power in the World Economy (1996).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 183-193.

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less adequate. Westphalia is not dead, and it would be dangerous folly to seek its total disappearance. Still, its frozen statism is an inadequate reflection of law in today’s world.2 This mindset is losing traction in favor of more pluralistic models. The pre-Westphalian world knew lengthy periods during which scholars unambiguously held sway as expositors of the law. It seems likely, I will argue here, that the importance of the scholar may, after a very long interlude, regain its historical luster. Let us pursue each of these two matters: first, the ambiguity of modern attitudes toward the scholar, and then the reasons for the great influence of scholars in older times. We can then consider whether our times are propitious for their resurgence. I. The Westphalian Ambiguity The Westphalian perspective was conveniently simple. The State was absolute; it alone decreed the law. The known world was neatly plotted and accounted for. International law was a mere semblance of law. It assumed its forms without having any of its true authority. This was so because no rule of international law would ever be opposable to any state unless it was positively embraced by that state. The contrast with citizens within states was stark. Yet the strength of this mindset is not to be explained by its mere convenience as a way of thinking. Rulers and their powerful servants found this system—the legitimation of political oligopoly—to be of vast assistance in their projects of aggrandizement. It should never be forgotten that for most of its existence the Westphalian world has consisted of but a handful of States and their dominions. More recently, former colonies acceding to statehood have produced leaders all too ready to seize the banner of sovereignty as a support for entitlement to personal power. But it should also be observed that scholars themselves, to different degrees depending on time and circumstance, have passionately supported the emergence of the sovereign State. Hegel viewed it as the highest level of attainment on the path from the starting point (primitive societies ruled by aimless despotism) toward the fulfillment of social development. This was not merely collectivist romanticism—although it was certainly that too3—but also a response to the specter of societies torn apart by con2

3

More than half a century ago, Wilfred Jenks, a scholar who spent four decades with the International Labor Office, ultimately heading it, was already writing that “contemporary international law can no longer be reasonably presented within the framework of the classical exposition of international law as the law governing the relations between States, but must be regarded as the common law of mankind in an early stage of its development.” C. Wilfred Jenks, The Common Law of Mankind, at xii (1958). As it has subsequently gathered momentum, this development may be more centrifugal than centripetal, as shall be seen below, but that only gives greater urgency to the scholar’s contributions. One of Hegel’s followers, Adolf Lasson, took this adulation to an extreme when he concluded his otherwise highly philosophical (and much derided) study, Princip und Zukunft des Völkerrechts, with a peculiar benediction of Reich and Emperor. See Adolf Lasson, Princip und Zukunft des Völkerrechts 116 (1871). This curiosity illustrates

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flicts among subgroups, indeed of anarchy. Volumes of reflections on social fragility, from Machiavelli and Hobbes onward, were distilled in Yeats’ indelible lines: “Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world.”4 Even the luminous theoretician of pluralism, Santi Romano, author of L’ordinamento giuridico, spoke of “a crisis of the modern State” caused by its vulnerability to disaggregating forces.5 He accepted all social groups as necessary progenitors of law; yet he viewed some of them with great misgiving. The natural tendency of states operating on the global scene is not to allow freethinking scholars to affect or impede the policy choices of states as the sole creators of international law. Yet, as seen, Article 38 of the ICJ’s Statute recognizes the contribution of scholars. A likely explanation lies in the fact that there appears to be an inherent limitation to the capacity of sovereigns for law-making by treaty. The process of treaty-making may be perfectly understood as a matter of form, but that by no means ensures that the bargain so made reflects enduring or emerging values of a community. Sovereigns have for innumerable generations entered into treaties as deals, without a common purpose—not even shared conceptions with respect to the very process of treaty-making. This tends to create considerable difficulties when issues of interpretation arise. Treaties so perfect that they do not require

4 5

the difficulties of separating general social theory from specific historical contexts. First of all, Lasson may be said to be a Hegelian, but that would put him in a large and motley crew, and whether Hegel would have claimed Lasson is a matter of speculation since Hegel died in 1831 and Lasson was not even born until the following year. Lasson has been accused of glorifying German imperialism. Princip und Zukunft was published in the wake of the Franco-Prussian war and the proclamation in Versailles of the German Empire. Yet Lasson believed that German unification was a guarantor of European peace, and that the German army was a “true popular army constituted for defensive purposes only” and subjected to the restraints of a “free constitution” based on individual selfdetermination. Germany’s “natural gravity” in the centre of Europe would contain the quarrels of the past. In this vein, Lasson developed a theory of international society as one where conduct cannot realistically be regulated on the basis of moral aspirations but only as the function of a balance of power among amoral states pursuing their interests. A “law” above states was, as Koskenniemi interprets Lasson’s thought, a “conceptual, historical and psychological absurdity.” Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960, at 33 (2002). Lasson could not have imagined the horrors of the twentieth century. The book was written forty years before World War I, and Lasson himself died in 1917. He had converted to Christianity from Judaism in 1858 (when he had changed his family name from Lazarussohn). W.B. Yeats, The Second Coming (1921). Santi Romano, L’ordinamento giuridico 27 (1918). Eight years earlier, he had published a speech entitled Lo stato e la sua crisi, Rivista di diritto pubblico 97 (1910), which has to my knowledge never been translated but (I have learned) is to this effect. Romano was deeply concerned by the usurpation of social power by groups wholly focussed on sectoral (or indeed sectarian) objectives, including powerful trade unions and corporazioni seeking power for their cartels. Romano did not want to lose the benefits of the superior organisation, that is to say the state, flowing from its capacity to ensure social unity, equilibrium, and harmony.

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interpretation—whether as a result of the simplicity of their object or the skill of their drafters—are conceivable, but reality suggests their utter rarity. A serious problem lies behind the disabused quip: “A treaty is a disagreement reduced to writing.” It may thus be impossible to resolve a controversy arising under international law without the guidance of doctrine. To weigh competing interpretations, decisionmakers are powerless without an understanding of the coherence and the priorities that are discerned, debated, and finally established by scholarship. Modern multilateral treaty practice may go some way toward establishing a more value-rich environment for understanding international law, but modern international life presents, as we shall see, factors that engender ever greater calls for the systemizing the contribution of scholars. II. The Scholar in the Pre-Westphalian World Before the emblematic year 1648, Europe knew a heterogeneous concatenation of laws and institutions, operating side-by-side in the same space with considerable friction, bereft of unified structures. Fuzzy unwritten customs, codified general customs, ecclesiastical and feudal laws, the lex mercatoria emerging from trade fairs, the resurrection of Roman law by influential scholars—all claimed decisive influence in a bewildering array of fora: royal and ecclesiastical courts, tribunals set up by city elders and manorial lords, itinerant arbitration developed by merchants, and the more uncompromising authority of guilds and minority religious leaders. The decisionmakers represented a correspondingly diverse sociological group: from kings and popes to burgers and barons; from especially trusted merchants to senior members of corporations and guilds. Rules of jurisdiction, and, more importantly, the substantive law to be applied, depended not only on the object of the disputation but also on the status of the persons involved in the case. It was common to find many different codes of customary law in force in the same kingdom, town or village, even in the same house, if the ninth century bishop Agobard of Lyons is to be believed when he says, “It often happened that five men were present or sitting together, and not one of them had the same law as another.”6

In this heterogeneous world, the contribution of great scholars to the systematic exposition of law (writ large), and thus naturally to its development, was remarkable. Institutio was what the Romans called textbooks, and two of the most famous in history were of course the Institutes of Gaius and Justinian. The glossators of Bologna revived the study of Roman law shortly before the beginning of the twelfth century; they assumed that the entire Justinian Corpus Juris was still valid law in medieval Italy.7 They assigned themselves the task of recapturing its meaning in a society which 6

7

John B. Morrall, Political Thought in Medieval Times 17 (1980), quoted in Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 378 (2008). Paul Vinogradoff, Roman Law in Medieval Europe 43 (2d ed. 1929).

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was no longer in the image of an imperial state. The members of the multitude of courts in medieval towns were generally laymen who could not match the learned doctors for erudition. Perhaps as important was the distrust in which local courts were held by the populace, especially in the area of criminal law. The Great Gloss of Accurcius (named for one of the teachers at Bologna who worked in the middle of the thirteenth century) sought to extract the conclusions reached in the course of 150 years of debates since the resumption of Roman law studies, and acquired an authority of its own, “not quite displacing the Corpus Juris but for most purposes treated in legal practice as in itself sufficient.”8 The central chapter on “Germany’s Commitment to Legal Science” in The Oracles of the Law, John Dawson’s rich history of European legal thought, leads to a series of conclusions under the subtitle “The Triumph of the Learned Men” in which the author observes that expert opinions (consilia) had been “the principal means by which the learning of the great doctors had been put to use in the law practice of late medieval Italy,” and that by the year 1600 forty-one volumes of consilia had been published by Germans trained in Roman law.9 In due course, the work of courts “was reported and mingled with the flowing stream of academic learning.”10 It may seem odd to suggest that all this went away in the wake of the Peace of Westphalia. After all, this was the world of Grotius and the other great names associated with his epoch. Theirs was undoubtedly a vast achievement, taming the beast of unbridled power, willful princes and potentates who recognized no more external restraint than do leaders of criminal associations. And so they conceived a new system of thought to show sovereigns that the achievement of their aims would be facilitated if they accepted a code of conduct: in effect the bylaws of a very exclusive club. International law succeed not by dint of national or moral persuasion, but because States saw that most of the time it was to their advantage to promote its acceptance, notably by creating barriers to the outbreak of costly and disruptive violence. There is no denying that this was of great benefit to the world, but it has very little to do with a jurisprudence of social values destined to inform the law of as it applies to ordinary human interactions. So we moderns might well look back on the “flowing stream” of cosmopolitan learning with more than a dose of nostalgia. Consider one voice speaking from the perspective of mid-twentieth-century experience. Manfred Lachs, the erudite Polish Judge at the ICJ who rose to its presidency in the 1970s, published only one book in English (apart from a monograph on a special area of interest, namely space law).11 It was called The Teacher in International Law.12 He wrote: 8 9 10 11 12

John P. Dawson, The Oracles of the Law 139 (1968). Id. at 196. Indeed Dawson’s chapter on the resurgence of Roman law in Italy also contains a subchapter similarly entitled “The Primacy of the Learned Men.” Id. at 138. Id. at 213. Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (1972). Manfred Lachs, The Teacher in International Law: Teachings and Teaching (2d ed. 1987).

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[I]t is worth reiterating how much is owed to those individual teacher-scholars who, in previous centuries set about the tasks which are now performed by commissions, by international organizations and international diplomatic conferences. Their acceptability to their contemporaries was doubtless variable, their influence sometimes unduly proportional to their confirmation of entrenched theories of State. But whenever they persuasively resolved some doubt about whether a given rule or practice could be viewed as law, they performed a most valuable service, lending authority to the rule and reassurance to those in the councils of State who would have their governments espouse it in the place, perhaps, of tactically more attractive advice.13

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Two elements of this passage merit particular attention. The first is Lachs’s matterof-course skepticism about the likelihood of “teacher-scholars” attaining influence unless they use their skills to confirm “entrenched theories of State.” The second is his assumption that the direction of the law is now to be established by “commissions, organizations and conferences.” We may have moved away from that skepticism, and if we have not, we should seek to overcome the corruption that explains it. And we may not readily endorse the assumption that diplomacy can replace the voices of independent scholars. III. The Resurgent Influence of Scholarship Of course scholars do have influence on ordinary, “municipal” law-making even within the context of the putatively all-powerful legal orders of states. Some orders seem more receptive than others. The tradition of dominant scholars appears undoubtedly to hold greater sway in Germany and France, say, than in England.14 The practice of case notes by leading academics in France undoubtedly influences the movement of la jurisprudence. Yet there is a vast difference once we leave the confines of the legal order of the state: the near-impossibility of correction, innovation, and even systematization by specific enactments of authorized law-making bodies. The gloom diffused through many of the pages of Martti Koskenniemi’s compendious work, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, may find its principal root in the period he was studying.15 This was a century when the states that dominated a Westphalian world ran a very tight ship, their individual willfulness tempered only by the need to make bargains, principled or not as they saw fit. That oligopoly of power has exploded, and we live in a world where power is distributed among an incomparably wider set of actors. We may say that 13 14

15

Id. at 211. See, e.g., William Twining, Ward Farnsworth, Stefan Vogenauer & Fernando Téson, The Role of Academics in the Legal System, in The Oxford Handbook of Legal Studies 920 (Peter Cane & Mark Tushnet eds., 2003). See Koskenniemi, supra note 3. True enough, the author wished to “finally do away with the image of late nineteenth- and early twentieth-century lawyers as ‘positivists’ who were enthusiastic about ‘sovereignty,’” but theirs were voices crying in the wilderness. Id. at 4.

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power is shared, when we consider the legitimizing features of the modern world; or we may say that it is fragmented when we are wearied by the seeming impossibility of mobilizing enough forces to move in the same direction of the common good. Either way, this is a new world in gestation. International society is transforming itself centrifugally with the emergence of subgroups where political and economic might often has little to do with formal attributes of sovereignty; the norms imposed by all types of organizations have far greater valence than the hollow proclamations of those who purport to speak in the name of the depressingly large number of institutionally deficient states; and international law itself is disaggregating into species of lex specialis coalescing around international subdisciplines defined by more or less autonomous subject matters, professional guilds, nomenclature, and—last, but not least—decision-making organs. This is beginning to look once more like a pre-Westphalian world that needs the voice of the scholar to make sense of itself. This hope does not lie in all forms of scholarship. Most current academic work continues to be characterized by the seeming desperate quest for positivist legitimacy, a fascination with the unprincipled and chaotic arrangements known as “state practice,” and a tendency to discover dubious normative patterns, which are little more than result-oriented restatements of the open-ended formulations that characterize so many international legal instruments. Faced with the lack of international institutional mechanisms to provide the routine regulatory function of resolving conflicts in the interpretation of broad treaties and incoherent customary law, much of modern scholarship has retreated into an impasse of pretence: that of an ostensibly value-free analysis of international rules leading to hollow and ineffective recommendations for compliance. The multiplication of international institutions is unlikely to benefit humankind when they are constituted by governments who simply do not represent their people; the result all too often remains a pro-sovereignty bias subservient to incumbent regimes and foreign-policy bureaucracies. The general dominance of governments in the selection of judges on international courts and tribunals often reinforces a type of jurisprudence in line with such doctrinal distortions. It is often astonishing to see how international courts and tribunals manipulate representations of malleable customary law all the while eschewing any reliance on scholarly writings, as though the former were somehow more “positive” than the latter. Of course this type of criticism can easily be carried too far, especially when it is unaccompanied by concrete and realistic suggestions for improvement. The point that matters is one which should not generate controversy: international law has become a kaleidoscope; the need for a systematic exposition is growing. In his celebrated course at the Hague Academy, Le droit international privé, droit savant, Bruno Oppetit, a subtle iconoclast, asked how it was possible to view the rules of conflict of laws as a purely formal matter with respect to which the decisive factor was their source in positive (and thus supposedly purely objective) enactments or pronouncements of State organs, with the consequence that:

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the object of the norms of conflict of laws resides essentially in the search for a way of approaching rules issued by different states in such a manner that they will be the least disharmonious for the private persons who are affected by them in international society.16

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Are we not thus missing the sources matérielles of norms, that is “the factors which influence the substance of law”?17 Oppetit proceeded to examine (and verify) the “preponderant role played by ideas and writers” in the creation of norms of conflict of laws, suggesting that law is not given but constructed. Oppetit’s observations pertained to an area of law which has been studied for generations and has been inherently propitious to the influence of scholars even in the Westphalian world, since the accommodations to be reached among sets of “sovereign” national laws were by their nature insusceptible to proclamation by nonexistent supranational regulators. Those accommodations could only be proposed by influential commentators who sought safe paths in a zone where the writ of positive law perforce loses its exclusivity. Today, we may observe, there are many such areas; still no supranatural regulators of law; and thus room for, and a need of, the insights and the systematic exposition of scholars. Oppetit naturally perceived, in what he referred to elsewhere as “this intrusive positivitism,”18 the reality that “the legislator dispossesses scholars of their role as guides and tends to confine them in the role of interpreters of his will,” leading to the “overspecialization of legal writing and the near-disappearance of disputation among authors reduced to striving to be the accurate reflection of positive law.”19 In the international field, the lacunae, overgeneralizations, and ambiguities of what passes for positive law incontestably leave far greater space for hesitation—and thus a far greater need for insights and normative representations. And this space is expanding. Considering the challenges and the achievements of the medieval “scholastic jurists,” Harold Berman, referring to the “sharply conflicting elements that coexisted and competed within the social structure” of the day, viewed their task as follows: To recognize the legitimacy of each of the contradictory elements (ecclesiastical and secular, royal and feudal, feudal and urban, urban and guild), and yet to recognize the structural unity of the total society (Europe, the West, Western Christendom) of which they were parts, and to find a genuine synthesis, that is, a way of dealing with the ambiguities and conflicts without destroying the autonomy of the factors that constituted them—that was the revolutionary challenge of the times.20

16 17 18 19 20

Bruno Oppetit, Le droit international privé, droit savant, 234 Recueil des Cours 331 (1992). Id. at 340. Bruno Oppetit, Théorie de l’arbitrage 24 (1998) (“ce positivisme envahissant”). Oppetit, supra note 16, at 364-65. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition 164 (1983).

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Using that historical “total society” as an analogue for the total society of our modern, globalized world, it is not difficult to see the parallels with the realities we face: “ambiguities and conflicts” which will remain intractable if we do not acknowledge the “autonomy” of the components of international society. In the absence of a World Parliament, truly ambitious—perhaps “revolutionary”—scholarship appears to offer a singular hope for the derivation of essential common principles. The influence of ideas—particularly new ideas—seems consistently underestimated, knowhow consistently overestimated. The latter helps us get through the day; the former guide our lives toward success or disaster.

* The topic of this essay was obviously inspired by the honoree of this collection, and it is natural to acknowledge him as a model of the influential scholar, a powerful voice whose authority has no weapons save those of reason, cogency, and depth of sustained analysis. Yet they may indeed be mightier than the sword. The day of celebration that has given the occasion for this volume has provided proof abundant of the breadth and depth of the Reisman influence. The formidable opus is there; I have no case to make. To read Reisman, or, even more fortunately, to have the privilege of dialogue with him, is to raise one’s aim, to search for the significant. Trivialities of habits of thought, let alone their manifestations in jargon, are soon left behind, given no weight whatsoever in the serious consideration of preferred outcomes—discovered by our observation, deserving of promotion. Consistency with one theory or another, or even less with artificial lexical discipline, matters little as we consider the true goals, the social goals, of our legal orderings. Meaningful scholarship means constant evaluation in a constantly changing world, a permanent process of communication rather than hopeless adherence to static prescriptions: the chimera of an “answer” at the end of a rainbow.21 All this we know about the Reisman opus; it needs no further exposition. Still, I take the occasion to make three incidental observations about matters that are modest in comparison to the whole of Reisman’s scholarship, but perhaps illustrative nonetheless. First, youth is no barrier to great influence; Nullity and Revision has often been referred to as “seminal” and that it certainly is—an astonishingly mature book by a 35-year old author.22 Our man was not a late bloomer. His scholarship in that great 21

22

Reflecting on the scholastic jurists who emerged from the European universities (and foremost Bologna) in the twelfth century, Harold Berman saw in their work “law as a prototype of Western science as defined by ‘methodological criteria, value criteria, and sociological criteria.’” See id. at 151. Among the “value criteria” he saw “a built-in assumption that science is an ‘open system,’” seeking “increasingly close approximations to the truth rather than final answers.” Id. at 156. W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and awards (1971).

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monograph put Reisman in the perfect position, eighteen years later, to address a near-calamity in the world of arbitration, namely what he was to call “The Breakdown of the Control Mechanism in ICSID Arbitration.” That was the title of an article he published in 1989, in which he analyzed the background and objectives of the unique annulment feature devised by the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States.23 There was no process by which this novel feature could be submitted to a central regulating authority for interpretation in light of the Convention’s objectives. The danger was that individual decisions might de facto create an “absurdity” and defeat “the very raison d’être of international arbitration.”24 A forceful, tightly reasoned piece of scholarship exposed the implicit “constitutive rulings” (as Reisman called them) of the troubling initial decisions, and suggested ways of “repairing the breach.” Practitioners can attest to the fact that there has been no greater force for the emergence of healthier “new generations” of decisions on applications to annul.25 Secondly, none of us can control what others make of our ideas—to the point of errant interpretations that take on a life of their own. My example will be Reisman’s gloss on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which was to posit that its intent was to institutionalize a dichotomy of primary and secondary jurisdictions, the first being that of the place of arbitration, the second being those of potential places of recognition or enforcement. His purpose, in Systems of Control in International Adjudication and Arbitration: Breakdown and Repair,26 was to provide greater security in achieving the objective of the New York Convention: to ensure that arbitral agreements and awards meeting certain minimum standards must be given international credence. He meant to show that enforcement jurisdictions had a juridical role to play, but it was secondary; if an award merited setting aside, this was subject to the sole authority of the courts of its place of origin; the enforcement forum has only a second-line role to verify that the standards of the New York Convention are met without adding any criteria of national coinage. The words primary and secondary appear nowhere in the New York Convention, yet they are now a staple of US federal courts’ account of their wobbly understanding of the Convention. It is a game of Chinese whispers gone terribly wrong.27 The whisperers, i.e. the successive drafters of judgments, listen only to the last utterance and never to the original speaker—that is, the basic text. And 23 24 25

26 27

See W. Michael Reisman, The Breakdown of the Control Mechanism in ICSID Arbitration, 1989 Duke L.J. 739. Id. at 788. See, e.g., CDC Group v. Republic of the Seychelles, Case No. ARB/02/14 (ICSID Dec. 17, 2003), Decision of the ad hoc Committee on the Application for Annulment of the Republic of the Seychelles, ¶¶ 34-37 (ICSID June 29, 2005). W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (1992). See Jan Paulsson, Case Note, U.S. District Court, District of Columbia, 17 mars 2006, TermoRio v. Electrificadora del Atlantico, 421 F. Supp. 2d 87, 2006 Revue de l’arbitrage 796 (2006); Jan Paulsson, Case Note, U.S. Court of Appeals for the District of Columbia

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so we now find that U.S. courts understand the New York Convention as requiring obedience to the primary jurisdiction as a matter of hierarchy, that is, no matter what it does, with the astonishing consequence of turning the Convention, by sheer inference, into a treaty for the enforcement of foreign court judgments dealing with awards—even with respect to countries with which there is no judgments treaty, even without a full review of the criteria of comity. This was precisely the defect—the monopoly of authority of the “seat” which imposed the need for wasteful double exequatur under the Geneva treaties of the 1920s—that motivated the framers of the New York Convention. It will, one supposes, take a truly egregious case—say, an award set aside because it was rendered by someone of the “wrong” gender or religious faith—to correct this misapprehension. Once launched, it seems, our insights can become unrecognizable even as they are propagated. Thirdly, unlike some other leading scholars, Michael Reisman has set a remarkable example of generous team play. Not for him the quest for undiluted credit. The countless examples of his co-authorships have—of course—only enhanced his reputation. These efforts may take on epic or minimalist proportions. As only one example of the latter, allow me to cite his collaboration with Mahnoush Arsanjani on a short essay which has, it seems, instantly found its way into the consciousness of international tribunals which decide disputes between states and foreign investors and which naturally are asked to pay great attention to the relevant conduct of officials: “The Question of Unilateral Governmental Statements as Applicable Law in Investment Disputes.”28 This is a rather special collaboration which one may reasonably hope will long endure.

28

Circuit, 17 mai 2007, TermoRio. v. Electranta, 487 F. 3d 928, 2007 Revue de l’arbitrage 553 (2007). W. Michael Reisman & Mahnoush H. Arsanjani, The Question of Unilateral Governmental Statements as Applicable Law in Investment Disputes, in Common Values in International Law: Essays in Honour of Christian Tomuschat 409 (Pierre-Marie Dupuy et al. eds., 2006).

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Chapter 12 Between Minimum and Optimum World Public Order: An Ethical Path for the Future Steven R. Ratner*

Among the most significant contributions of policy-oriented jurisprudence to our understanding of the international legal process is its identification of minimum and optimum world public order as the overarching goals of international law. Minimum public order in its essence refers to the global state of affairs with limited recourse to unauthorized violence to solve disputes, while optimum public order is synonymous with a world in which human dignity is maximally protected.1 These two concepts, augmented by other pairings now second-nature to us (for example, authority and control, and myth system and operational code), have also permeated—in the latter case, germinated in—the scholarship of Michael Reisman. From early writings on the legitimacy of sanctions against Rhodesia to more recent scholarship about the limits of self-defense or international criminal law, Reisman has been navigating the shoals of minimum and optimum public order, clarifying past trends of decision and offering prescriptions for norms and institutions that will advance both of these causes. The New Haven School did not merely identify two goals; it effectively set priorities for them. A world of minimum public order seemed to be the first priority. Indeed, the School’s founders termed it “indispensable to human rights.”2 Such stability in the international arena would pave the way for states, international organizations, and civil society to work together to promote human rights.3 Yet the relationship between these goals could never be that simple for at least two reasons. First, as * 1

2 3

I appreciate comments from Eyal Benvenisti, Allen Buchanan, and Monica Hakimi, and research assistance from Raphaelle Monty. Myres S. McDougal, Harold Lasswell & Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity 410 (1980). Id. at 236. In this sense, it is no coincidence that the McDougal/Lasswell project produced a major volume on minimum world public order in 1961, long before their famous volume on human rights. See Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion (1961); McDougal, Lasswell & Chen, supra note 1.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 195-215.

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practical matter, the project of minimum world public order remained and remains ongoing, so to expect such order—assuming one even knew it when one saw it—before advancing human dignity meant that the latter process would never get off the ground. Second, policy-oriented jurisprudence has always recognized that the two goals might be in tension—that some unauthorized coercion might indeed advance rather than impede a world order of human dignity. The linkages and balance between minimum and optimum world public order— between conflict prevention and human rights—thus are central to the New Haven School. Yet at the same time, the approach does not ask the full range of questions that need to be considered in knowing how to link public order and human dignity. How do we know, for example, whether minimum public order always advances optimum public order, and how do we decide which to favor if they conflict? To address these issues we must transcend not only policy-oriented jurisprudence, but law entirely, to the realm of political and moral philosophy. In that light, this essay seeks to uncover the linkages between minimal and optimal public order by exploring the ways that political and moral philosophy can contribute to the project that Reisman and his many colleagues and students seek to advance. In particular, it highlights various cosmopolitan traditions of global justice and explains how their analysis converges with and diverges from the approach of the New Haven School. I conclude with some thoughts for further inter-disciplinary scholarship along these lines. I. Public Orders in the New Haven School Framework For McDougal and his successors, law is a process for advancing policy goals in an authoritative and controlling manner; so once lawyers and other participants can identify the relevant goals of the community, we can begin a process of prescribing legal norms to accomplish these goals.4 Minimum and optimum public orders are the chief policy goals of the international legal process, the standard against which all outcomes of that process must be measured.5 The basic content of these two concepts was grounded in sociology (Lasswell’s great contribution to the endeavor) and instantiated in law. Minimum public order derived from the observation that human beings can best advance their individual and collective goals with minimal coercion and with a set of authoritative procedures for the deployment of force in situations when it is necessary. International law had set the basic terms of this process in the U.N. Charter, and in particular its centralization of the power to make war in the Security Council, coupled with the recognition of the inherent right of individual and 4

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Myres S. McDougal & W. Michael Reisman, The Prescribing Function in the World Constitutive Process: How International Law is Made, in International Law Essays 355, 368-69 (Myres S. McDougal & W. Michael Reisman eds., 1981). Siegfried Wiessner & Andrew R. Willard, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, in The Methods of International Law 47, 61 (Steven R. Ratner & Anne-Marie Slaughter eds., 2004).

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collective self-defense.6 The rules of international humanitarian law were also part of minimum public order. At the same time, the precise rules of international law that would contribute to such a minimum public order generated significant debate, including most notably over the scope of Article 51.7 The concept of optimum public order also originated in sociology, in that it was said to be the global order that allowed for maximal production and sharing of the eight base values identified early in the work of McDougal and Lasswell: respect, power, wealth, skill, enlightenment, rectitude, affection, and well-being. The move from elaborating the processes for promoting minimum public order to elaborating those for advancing optimum public order entailed a great focus on the importance of those base values; how they had been used or abused by governments and non-state actors to deprive individuals of their enjoyment; and how international law could be a vehicle for their deployment and their fulfilment. When push came to shove, though, and the two goals seemed to conflict, the New Haven School has offered less than a completely satisfactory answer. On the one hand, it has recognized—and insisted that the U.N. Charter did too—that human rights was just as important a goal for public order as prevention of conflict, offering a quick riposte to those governmental and scholarly advocates of traditional sovereignty-at-all-costs. Indeed, Reisman, in his controversial defense of the Panama invasion in 1989, presciently defined sovereignty as inextricably linked with human rights, a position that would later receive ringing endorsement from a U.N. SecretaryGeneral and at least a grudging acknowledgment by heads of state.8 This position led to his belief in a limited right of humanitarian intervention not only as lex lata but as de lege ferenda as a way of deterring coups d’etats against democratic governments.9 On the other hand, the New Haven School’s critical emphasis on context in gauging both the existing expectations of international actors and projecting future policies at times left us wondering whether more general recommendations could be made. Thus, in discussing the legality of amnesties, Wiessner and Willard note that the authority for amnesties “is context-dependent, it is never known, with specificity, in advance of a particular problem.”10 Reisman’s recognition of the legality of a limited right of humanitarian intervention by states acting without a Security Council man6 7 8

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U.N. Charter arts. 2(4), 41, 42, 51. For various academic views, see Albrecht Randelzhofer, Article 51, in The Charter of the United Nations: A Commentary 788, 797 (Bruno Simma ed., 2d. ed. 2002). W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866 (1990); The Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, ¶ 129 , U.N. Doc. A/59/2005 (Mar. 21, 2005); 2005 World Summit Outcome, GA Res. 60/1, ¶ 38, U.N. Doc. A/RES/60/1 (Sept. 15, 2005). W. Michael Reisman, Humanitarian Intervention and Fledgling Democracies, 18 Fordham Int’l L.J. 794 (1995); see also W. Michael Reisman, Acting Before Victims Become Victims: Preventing and Arresting Mass Murder, 40 Case W. Res. J. Int’l L. 57 (20072008) (reliance on Genocide Convention for obligation to prevent atrocities). Wiessner & Willard, supra note 5, at 60.

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date and his embrace of this possibility to preserve democracies was followed after the Iraq invasion with a warning about the dangers of regime change.11 And the New Haven School’s emphasis on human rights translated into support for humanitarian intervention to protect the Ibos in Nigeria, but not for secession in Bosnia.12 My point is not that these judgments are wrong—on the contrary, the analysis of context is generally so astute that the recommendations regarding future directions for the law are always worth considering very seriously. But the inherently sociological approach of the New Haven School—one might call it “fact-based international law”—that is its great strength can also at times be a weakness. I do not mean a weakness in the way that European doctrinalists have (very wrongly) criticized it—that it is not sufficiently binary and elides law observance and law violation.13 But it can be a shortcoming for those seeking more generalized guidance on the tradeoff between minimum public order and optimum public order. Without denying the importance of close scrutiny of the participants, perspectives, situations, base values, and strategies relevant to a particular set of competing claims, we can ask whether it is not possible to find some overarching principles of how international actors ought to behave that will supplement the sociological approach. At a certain point international actors making policy choices should be—or, as a descriptive matter of the process of authoritative decision, simply will be—guided by moral considerations as well. II. From Social Process to Ethics A. Complementary Inquiries Although the New Haven School never denied the role of morality in the development of international law—certainly human dignity is an inherently moral concept— it preferred to see morality through a more anthropological lens as simply the demands of the community relating to certain values.14 International law would reflect morality because it reflected the demands of the community as determined by their base values. Any other sort of theorizing for law was defective because it lacked social context.15 But those demands, even for a concept as morally significant as human dignity, cannot be transformed into legal norms, for minimum and optimum public order are simply too general as concepts to guide a process of prescription. We need instead to weigh those demands against each other and ultimately make critical 11 12

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W. Michael Reisman, Why Regime Change is (Almost Always) a Bad Idea, 98 Am. J. Int’l L. 516 (2004). Compare Michael Reisman, Humanitarian Intervention to Protect the Ibos, in Humanitarian Intervention and the United Nations 167 (Richard B. Lillich ed., 1973), with Remarks by W. Michael Reisman, 1993 Am. Soc’y Int’l L. Proc. 258-59. See, e.g., Gilbert Guillaume, Preface, 58 Me. L. Rev. 281 (2006). For a response, see Steven Ratner, Jeffrey Dunoff & David Wippman, ASIL President’s Column, July 6, 2007, http:// www.asil.org/ilpost/president/pres070706.html. See, e.g., McDougal, Lasswell & Chen, supra note 1, at 3-13. See infra note 41 on their reactions to Rawls’s project.

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choices in the prescription of law. This process requires some intervening stage of moral scrutiny. In this light, the central moral inquiry that complements the sociological approach and contributes to its key task of devising strategies for achieving optimum public order is the following: what ethical duties do we have to promote the human dignity of other individuals on the planet, both those on our territory and those abroad? Deriving these moral duties of individuals—and eventually moral duties on the state—is a critical component to prescribing law for states, as moral duties remain an important inspiration for legal rights and duties. This linkage of legal rules to moral rules remains the case, even though, as both positivists and legal realists (including policyoriented jurisprudence) agree, what we consider as law is a matter of social fact.16 Yet the question of the moral duties owed by the state to individuals is not one that lawyers alone can answer, for that is not what lawyers normally do. Lawyers can identify expectations, shape future preferences, devise and invoke the processes of institutions, and do many other things, but they rarely engage in rigorous ethical inquiry underlying the observational standpoint that they bring to the table. But that does not make ethics irrelevant to the lawyer. For lawyers are not mere engineers, tinkering with this institutional arrangement or that to advance some client’s interests. As Christian Reus-Smit writes, “international law [is] a crucial site within international society for the negotiation of practical and purposive norms.”17 So it is very much the business of international lawyers to ask ethical questions, because the arrangements they construct will reflect the ethical perspectives of the various participants, including the lawyers themselves. As we consider these duties, we will be able to ask and answer questions about international law that policy-oriented jurisprudence also seeks to answer: – What action is required, permitted, or prohibited, to carry out those duties? – If action is required or permitted, then who must or should act to carry out those duties? – If those designated to act fail to do so, then what shall be the consequences? The duties and questions that flow from them are also at the core of the issues so central to Reisman’s scholarship: humanitarian intervention, the responsibility to protect, self-defense, regime change, self-determination, and international humani-

16

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See H.L.A. Hart, The Concept of Law 198-207 (1961); Peter Cane, Responsibility in Law and Morality 12-16 (2002). Morality, even of a purely utilitarian nature, is not the only justification for particular legal rules, as, for example, problems of coordination rather than cooperation may produce rules that are not morally superior to other proposals but are nonetheless superior to no rule. On the role of moral views in judging, see Richard A. Posner, How Judges Think 94, 240-41 (2008). Christian Reus-Smit, Society, Power, and Ethics, in The Politics of International Law 272, 278 (Christian Reus-Smit ed., 2004); see also Kok-Chor Tan, International Toleration: Rawlsian vs. Cosmopolitan, 18 Leiden J. Int’l L. 685, 686-87 (2005) (“[Normative political philosophy can identify the fundamental norms that our global legal institutions should reflect.”).

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tarian law. Traditional international law is not oblivious to these sorts of questions, but the static concepts of opposability or obligations erga omnes (the latter of which human rights are said to be part) does not capture the myriad possible duties that participants in the international legal process may owe each other. B. International Justice and the Cosmopolitan Project Fundamentally, the moral inquiries decisionmakers need to make involve a search for justice at the global level. Philosophers interested in global justice ask whether, and if so, what sort of, duties are owed by various international actors to each other. These questions transcend interpersonal ethics by asking not just how humans should behave to each other, but how we can construct institutions at a global level that advance a certain understanding of those interpersonal duties.18 Work on global justice is as old as the classic philosophers, but has coalesced in recent years around essentially three approaches: (1) philosophers who see justice as a uniquely intrastate phenomenon and remain sceptical of global justice; (2) those who see justice in terms of a set of relationships and structures based on the idea of communities (for example, states or peoples) as the sole or key units of moral concern—communitarians; and (3) those who see justice in terms of a set of relationships and structures based on the notion of individuals as the sole or key unit of moral concern—cosmopolitans. Each of these positions now has a vast literature to accompany it, and each clearly maintains relevance for international law. Among the sceptics of international justice, the views vary from some political scientists who simply see no role for morality in international affairs to more subtle approaches that accept that international society should be governed by some rules but refuse to regard those as part of the project of justice. Thus, for instance, Thomas Nagel believes that duties of justice—in particular economic justice—based on equal regard for our fellow human beings can only arise in “a strong and coercively imposed political community,” which the international system clearly is not.19 At the same time, he acknowledges that some aspects of justice, such as basic human rights, do not depend on such associations, so a “minimal humanitarian morality” means that outsiders should be concerned about how a state treats its citizens.20 In Rawlsian terms, even if there is not at the international level an overlapping consensus on a political conception of justice, and interstate relations are instead based on a mere modus vivendi, it is still possible for states or individuals to have duties toward each other, for states to enter into agreements, and for law to emerge.21 But because these scholars are mostly concerned with explaining why the dignity of the individual cannot be the basis for elaborating duties of justice at the international level, their ability

18 19 20 21

See Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 Ethics 48, 50-52 (1992) (contrasting interactional and institutional conceptions of morality and justice). Thomas Nagel, The Problem of Global Justice, 33 Phil. & Pub. Aff. 113, 133 (2005). Id. at 126-27, 130-31. See John Rawls, Justice as Fairness: A Restatement 192-95 (Erin Kelly ed., 2001).

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to contribute to the challenges of moving from minimum to optimum world public order is limited. Communitarians bring somewhat more to the table insofar as they do not completely deny the possibility of some concept of international justice; they merely see it in terms of respect for various communities. Indeed, whether in the work of Michael Walzer or even Rawls’s attempt to derive a liberal foreign policy of just peoples in The Law of Peoples, communitarians do not give short shrift to individual human dignity; they rather see that dignity as defined by the community itself. For them, justice is about allowing for significant degree of toleration of diversity in order to allow communities to flourish and individuals to realize their goals in them. It is, in Walzer’s terminology, at best a thin conception of justice, to be contrasted with the thick notion that prevails within a community.22 Fundamentally they are willing to give a great deal of discretion to communities to organize themselves as they see fit, although they do set some limits when it comes to violations of the most basic human rights. Of the three approaches, cosmopolitanism has most directly engaged the possibility of international justice.23 Cosmopolitan scholars are committed to justice based on the equal moral concern for individuals everywhere, regardless of whether the individual is in one’s community or in another community. Human beings qua individuals, not as members of communities, are the sole or at least fundamental unit of moral concern. Yet various views of cosmopolitanism emanate from this agreed starting point. Philosophers disagree about the duties that flow from valuing all individuals equally—and in particular the source and range of our duties to those with whom we have special relationships compared to our duties to all people generally. Strong cosmopolitans believe in equal regard for all persons in determining all duties; any special treatment we give to those in special relationships with us (for example, co-nationals) is completely derivative of that equal worth and cannot be justified based on the relationship itself. Weak or moderate cosmopolitans argue that we have both general duties to all persons in the planet as well as special duties to those in certain relationships to us that are of independent moral significance; the latter, towards families or co-nationals, need not be derivative of general duties.24 Indeed, we might recharacterize all of the above positions as falling along a spectrum in responding to the fundamental question put by Brian Barry (himself a strong cosmopolitan): “[G]iven a world that is made up of states, what is the morally permis-

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See Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad, at xi (1994). As Miller writes, “‘[c]osmopolitan’ is probably now the preferred self-description of most political philosophers who write about global justice.” David Miller, National Responsibility and Global Justice 23 (2007). See Samuel Scheffler, Conceptions of Cosmopolitanism, in Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought 111, 11416 (2001). For a somewhat different definition of strong vs. weak cosmopolitanism, see Miller, supra note 23, at 27-31 (distinguishing between insistence on equal treatment of all persons and equal value to all persons).

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sible range of diversity among them?” 25 To rephrase somewhat, how much global diversity—in terms of various conceptions of and respect for human dignity—is consistent with global justice?26 Of the three camps I have identified, the first would reject the premise of the question; communitarians might accept the possibility of global justice but would argue that significant diversity, up to some limits, is at its core; and the third group would argue that global justice as a substantive concept requires limits on diversity, with the greater limits among the strong cosmopolitans (who, for example, tend to favor major wealth redistribution to address global inequalities).27 These theorists are also asking, fundamentally, whether we have one international community or multiple communities, and why.28 In addition to their focus on the limits of diversity, cosmopolitan approaches are characterized by the centrality of the concept of impartiality to their reasoning. In particular, a cosmopolitan morality is “based on an impartial consideration of the claims of each person who would be affected by our choices.”29 Cosmopolitans often argue over which sorts of duties at the international level can be defended as impartial. As a general matter, weak cosmopolitans accept the possibility, or affirmatively argue, that special relationships, such as those between nationals, can alone give rise to special duties. Strong cosmopolitans are much less willing to take this route, preferring that all special duties be derivative of the idea of equal treatment of all individuals. Both thus regard their approaches as impartial but differ on the basis for grounding disparate treatment. 30 Indeed, they may end up agreeing on the scope of some duties, as weak cosmopolitans do not insist that all special relationships give rise to special duties, and strong cosmopolitans may see certain special duties as fully justified based on the idea of equal treatment of the individual. Lastly, cosmopolitans differ not only in their views on special duties, but also in terms of the methodology for deriving principles of justice from the equal dignity of all individuals across the planet. Utilitarians such as Peter Singer will consider the sum total of human welfare with all individuals counted equally;31 deontologists such 25

26 27 28 29 30

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Brian Barry, International Society from a Cosmopolitan Perspective, in International Society: Diverse Ethical Perspectives 144, 154 (David R. Mapel & Terry Nardin eds., 1998). Cf. Tan, supra note 17, at 686. As an example of the latter, see Barry, supra note 25. Beyond philosophy, the so-called English School of International Relations, which is built on the idea of an international society, shares certain ideas of cosmopolitans. Charles R. Beitz, Cosmopolitan Liberalism and the States System, in Political Restructuring in Europe: Ethical Perspectives 119, 124-25 (Chris Brown ed., 1994). See Christopher Heath Wellman, Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun ‘My’?, 110 Ethics 537 (2000) (distinguishing between “reductionist” and “associativist” (or “nonreductionist”)); Brian Barry, Justice as Impartiality 191-95 (1995); Marcia Baron, Impartiality and Friendship, 101 Ethics 836 (1991) (on different levels of impartiality); cf. David Miller, On Nationality 53-55 (1995) (finding impartiality discussion confusing). See, e.g., Peter Singer, Famine, Affluence, and Morality, 1 Phil. & Pub. Aff. 229 (1972).

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as Allen Buchanan will start from premises of duties and rights;32 and contractarians such as Thomas Pogge will ask what sort of system would be agreed by a group of equally valued individuals.33 Each of these approaches can yield vastly different conceptions of international justice, and each can create sharply contrasting visions of the balance between minimum and optimum public order. III. International Justice, Cosmopolitanism, and Policy-Oriented Jurisprudence—Convergences and Divergences The preceding brief elaboration of approaches to international justice suggests the possibilities for many linkages between theories of international justice and international law. As noted above, understanding the scope of our moral duties to other individuals is a prerequisite for devising the requisite legal rights, duties, and responsibilities for promoting public order. Of the three approaches, cosmopolitanism’s direct engagement with international justice per se and its focus on the equal worth of the individual resonates most closely with the project of the New Haven School. Both cosmopolitanism and the policy-oriented approach seek to develop the criteria, rules, and institutions for a public order based on human dignity, even as the former derives these from first principles of morality and the latter from sociological observations. At the same time, policy-oriented jurisprudence does not demand (although it does not preclude) the sort of commitments that the strong version of cosmopolitanism places upon both individuals and states to guarantee various aspects of human dignity. Indeed, communitarian themes surface at times in Reisman’s scholarship, notably his concern about sovereignty belonging to the people of a state (although this is not inconsistent with a cosmopolitan vision either).34 The two key themes of diversity and impartiality discussed above also resonate with international lawyers, and the New Haven School’s search for optimum public order in particular. First, issues of diversity and toleration so central to international justice are also essential to international law. As Kok-Chor Tan writes, “in so far as we hope that international law does reflect our justice-based commitments, clarifying the limits of toleration can help to identify for us the range of international legal arrangements that can be described as just.”35 International lawyers constantly inquire as to whether new areas should be subject to global (or regional) regulation, and how much that regulation should preserve the flexibility of individual states to pursue their policy ends as they see fit. Second, cosmopolitans’ search for an impartial justification for moral duties is similar to the project of lawyers seeking to develop new norms. A duty enmeshed in the rule of law must be ultimately justifiable as impartial and treat all persons or states equally in some sense. Refraining from playing favorites 32 33 34 35

See, e.g., Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law 85-98 (2004). See, e.g., Thomas W. Pogge, Realizing Rawls (1989). See Reisman, supra note 8, at 872 (sovereignty as “the continuing capacity of a population freely to express and effect choices about the identities and policies of its governors”). Tan, supra note 17, at 686.

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does not require equal treatment for all states and individuals—but it does mean that they be treated as equals.36 So for those seeking a just world order grounded in law and institutions, partialist justifications will not pass muster. At the same time, the targets of inquiry of the international justice and policyoriented projects are not identical in several important respects. First, they differ sharply in their approach to the phenomenon of state power and its disparities. The New Haven School sees the diverse power of states, international organizations, and other actors as a variable that must be considered front and center as both a constraint upon, and instrument for, the promotion of human dignity; as Reisman writes, “lawful acts, to be such, will require a minimum degree of effectiveness.”37 Policy-oriented scholars disagree significantly on different aspects of the relationship between authority and control, including the role of centralized mechanisms of enforcement compared to individual state action, but still see power as essential to law’s effectiveness and ultimately its existence.38 Cosmopolitans (and many other philosophers as well) tend to see norms and law in opposition to power (just like political realists reject the relevance of morality in a world governed by power). Theorizing seeks to find the grounds by which states or international institutions can exercise political power rather than take that power as a given.39 At the same time, international justice theorists often concede power’s importance in making particular recommendations for non-ideal theory. Andrew Hurrell, of the English School of political science, which shares certain basic premises of cosmopolitanism, expresses both the distaste for power and the ultimate need to engage with it when he writes, “the aspirations of [a] normatively ambitious international society remain deeply contaminated by power and … the normative theorist can only ignore the persistence of this structural contamination at the cost of idealization.”40 Second, scholars in the policy-oriented perspective (including this author) have tended to give far less attention to problems of global distributive justice than philosophers. The latter’s fascination from this issue stems from the vast debate surround-

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Ronald Dworkin, Taking Rights Seriously 227 (1977). W. Michael Reisman, Law from the Policy Perspective, in International Law Essays, supra note 4, at 1, 7; see also W. Michael Reisman, On the Causes of Uncertainty and Volatility in International Law, in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity 33, 48 (Tomer Broude & Yuval Shany eds., 2008) (“Normative arrangements require power to support and implement them.”). For insightful comparisons between McDougal and Falk in this regard, see Rosalyn Higgins, Policy and Impartiality: The Uneasy Relationship in International Law, 23 Int’l Org. 914 (1969) (reviewing Richard A. Falk, A Legal Order in a Violent World (1968)). For Higgins’s further views, see Rosalyn Higgins, Problems and Process: International Law and How We Use It 3-7 (1995). See, e.g., Buchanan, supra note 32, at 299-327. Andrew Hurrell, International Law and the Making and Unmaking of Boundaries, in States, Nations, and Borders: The Ethics of Making Boundaries 275, 284 (Allen Buchanan & Margaret Moore eds., 2003).

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ing the possibilities for extending Rawls’s difference principle from A Theory of Justice to the international realm. The subject has dominated ethical thinking regarding international relations for thirty years, with strong cosmopolitan scholars taking the lead in arguing for global distributive justice. Nothing in the framework of the New Haven School presents an obstacle to considering problems of distributive justice, even if McDougal was highly critical of Rawls’s philosophical and thus anti-empirical approach.41 Whether as a result of the hostility of the founders of policy-oriented jurisprudence or the general reluctance of U.S. legal scholars to discuss questions of economic justice (as opposed to narrower questions of the contours of economic and social rights set forth in treaties), the gap between the New Haven School and international justice theorists remains significant on this front. Third, and most critically, cosmopolitan scholars spend a great deal of their efforts, whether in debates between the weak and the strong versions, or in their debates with communitarians, on the underlying basis for the idea of an international community. For justice is viewed by many philosophers as a concept that governs those within some kind of community, whereas relations based on mutual interest alone—a modus vivendi—cannot ground duties of justice (though they can ground other duties). Thus, significant argumentation takes place on the question of whether, and if so what sort of, interactions among states and individuals at the global level can create the international equivalent of Rawls’s basic structure and whether such a structure is needed to generate duties of international justice.42 The policy-oriented school, like other approaches to international law, assumes the existence of some kind of international community—the world community—by virtue of the shared interests and interactions of global actors, factors that might fall short for philosophers as a basis for duties of justice.43 International lawyers would not deny that other communities exist alongside the global community and thus see no need to question the idea of special duties to one’s co-nationals. In this sense, international law as a field is consistent with a moderately cosmopolitan vision of international justice insofar as it does not actively oppose the idea of national ties per se as creating special duties. This difference in focus is indeed precisely wherein the advantage of ethical inquiry lies for international law. For international law’s assumption of—rather than an argument for—an international community, and the resultant lack of interest in addressing why we should have international duties to others, perpetuates the lack of guidance on moving from minimum to optimum public order. Each different ethical theory of the origin, nature, and scope of international duties will affect the choices we make proposing international duties that navigate between minimum and opti41 42

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McDougal, Lasswell & Chen, supra note 1, at 454 n.9, 459-60 n.23. For example, Charles Beitz originally said that trade alone could create a community in which each member owed the others duties of justice, but later backtracked on this idea. Charles Beitz, Cosmopolitan Ideals and National Sentiment, 80 J. Phil. 591, 595 (1983); see also Buchanan, supra note 32, at 83-85. The New Haven School founders did not quite assume its existence, but regarded it as an anthropological fact rather than a moral question. See McDougal, Lasswell & Chen, supra note 1, at 88.

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mum public order. To demonstrate this necessity and the consequences for international law of different approaches to deriving moral duties, I now turn to an area of law not extensively considered by the policy-oriented school but highly important in contemporary international law. IV. Fitting Ethics In: The Case of Extraterritorial Duties Regarding Human Rights The scope of a state’s duties under international human rights law to those persons not on its territory has lately become one of the key issues in international law. From the jurisdiction of the European Court of Human Rights over NATO action over Belgrade or in Iraq, to the conduct of the United States toward those it has captured abroad—or targeted for killing—in the name of combating terrorism, to Israel’s construction of the separation barrier in the West Bank, those harmed by the conduct of governments beyond their territory have invoked human rights law to bolster their claims and seek redress. Human rights NGOs and many scholars, backed by the views of some U.N. bodies as well as the International Court of Justice, have argued for the extraterritorial application of various treaties; states, led by the United States in numerous public statements, have been far more reticent, with the European Court of Human Rights treading carefully between the two.44 The lines are essentially drawn between those who see the corpus of human rights law, and thus states’ duties under it, as extending to all situations when a state infringes upon a human right and those who view both the treaties and custom as limiting the scope of a state’s obligations to those on its territory. Each of the many methods of international law will have its approach to addressing this important problem.45 Positivists will focus on principles of interpretation of treaties and black-letter rules for the derivation of custom. Policy-oriented jurisprudence’s comparative advantage lies in its explicit consideration of all the contextual factors related to this issue, so that observers and policymakers are able to see the full complexity of the problem. Their conclusions would likely highlight the reasons states may have originally agreed on a territorial approach to human rights; the various ways in which states may act beyond their borders; the practical effect on standards of human dignity of extending such duties extraterritorially; the consequences for interstate relations and minimum public order if states were assumed to have various duties to those beyond their borders; and the consequences for the human rights enforcement if the state was held to have duties beyond its borders. Such a careful appraisal could be accompanied by prescriptions for how to interpret existing treaties as well as the directions for future law development. As the New Haven School has recognized, it is likely that each evaluation of the problem and solution will be influenced by the observational standpoint of the relevant participant. So it 44

45

See Nicola Wenzel, Human Rights, Treaties, Extraterritorial Application and Effects, Max Planck Encyclopedia of Public International Law, http://www.mpepil. com. See generally The Methods of International Law, supra note 5.

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should not surprise us that states and human rights NGOs disagree on the meaning of texts and custom. But a richer analysis of the problem requires that we return to the original question above—what are our moral duties to individuals at home and abroad—with a particular focus on the permissible bases on which a state may distinguish its duties among various classes of individuals. What, in essence, are the general duties of a state—owed to all individuals—in the area of human rights, and what and toward whom are its special duties, owed only to some? Many philosophers would accept that individuals in state A have some duties to those in state B, but they would disagree on the grounding of those duties, whether they are duties of justice or some other kind of duties, and the consequences that flow from such duties for state A itself in its relations with state B. Indeed, when viewed from the perspective of general and special duties, it becomes clear that the lawyer’s problem of extraterritorial duties related to human rights is actually part of a broader issue about two sets of duties. Most lawyers are really only considering one of them, while philosophers have only been considering the other. When lawyers talk about extraterritoriality of human rights obligations, they are concerned with (1) the duties triggered when a state decides for whatever reason to take action beyond its borders. These duties include the duty to refrain from torture or disappearances when undertaking counter-terrorism operations, or to guarantee certain rights to people under occupation. Philosophers have, however, focussed on a different set of extraterritorial duties—namely (2) the duties by a state to initiate action outside its borders to protect or assist persons abroad. These obligations range from duties to aid foreigners in attaining a decent diet to duties to help them in overthrowing a genocidal regime.46 Whereas the first focuses on the obligations on a state to protect individuals once it acts abroad, the second set of duties addresses the moral trigger for action to help individuals abroad in the first place.47 Lawyers have certainly addressed the second question, but generally as a separate inquiry—in the doctrinal boxes of jus ad bellum or non-intervention—rather than part of the problematique of extraterritorial human rights duties.48 But they ultimately come back to the scope of the duties of the state to foreigners and thus cannot be separated. In that light, because philosophy has asked what I consider the more fundamental questions about (at least some) extraterritorial duties, I here examine their contribution to the overall debate over extraterritorial duties related to human rights.

46 47 48

I appreciate this critical distinction from Allen Buchanan. As discussed below, these do not map onto the distinction between so-called positive and negative duties. One exception would be work on the territorial scope of a state’s duty to respect various economic, social, and cultural rights, which address questions about the duty to act abroad through the lens of extraterritorial human rights protections.

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Philosophical approaches skeptical of global moral duties could take a number of positions about extraterritorial duties related to human rights. One view would emphasize the lack of one international community and argue that at best states co-exist in a state of modus vivendi. So whatever duties best preserve that modus vivendi are worth pursuing and those that undermine it are not. The modus vivendi, rather than any conception of international justice, undergirds international law’s duties that states not use force against each other and not intervene in each other’s internal affairs. While they might accept that individuals have moral duties to those abroad, any duty of a state to those abroad must not undermine those two key inter-state duties and the modus vivendi. Thus, duties by one state to ensure that those abroad gain their right to vote or their right to food—the second category above—would be rejected, unless perhaps if such duties were conditioned upon a request of the host state. Humanitarian intervention would seem to be generally off limits. On the other hand, they might well accept that a state cannot impinge on the human rights of individuals in another state when acting abroad—the first category above—since it would upset the modus vivendi. They might argue that such a duty would not apply if the target state itself consented to those violations, although perhaps consent would not affect the most basic rights against ill-treatment. Such a view of the two sets of duties is consistent with the overall goal of preserving the modus vivendi. It also views human rights obligations as essentially interstate; it downplays the idea that individuals are themselves the holders of human rights to whom states have a duty.49 B. Communitarianism Communitarians would also be unwilling to envisage too many extraterritorial duties by states regarding human rights. But their reason is not the need to preserve the modus vivendi, but to preserve the autonomy of other communities. Because communities define individuals and their dignity, their autonomy deserves significant respect. The state will thus have numerous duties to those on its territory; as Walzer says, an individual’s “right to place” means that “[t]he state owes something to its inhabitants simply, without reference to their collective or national identity.”50 Indeed, his emphasis on territoriality extends to a claim that the state has a duty to grant political asylum to oppressed people from other lands who make it to the state, though he cautions against extending this principle to requiring the grant of asylum

49

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On the distinction between the duties of beneficiaries of rights vs. rightsholders, see H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Rev. 175 (1955). See also Steven R. Ratner, Is International Law Impartial?, 11 Legal Theory 39, 60-61 (2005) (human rights treaties based on states as holding rights and individuals as beneficiaries). Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 43 (1983).

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to all those oppressed abroad as the state “might be overwhelmed.”51 But our moral duties to individuals abroad are limited by the need to respect the autonomy of communities. As a result, communitarians might well favor a duty of the second kind to aid states that are victims of conquest by other states (or are likely to be) and have thus lost their autonomy; but they would refrain from any duty to object to a state’s internal practices short of gross human rights violations.52 Rawls adopts a similar position in The Law of Peoples with his emphasis on the need for liberal states not merely to respect each other, but also to respect other “well-ordered peoples,” by which he means so-called decent hierarchical societies, or semi-authoritarian states that respect the most elementary of human rights and act responsibly abroad.53 At the same time, with respect to societies that are not in these two categories, he advocates stronger extraterritorial duties. He argues that “[w]ellordered peoples have a duty to assist burdened societies,” namely those communities that “lack the political and cultural traditions, the human capital and know-how, and, often, the material and technological resources needed to be well-ordered.”54 Rawls himself focuses on the need for economic assistance to get these states to the point of being well-ordered. But he seems reluctant to argue for further interference in their internal affairs, since the goal, as for Walzer, is “the political autonomy of free and equal liberal and decent peoples.”55 The skeptics and the communitarians thus differ on the scope of the duty to act ab initio (the second set of duties above). Part of this difference stems from a willingness by the latter to engage with the question of whether the government really speaks on behalf of the community at all and thus whether its consent is necessary and sufficient to preserve the community’s autonomy, a question that those concerned with preserving a modus vivendi among states would not find relevant. At the same time, they might well agree on that a state has significant duties in the first category above, that is, when it acts abroad—that it cannot then violate the rights of persons inside another community. Some communitarian approaches would even question the morality of the status quo in human rights law, under which a state’s duties to individuals apply to all on its territory, with few duties limited to citizens alone.56 Andrew Mason offers his own 51 52 53 54 55 56

Id. at 51. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations 53-63 (2d ed. 1992); Michael Walzer, On Toleration 21-22 (1997). John Rawls, The Law of Peoples 59-85 (1999). Id. at 106 (emphasis in original). Id. at 118. The key examples are (1) a state’s duty to allow individuals to participate in public affairs is limited to citizens; and (2) a state’s duties to respect an individual’s economic, social and cultural rights allow developing countries to opt out of granting such rights to nonnationals. See International Covenant on Civil and Political Rights art. 25, opened for signature Dec. 16, 1966, 99 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights art. 2(3), opened for signature Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR].

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version of a state’s duties based on the idea of citizenship as an intrinsically valuable good. He rejects cosmopolitan stances (in particular those of Robert Goodin and Allen Gewirth) that justify duties only to residents, but he also rejects theories that limit duties only to members of the nation, both of which are distinct from citizens.57 His and others’ embrace of the need to justify special duties to compatriots is based on their perceived need to find a moral basis for the common-sense pull of ties based on citizenry. Presumably their only response to the existing legal order under international human rights law, which is territorially based, is to find it irrational or immoral. For one who questions whether a state has duties to all those on its territory, the notion of extraterritorial duties to foreigners would be, in a sense, doubly absurd. C. Cosmopolitanism Among cosmopolitan approaches more open to the idea of global duties based on the equal worth of the individual, the optimal scope of extraterritorial duties would vary across and within different versions of cosmopolitanism. A strong cosmopolitan perspective based on a utilitarian calculation, such as Singer’s, would weigh the utility to all individuals of requiring states to guarantee various human rights abroad against the costs. He might find the benefits to individuals outweigh the costs with respect to some duties related to human rights, for example, the duty to provide food to the needy.58 Robert Goodin, in an influential article, offered a richer explanation for the special duty of a state to its residents that is consistent with strong cosmopolitanism.59 All duties regarding others are general, but states represent an efficient way of dividing up the globe to allocate who should carry out those duties. States with effective control over individuals, rather than some other state, have special duties to those people because they are in the best position to ensure respect for their rights. Thus, for example, the control by the Japanese government over Japanese territory puts it in the best position to ensure that criminal defendants there receive procedural guarantees. (This position can also be contested; perhaps effective control over a population does not put the state in the best position to guarantee all rights, for example, in the case of impoverished states.) But at least as an initial matter, we will place the duties to protect human rights only on the territorial states. Goodin then argues that one state does another harm when it “inflict[s] injuries on their [that is, the latter’s] citizens,” but “ordinarily no state has any claim against other states for positive assistance in promoting its own citizens’ interests.”60 57 58 59

60

See Andrew Mason, Special Obligations to Compatriots, 107 Ethics 427 (1997). See Singer, supra note 31; see also ICESCR, supra note 56, art. 11 (right to “adequate food”). Robert E. Goodin, What is So Special about Our Fellow Countrymen?, 98 Ethics 663 (1988). Walzer echoes Goodin’s efficiency rationale in noting that “so many critical issues … can best be resolved within geographic units.” Walzer, supra note 50, at 44. Goodin, supra note 59, at 682. “Ordinarily” because Goodin recognizes the possibility that through treaty a state could agree to protect noncitizens beyond its borders. See id. at 670.

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Goodin thus draws on the distinction between a state’s negative duties, that is, not to impinge on the negative rights of individuals (for example, not to torture foreigners) and its positive duties, that is, to guarantee positive rights such as the right to food, suggesting that a state’s negative but not positive duties are extraterritorial.61 The notion resembles international law’s understanding that territorial sovereignty imposes duties on a state not to cause harm to other states (and their nationals) on that territory or abroad—a point developed by Reisman in discussing (two years before September 11) a state’s duties regarding terrorists on its territory.62 Territorial sovereignty per se does not impose duties to aid other states (although it may impose certain positive duties of the state toward its own citizens). At the same time, this approach to duties to those abroad has flaws as a matter of both law and ethics. Legally, the line between positive and negative obligations is not firm: the (positive) duty to provide a fair trial is part of a (negative) duty not to treat someone arbitrarily; and the (negative) duty not to torture requires the carrying out of the (positive) duty to train police. Philosophically, it is not clear that negative duties are more important, or that it is more realistic to expect individuals and states to act on negative duties but not positive ones. Singer and Thomas Pogge, for example, have argued that our and our state’s duty to help the starving person around the globe is no less important than our state’s duty not to conduct an extraterritorial execution. Pogge in particular emphasizes that each of us as individuals are responsible for global inequities that he claims have been caused by the international institutions we have set up.63 From this perspective, Goodin’s division of labour is itself a function of the resources of international institutions; robust international organizations could enable states to have or act on positive obligations as well. This stronger cosmopolitanism has little room for the positive/negative duties mentioned by Goodin. Goodin, like most philosophers, focuses on the second set of duties noted earlier, that is, duties when to act abroad. As for the lawyer’s concern with duties triggered when a state acts abroad, the negative duties he favors would seem to apply a fortiori when a state is harming another state’s citizens on the latter’s territory, suggesting at least some significant extraterritorial duties of this kind. Indeed, legal scholars have adopted a similar line for determining which duties regarding human rights a state assumes when it acts extraterritorially.64 However, Goodin’s initial opposition to positive duties to act abroad need not translate into a similar opposition to such duties once the state acts abroad. Thus, for instance, it would be reasonable to claim 61 62 63 64

Id. at 667-70. See W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l L. 3, 51 (1999) (relying on the Island of Palmas and Lotus cases). See, e.g., Thomas W. Pogge, Human Rights and Global Health, in Global Institutions and Responsibilities 190, 201-07 (Christian Barry & Thomas W. Pogge eds., 2005). See John Cerone, Jurisdiction and Power: The Intersection of Human Rights Law & the Law of Non-International Armed Conflict in an Extraterritorial Context, 40 Isr. L. Rev. 72 (2007); Orna Ben-Naftali & Yuval Shany, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17 (2004). Legal scholars tend to put significant emphasis on the degree of control that the state has over the individual.

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that states lack a duty to aid other states as a general matter and still accept that, when a state acts abroad (for example, the United States in invading Iraq), that action triggers certain positive duties to aid the citizens of that country. From his perspective in which control over territory is critical for determining a state’s duties, a state that occupies foreign territory would likely have various positive duties to aid the population. David Miller engages the issue from the perspective of a weak cosmopolitan approach that accepts the intrinsic value of relationships among co-nationals and advocates both special duties to nationals and general duties to others. He breaks down our duties regarding others’ human rights into four component duties: (1) refraining from infringing rights; (2) securing rights of those we are responsible to protect; (3) preventing violations by others; and (4) securing rights of others when those responsible for securing them do not do so.65 This maps in part onto the distinction in human rights law among the duty to respect (Miller’s first duty), the duty to protect (Miller’s third duty), and the duty to fulfil (Miller’s second duty).66 Miller then argues that the scope of duties to those abroad vs. co-nationals should vary both in terms of the importance of the duty and the primary bearer of the duty. He ultimately concludes that we, and presumably our state, have equal duties to our own and to foreigners—that is, general duties—when it comes to duty (1) and stronger duties to co-nationals regarding duties (3) and (4), with the ramifications for duty (2) depending upon whether indeed we have responsibilities to those abroad for certain rights as opposed to others. Miller’s argument for general duties for category 1 but not the other categories is, like Goodin’s, based on the negative/positive duty distinction and thus has similar shortcomings.67 Yet, like Goodin, Miller’s preference for nationals with regard to some duties ((2) and (3) in his scheme) need not apply in some situations when a state acts abroad, for in some of these case, notably occupation, the state does have the responsibility to protect foreigners. Miller, then, helps show how a weak cosmopolitan approach can provide a conceptual framework for determining the extraterritorial scope of human rights. He also directly addresses the considerations in deciding which states should assume responsibilities if more than one have certain duties.68 D. Lessons and Linkages The illustrations above cannot reflect the full arguments of each of the positions, and indeed they are based on presumptive extensions of existing positions, as philoso65 66 67

68

Miller, supra note 23, at 47. See Committee on Economic, Social and Cultural Rights, General Comment 12: The Right to Adequate Food, ¶ 15, U.N. Doc. E/C.12/1999/5 (May 12, 1999). Later, after arguing that basic human rights are grounded in basic human needs, he argues that “[w]hen basic rights are threatened or violated, this triggers a responsibility on the part of outsiders to come to the aid of those whose rights are imperilled,” though this blurs the difference among categories 2, 3, and 4. Miller, supra note 23, at 197. See especially id., ch. 4.

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phers have focussed on the second set of duties abroad and not offered a sustained, head-on treatment of extraterritorial duties in the area of human rights as lawyers understand that question (that is, the first category of duties noted above). But they do suggest the range of possible starting points and conclusions if philosophers are asked to weigh in on the question of extraterritorial duties. Because philosophy asks the foundational questions common to all questions of extraterritorial duties, its theories as to whether a state has a duty act abroad in the first place can tell us a great deal about what duties it might have when it acts abroad. Their views will turn on the reasons whether we owe any duties beyond our own borders and why; and the implications of those duties for states operating in an interstate system. Goodin and Miller in particular seem to offer the most to this conversation, although their distinction between positive duties and negative duties is really more of a hunch on their part than a well thought-out argument. Further work on this subject is clearly needed, and that thinking can contribute to our understanding of which sorts of human rights trigger territorial duties; which trigger extraterritorial ones; what those duties are—to respect, protect, or fulfill; and who must bear them in a world where there may be multiple duty-bearers but none willing to carry out the duty. More generally, the above discussion highlights the need for those in law and philosophy to consider broader linkages and ramifications for their work. Lawyers have addressed the issue of extraterritorial application of human rights from a perspective that misses its key connections with subjects such as the responsibility to protect or humanitarian intervention, the latter of which are relegated to another subject area (notably jus ad bellum). Recourse to philosophical concepts of duties makes this linkage apparent. Philosophers, on the other hand, have only considered half of the ramifications of their theorizing about general vs. special duties, leaving out a significant set of problems that arise when a state decides to act abroad even when it does not have a duty to do so. In a word, international law has examined the two sides of the problem without seeing it as one problem, while philosophy identifies a broad problem but has only chosen to focus on one side of it. V. Conclusion More than any other method of international law, the policy-oriented school has proved itself open to numerous interdisciplinary insights—without being formally anchored to a coordinate discipline as is the case with law and economics. Yet the New Haven School has always seen the social sciences, with their rich empiricism, as its closest kin. This paper has suggested that an alternative set of disciplines, political and moral philosophy, offer new critical insights for policy-oriented lawyers. Whether in scrutinizing his or her own observational standpoint, understanding the perspectives of others, or prescribing for the future, the policy-oriented international lawyer cannot ignore the fundamental moral questions about interpersonal and interstate duties at the heart of the project of international justice. The upshot is a need for direct collaboration among legal scholars and philosophers to understand the comparative advantage offered by the others. For the present, the lawyers offer the base of knowledge of the process of international lawmak-

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ing, the substance of current norms, and the role of international institutions in formulating and implementing norms. Political scientists contribute a thick description of the international actors as well. The philosophers, however, question some of the basic assumptions of lawyers with analytic rigor. Is there really an international community? Why? What sorts of duties flow from different visions of that community? Why might we want diversity or unity with respect to questions of governance? Lawyers implicitly consider these questions in their attempts to build structures of global order, but as the example of extraterritorial duties demonstrates, the explicit consideration of these issues can greatly contribute to more nuanced and careful policymaking. At the same time, the philosopher’s questions can only be part of the goal of constructing a just world order, for philosophers need to gain a far greater awareness of the workings of the international process. This requires a deeper understanding of the norms and institutions of international law. In learning about the extant legal order, philosophers often quick to criticize it may recognize that certain elements are indeed morally justifiable and that proposals for reconstruction need to take account of these possible justifications.69 For those interested in actually achieving international justice rather than simply elucidating its ideal contours, the result of this collaboration will be to make their work more relevant and convincing to the public and policy audiences who in the end must implement it. The New Haven School offers particularly fertile scholarship for that collaboration, for its avoidance of dry and decontextualized doctrine in favor of nuanced appraisal will best aid the philosopher seeking to understand the contours of the legal landscape. Its attention to both myth system and operational code, the conditioning factors behind existing rules, and the shortcoming of the status quo to address current challenges to public order have much to offer those engaged in ethics. Traditional positivist scholarship has its place as well, but those in ethics engaged in global justice would clearly gain special insights into international law from reading the works of Reisman, Higgins, and others not afraid of context and policy. The results of such a process of collaboration for international law remain to be seen. It may be that, in the end, lawyers will retreat to the practicalities—financially driven and otherwise—of their profession and conclude that their role is to solve problems quickly and realistically. From such a perspective, even non-ideal theory in philosophy is simply too many steps removed from the rough-and-tumble political process of convincing state and nonstate actors to prescribe or implement a certain vision of the law. But such a rejection of the moral questions is likely to be successful for the lawyer only in the short term. As the New Haven School recognizes, even the most practical solution devised by the lawyer will still need to be sold to a various audiences, domestic and global, and for many of them moral argumentation—even if not at the level of abstraction of the philosopher—still holds great sway. For those targets of projected policies will want to hear not simply that the lawyer’s solution 69

For one such attempt, see Steven R. Ratner, Do International Organizations Play Favourites? An Impartialist Account, in Legitimacy, Justice and Public International Law 123 (Lukas H. Meyer ed., 2009).

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works, but that it is right. For the lawyer to have considered those questions at the beginning of his or her task rather than at the end can only help in developing new norms and institutions to address the most pressing of global issues.

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Chapter 13 The Users of International Law Emmanuel Roucounas*

I. Introduction In legal matters, the analytical discourse facilitates, inter alia, the traceability of the elements of the system and contributes to the assessment of the implementation and effectiveness of its “rules, principles and norms”(hereinafter, rules). It also leads to the identification of the (physical and legal) persons involved. One of the preoccupations of lawyers is to convincingly explain who the addressees of international law (conventional, customary, and soft, alike) are. It is today accepted that the expeditious and traditional location of the three types of addressees (the state, exceptionally, the international organization, and, remotely, the individual) does not reflect reality. Therefore, scholars aiming to get rid of some of the structural difficulties related to the “subjects” of international law prefer to set them aside or declare that the discussion is over.1 Scholarship primarily investigates the quality and place of the state in the international legal system. The emergence, however, of serious competitors of the state has weakened the exclusivity of the latter as the “subject” of international law. One decisive feature of readjustment, but of uncertain outcome, has occurred in the relationship between the public and the private spheres.2 On the other hand, the concept of the individual has proved too abstract and legalistic3 and there are many suggestions to replace it. Indeed, the term “individual” corresponds to situations of the past, where the dichotomy between state and individual had nourished long theoretical * 1

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The author is indebted to Mr. Konstantinos Salonidis, Ph.D. candidate, for his assistance. Christian Dominicé, L’émergence de l’individu en droit international public, in L’Ordre Juridique International Entre Tradition et Innovation 122 (Jeanne Belhumeur & Luigi Condorelli eds., 1997). Cf. Public and Private: Legal, Political and Philosophical Perspectives (Maurizio Passerin D’Entrèves & Ursula Vogel eds., 2000); Richard Sennett, The Fall of Public Man (1977). Prosper Weil, Le droit international en quête de son identité, 237 Recueil des Cours 110 (1992).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 217-234.

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duels. The sketch of the individual visualizes rather a solitary person who, except in specific circumstances, cannot reach directly the process of elaboration and application of international law and, in principle, can exercise procedural rights under international law through a curator, i.e. the state.4 Scholarly opinion has qualified the individual as an “exceptional,” “secondary,” “derived,” “limited,” “material,” and “lopsided” subject (and even object) of international law.5 During the last two decades, lawyers, borrowing from the language of international relations, have turned their investigation towards the actors of the system, distinguishing between states and “non-state” actors. Non-state actors include the international organizations, but the concept mainly reflects the infinite variety of the re-baptized “individuals” with particular emphasis on non-governmental organizations.6 These organizations now have a significant presence in most areas of international law, primarily in human rights law.7 Although some of them do not respond to the relevant domestic or international legal criteria, they are categorized in groups, or in a more sophisticated manner, in international networks. The concept of non-state actors goes beyond the non-governmental organizations and encompasses decision-makers, interest groups, the mass-media, even super-empowered private persons present in law-making activities.8 In the past, all these figures were designated by the dubious term of “individuals.” The replacement of the individual by the conceptual framework of non-state actors is an improvement. The notion of actor connotes a dynamic presence, action, participation, and even polemic in the phases of the elaboration, adoption, implementation, and application of international law. It underlines that international law moves in a socially multifarious environment, where diverse forces contribute to its shaping and development. Yet the term presents a number of shortcomings, as it 4

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It is reminded that political scientists in their study of democracy envisioned even to replace the notion of the citizen by that of the “homme situé,” the human being situated within the society with his/her needs, aspirations, expectations and contribution. The publicist Georges Burdeau proposed a distinction between the citizen and the “situated man” (l’homme situé) who stands beyond the abstract citizen and is the real (physical or legal) person to whose aspirations the democratic regime shall respond. See Georges Burdeau, La Démocratie (1966). Emmanuel Roucounas, Facteurs privés et droit international public, 299 Recueil des Cours 28 et seq. (2002). Anne-Marie Slaughter distinguishes three situations involving NGOs: (a) with the state as institutional enablers, (b) against the state as adversarial activists, and (c) forgetting the state as mobilizers of market-power and autonomous law-makers. See Anne-Marie Slaughter, International Law and International Relations Scholarship: The State of the Art, 285 Recueil des Cours 96 (2000). See Linos-Alexandre Sicilianos, Les ONG et l’évolution future du droit international des droits de l’homme, in Les Organisations Non Gouvernementales et Le Droit International des Droits de L’Homme 233 (Gérard Cohen-Jonathan & Jean-François Flauss eds., 2005). For examples see Alan Boyle & Christine Chinkin, The Making of International Law 41 et seq. (2007).

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refers to action and seems not to include all those who passively receive and abide by the law. Also, instead of highlighting the positive aspects and the diversity of the persons involved, the term “non-state” is projecting a negative qualification towards the main actor, the state. Another alternative for redressing the current image of the addressees of international law is the reference to participants. Participants are those formally endowed with decision competence, as well as those not formally endowed with such competence.9 In this context it is stressed that the arenas of participation “must be open to all participants who wish a role in a decision commensurate with their legitimate interest and the content of [the] decision.”10 This again is an improvement, as the term participants is wider than that of actors and avoids employing the concepts of state action and non-state action.11 Theories of participation tend to soften the idea that the international community is a community di governanti e non di governati.12 The notion of participants, although it encompasses states and other persons, operates in a particular decision-making process.13 But the above construction does not seem to clearly distinguish between participants and actors since it also includes entities not endowed with a legal personality.14 Furthermore, it is silent on the role of other persons who are simply excluded de facto or otherwise from participation in the process. And the term participants does not seem to infer that all non-governmental organizations and groups or entities are admitted in law-making by states, international organizations, conferences and other organs. In practice, only a handful of them are admitted to participate in international fora in accordance with rules applicable in each case selectively. II. Toward the Mapping of Users Today in the international scene there appear many more silhouettes than those usually recognized by lawyers. Without challenging the merits of the above theoretical explorations that aim at re-centering the persons involved in the realm of international law, it is suggested to dig deeper and thus widen the scope of investigation by 9 10

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W. Michael Reisman, The View From the Yale School of International Law, 86 Am. Soc’y Int’l L. Proc. 118, 122 (1992). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, in International Law Essays: A Supplement to International Law in Contemporary Perspective 191, 212 (Myres S. McDougal & W. Michael Reisman eds., 1981). Rosalyn Higgins, Problems and Process: International Law and How We Use It 39 et seq. (1995). Cf. Benedetto Conforti, Diritto Internazionale 22 (6th ed. 2002). As Rosalyn Higgins notes, “International law is to be identified by what the actors (more often states), often without benefit of pronouncement by the International Court of Justice, believe in their relations to each other.” Higgins, supra note 11, at 18. See Malcolm N. Shaw, International Law 197 (6th ed. 2008) (arguing that “international personality is participation plus some form of community acceptance”).

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directing it towards the overall spectrum of the users of international law. During the United Nations Congress on International Law held in New York in 1995 for the celebration of the fiftieth anniversary of the organization, Louis Sohn referred to a “user-friendly” international law.15 And Michel Virally opened his general course at The Hague Academy of International Law by reminding us that the law (including international law) is primarily studied from the point of view of its users (“les usagers”)—in his opinion the persons entitled to rights and duties and those entrusted with the implementation and application of the law (subjects and practitioners).16 To be friendly, the law has to clearly indicate its users. The notion of users, familiar to computer science, could better serve the identification of the addressees of international law, that is, those who abide by its rules and seek respect from others without prejudice to their legal status or their active or passive role in the creation, application, or modification of its rules. In computer science, the users are characterized as the category of people who use a system without necessarily having the complete technical experience required to fully understand it. In our view, the notion of user is broader than those of actors or participants. It includes legal and physical persons, states, devolved states, sub-government units, judges and lawyers, civil servants, members of the armed forces and the police, international organizations and their personnel, belligerents, insurgents, companies, associations, networks, groups, single physical persons, and the ever-present sui generis situations, within or beyond state boundaries, bearing or not legal personality under international law. The exercise could eventually uncover not only the intermediate users but also the end-users17 of the system. Such an inquiry would also unveil cases where drafters of a text do not mean to reach the real users. Users, without losing that quality that makes them users, are also or can become subjects, actors, or participants, and they may possess or acquire further rights and duties. Potential users might become participants: a recent international instrument, the 1998 Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice (the Aarhus Convention) provides for a duty of states parties and a corresponding right of public participation (three types of participation) in the assessment of proposed activities likely to have an environmental impact (Articles 6, 7, 8).18 15

16 17

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Louis Sohn, Making International Law User-Friendly, in International Law as a Language for International Relations: Proceedings of the United Nations Congress on International Law, New York 411 et seq. (1996). Michel Virally, Panorama du droit international contemporain, 183 Recueil des Cours 25 (1983). The expression “end-users” means the final addressees of a rule in cases where there are intermediate users. It has a different significance in computer software engineering, where it means the groups called target-users or expected users, and in economics and commerce, where it means those who use a product. See Elli Louka, International Environmental Law: Fairness, Effectiveness, and World Order 129 (2007). The text of the Aarhus Convention can be found in 38

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According to the approach chosen for the study, the users are either exclusively the states or the international organizations, or in parallel with the above, many other legal or physical persons. In most cases states are the only “passe-partout” users, but in some areas they gradually become only formal, intermediate users, with the endusers being other persons. From another point of view, a rule might address one or various categories of users qualitatively differently in law and practice. The diversification of users might distinguish rights and duties according to their status as physical or legal persons. Such diversification might also allow us to appreciate the users’ capacity to assume rights and duties and abide by rules. For states, it might lead to lifting the veil of sovereign equality.19 Environmental affairs provide an example of how users undertake differing obligations. Thus the 1992 United Nations Framework Convention on Climate Change20 expresses concern for humankind, addresses the states and provides for “common but differentiated responsibilities” of the states parties.21 Previous efforts during the decades 1960-1970 to introduce the same differentiation in favor of developing countries in the name of a new economic order in treaties relating to international economic relations failed, however.22 Moreover, the identification permits a better understanding of the evolution of law, its achievements and shortcomings, and contributes to highlight each social relationship in persons aspiring to recognition of their legal personality under international law. The ongoing expansion of international law (conventional international law, and by a debatable trajectory, customary international law) would logically lead to its expeditious penetration into domestic law and its molding with the latter. Scholars are aware of the political, social and economic activities covered by international law and underline the intricacies of the complicated interaction between international and domestic law. A private person user, who is not recognized as a “subject” of international law, might nevertheless perform international rights and duties by the fact that international law is introduced into the domestic level. Existing differentiations from the two sides of the legal order still create regrettable situations for persons who should be the real users of international law. Yet identified users, who for various

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I.L.M. 517 (1999). Likewise, with more relaxed language Article 28 of the 1998 Convention of Human Rights and Dignity with Regard to the Application of Biology and Medicine invites the states parties to proceed, where appropriate, to public discussions and consultations regarding fundamental questions raised by the application of biology and medicine. See infra note 63. Cf. W. Michael Reisman, Report on Humanitarian Intervention, 72 Annuaire de L’Institut de Droit International, Session de Santiago 241 (2007). United Nations Framework Convention on Climate Change, opened for signature May 9, 1992, 1771 U.N.T.S. 107. Id. pmbl. para. 2, arts. 3(1), 4(1), 12(5). On this concept, see Christopher D. Stone, Common but Differentiated Responsibilities in International Law, 98 Am. J. Int’l L. 276 (2004). Ignaz Seidl-Hohenveldern, International Economic Soft Law, 163 Recueil des Cours 169 (1979).

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reasons are prevented from acquiring procedural rights under international law, can nevertheless, in their capacity as subjects of domestic law, invoke international law before domestic organs. The web is complex, but it is similar in every domestic legal system. The descent to the basics is, however, differently perceived at the domestic level, where the user mostly coincides with the subject of the law. It is too early to say what method of investigation could better transcend existing conceptual categories and lead to a clearer view of the wide spectrum of the addressees of the international legal system, but the idea of shedding more light on this question is worthwhile. III. A User Friendly International Law: Illustrations from Practice A. Human Rights Law: The Breakthrough in Favor of End-Users In the field of human rights, developments in the determination of the end-user are clear. In 1924 the Permanent Court of International Justice grandiloquently endorsed the idea that in the international protection of human rights the legal relationship is a state-to-state affair and that the state, acting on behalf of its citizens (“pour l’un des siens,” in the original text), is in fact asserting its own rights.23 But since the adoption of the 1948 Universal Declaration of Human Rights, that weak chain of international law is still fortified by an avalanche of legally binding and legally non-binding instruments, jurisprudence and practice that covers all the normative levels of substantial and territorial applicability of human rights. On the other hand, we often do not pay enough attention to the fact that the everexpanding internationally recognized human rights are now also nationalized. They are integrated into domestic law and hence they follow the path of national protection in both substantial and procedural terms. In addition, the state not only has the duty to guarantee fundamental rights, it also must provide for the horizontality of these rights (direct, statutory, intermediate, remedial, indirect, full horizontality), a notion initially based on the concept of Drittwirkung der Grundrechte (effect towards third parties). The expansion is further favored by the grasping of the self-executing character of some of these rights. Human rights rules, though, operate under a number of restraints. Despite normative proclamations such as the 1993 United Nations Vienna Declaration about the indivisibility and interdependence of all human rights,24 the distinction between civil and political rights on the one hand and economic, social, and cultural rights on the other hand is still present.25 This often sets off problems of “justiciability” (judicial 23 24

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Mavrommatis Palestine Concessions (Greece v. U.K.), Judgment No. 2, 1924 P.C.I.J. (ser. B.) No. 3, at 12 (Aug. 30). See World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, ¶ 5, U.N. Doc. A/CONF.157/24 (July 12, 1993) (“All human rights are universal, indivisible and interdependent and interrelated.”). The opposite opinion has been expressed by the Committee of the International Covenant on Economic, Social and Cultural Rights, arguing that there is no difference be-

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review)26 of the latter, preventing the users of these substantial rights from pursuing their claims in courts. The addressees are users “within the jurisdiction” of a state party and potential users before an international control body provided they are “victims” according to the normative framework. Relevant texts utilize a sophisticated terminology to indicate these users: man, woman, child, persons deprived of their liberty, parties to a trial, etc. The users of the respective rules are in parallel entitled by international law to certain procedural rights. Many more persons can find remedies under the term of “everyone,” a word more precise than the expression “all peoples” inserted into celebrating texts. Language is a medicine and to exclude undesired users, the drafters of Article 27 of the 1966 International Covenant on Civil and Political Rights27 referred to “persons belonging to ethnic or national minorities,” and by so doing opened the door to a formidable controversy on the distinction between individual users and group users of minority rights. In the mechanisms provided by the American Convention on Human Rights and the African Charter of Human Rights and the Rights of Peoples through the “individual petition,” users accede only to the first level of international protection, the second level being reserved either to the state or to an international commission. Other international bodies (the treaty-bodies on civil and political rights, economic, social and cultural rights, torture, racial discrimination, women and children) provide the real user with international non-judicial procedures of “individual communications” whose follow-up is arguably effective. But the evolution is certain: for every generally recognized fundamental human right there are the corresponding users who, even if not entitled to specific procedural rights under international law, can nevertheless find a shelter before international organs.28 Sometimes, the sheer volume of the users can block a mechanism. After its entry into force, the application of the 1951 Geneva Convention Relating to the Status of Refugees29 has been overwhelmed in many parts of the world by the enormous numbers of asylum-seekers and economic migrants. The pressure is defined as the gap

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tween “generations” of human rights. See Committee on Economic, Social and Cultural Rights [CESCR], The Nature of States Parties Obligations (Art. 2, para. 1 of the Covenant) (“General Comment No. 3”), U.N. Doc. HRI/GEN/1/Rev.1 (July 29, 1994). See Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 Am. J. Int’l L. 462, 486 (2004). International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171. On the international level, as Christian Tomuschat has put it: “[i]n human rights matters it can today be considered almost routine pattern that persons suffering an infringement of their rights may take their case to an international control body.” Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, 281 Recueil des Cours 9, 150 (1999). Geneva Convention Relating to the Status of Refugees, opened for signature Dec. 14, 1950, 19 U.S.T. 6223, 6259, 189 U.N.T.S. 150.

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between the migration potential and actual migration.30 To illustrate the problem, we could compare the borders of a state to water dams. The dams are constructed in anticipation and in expectation of receiving a certain volume and pressure of water. If the pressure is exceeded, the dam is endangered and can put at risk both sides of the border. In many cases the volume of potential users prevents even persons who fulfill the requirements of the Convention from the benefit of the status of refugee. Another example of systemic blocking is the transformation of potential to real users. Within the jurisdiction of the 47 states parties to the 1950 European Convention on Human Rights,31 there are around 800 million users. They also are potential users of the “individual petition” before the European Court of Human Rights in Strasbourg. Yet the international judicial control of the system is now in a crisis given the presence of a tremendous number of real users of that right. As a result, the Court is currently overloaded by more than 110,000 pending cases.32 B. “International Community” and “Humankind”: Semantic Issues Loose expressions fail to indicate the real user. The concept of the “international community,” to whose action or inaction, satisfaction or despair, realizations or dreams, is constantly referenced by all of us, does not lead to a clear indication of those entitled to invoke it. It has been considered as “une façon de parler,” a “legal fiction,” a “utopian or apocalyptic” notion, or an invention of intellectuals. Nevertheless, the international community expresses a close dialectical relationship with the operation of international law.33 The concept is invoked when, in view of the importance of the rights involved, the international community “expresses the concern of all states,” according to the celebrated dictum of the International Court of Justice in the Barcelona Traction Case.34

30 31

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Cf. Thomas Straubhaar, Migration im 21. Jahrhundert: Von der Bedrohung zur Rettung Sozialer Marktwirtschaften (2002). Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221. The ECHR has been amended by thirteen Protocols. Protocol No 14 will enter into force if ratified by Russia. See Council of Europe, Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, opened for signature May 13, 2004, Europ. T.S. 194. The Group of Wise Persons has already proposed the reform of the European system of protection in order to respond to the growing number of users of both substantive and procedural rules. See Council of Europe, The Group of Wise Persons, Report of the Group of Wise Persons to the Committee of Ministers, Nov. 15, 2006, CM(2006)203. Cf. Dinh Nguyen Quoc, Patrick Daillier & Alain Pellet, Droit International Public 38-39 (7th ed. 2002). Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32, ¶ 33 (Feb. 5).

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This trend is understood as enunciating the humanization of international law.35 It is further suggested that by the introduction of the above expressions humankind has become the addressee of international norms and a subject of international law.36 When the common interest is of structural importance for international law, it is expressed in terms of the safeguard of values of humanity and mankind. During the last decades, the concept of “crimes against humanity” has received a rapid and institutionalized development. Initially, in the Hague Conventions of 1907 and in the London Charter of the International Military Tribunal, the notion of humanity did not mean humankind. It meant the quality of human being.37 But since then, the locution has been placed in a wider context. Under the Draft Code of Crimes against the Peace and Security of Mankind, adopted in 1996 by the International Law Commission, it received an expanded definition. It means “mankind.”38 And this approach was further expanded under Article 7 of the Statute of the International Criminal Court.39 The aborted Article 19 of the Draft Articles on State Responsibility, adopted at the first reading by the International Law Commission,40 laid down the pessimistic potentiality of crimes of the state, and followed the most recent language on “the international community as a whole,” without, however, being apparently bound to specify the user of the primary rule.41 The concept of “common heritage of mankind” expresses the will for the preservation of universally cherished goods and values, but the users of the corresponding rules cannot be defined by reference to the concept itself and regime specification is still required. Users converge or differ according to the regimes of the law of the sea, space law, environmental law, human rights, humanitarian law, or the international protection of cultural objects.

35 36 37 38 39 40

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Antonio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium, 316 Recueil des Cours 9, 324 (2005). Id. at 331. Antonio Cassese, International Law 440 (2005). See Int’l Law Comm’n, Draft Code of Crimes Against the Peace and Security of Mankind, art. 18, [1996] 2 Y.B. Int’l L. Comm’n 15, U.N. Doc. A/CN.4/SER.A/1996/Add.1. Rome Statute of the International Criminal Court, opened for signature July 17, 1998, 2187 U.N.T.S. 90. On Article 19, see generally International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Joseph W. Weiler, Antonio Cassese & Marina Spinedi eds., 1989). It seems that the Commission understood the reference as expressing the obligation of states towards the international community and not towards individual states, but not from the viewpoint of the users. Cf. James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries 20 (2002). The provision was later subsumed under a rubric for “serious breaches of international law” and was elaborated by secondary rules, which cite states as agents of enforcement. See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 41, U.N. Doc. A/56/10 (2001).

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Two examples illustrate these diverging regimes. In the law of the sea, obviously the “common heritage of mankind” is translated in practice by the regime of the International Seabed Area, which is opened to exploration and exploitation by those enterprises of states that possess the necessary economic and technological capacities. The regime of the Area, as modified by the 1994 Agreement on Implementation of Part XI of the 1982 Convention,42 is based on detailed provisions and will operate under the supervision and control of international organs.43 In the Area, mankind is a nominal user, private enterprises are the real users, and developing countries are promised financial aid from the exploitation. In air and space law, where the regulatory regime includes satellite communications, scientific research, trade, military defense activities, weather forecasting, and remote sensing, the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies44 declares that the exploration and use of the outer space “shall be carried out for the benefit and in the interests of all countries.”45 Moreover, Article II of the Treaty enunciates that the outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of occupation or by any other means. A recent grotesque but politically supported interpretation pretends that the prohibition of “national” appropriation does not include the private sector, and that the addressees of the rule are exclusively states, not private enterprises. Given the extraordinary progress of technology and the extended privatization worldwide, one should expect further claims of this kind.46 Already in air and space law the private sector operates under regimes similar to that of the flag state, in plain confusion between private, public, and international interests, public goods, and public service. The legal regime of “the commons” 47 is the object of continuous economic, political, and scientific interest, and the question of representation of the “international community” in the high seas, extraterrestrial space, the Arctic and Antarctica depends on the rights and duties attributed to states and international organizations, but does not seem to reach the international (or global) civil society. Therefore, scholarship is invited to detect the intricacies of real users and their respective roles. 42 43 44

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G.A. Res. 48/263, U.N. Doc. A/RES/48/263 (Aug. 17, 1994). See Satya Nandan, Administering the Mineral Resources of the Deep Seabed, in The Law of the Sea 75 (David Freestone, Richard Barnes & David M Ong eds., 2006). Treaty on Principles Governing the Activities of States in Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205. As of January 2008, the treaty was ratified by 98 states. Id. art. I. For a critical presentation of the debate, see Fabio Tronchetti, The Non-Appropriation Principle as a Structural Norm of International Law: A New Way of Interpreting Article II of the Outer Space Treaty, 33 Air & Space L. 277 (2008). See Mahnoush H. Arsanjani & W. Michael Reisman, The Quest for an International Liability Regime for the Protection of the Global Commons, in International Law: Theory and Practice 469 (Karel Wellens ed., 1998).

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C. Technology and Users The regulatory framework governing human activities in the enormous area of the sea offers examples of the evolution of international law in response to technological progress and to the interests of the real users.48 The law of the sea and maritime law encompass all the users in a complex legal regime. The 1982 United Nations Convention on the Law of the Sea49 aims at primarily regulating state jurisdiction and control (title, regime, delimitation) in the sea,50 while the rules regarding the activities by all users (states and non-states alike) is also enunciated by the hundreds of earlier and subsequent multilateral and bilateral treaties and by other sources of the law. This is why the law of the sea has to always be read in conjunction with maritime law. The two branches are communicating and influence each other. Since the institutional user is the state but the perennial user is the ship, the law oscillates between the interests of those two as well as the interests of the “international community” in an attempt to balance them. Except for the attribution of maritime zones to the states (two in the seventeenth century, four in mid-twentieth century and nine under the 1982 Convention) and the legal regime of areas beyond national jurisdiction, the encounter of the state and the ship is regulated by the dogma of the flag state jurisdiction, lessened by a third state’s competence within areas under their jurisdiction and control. In this respect, the state is the user of one set of rules, the ship of another. The “genuine link” between the flag state and the ship implies that the state abides by the generally accepted rules of international law. However, others are called to implement the relevant rules to the ship. As far as the users of merchant shipping are concerned, if the flag state, as the primary user, is unable or unwilling to effectively apply international law to the ship, the application of the rules on safety and security of navigation and of protection of the marine environment is entrusted to other states users. The stubborn attachment of governments to the principle of flag state jurisdiction prevents frontally addressing the several deficiencies of this regime. Only indirect solutions have been found, a good example being the Port State Control established by the Memoranda of Understanding on Port State Control.51 On the other 48

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For a comprehensive presentation of the current uses of the oceans, see Law, Science and Ocean Management (Myron H. Nordquist, Ronán Long, Tomas H. Heidar & John Norton Moore eds., 2007). United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 3. In this regard, the reader of the Convention should not be impressed by the fact that the Convention refers more than five hundred times to the state (the coastal state, the port state, the flag state, the landlocked, the developing state, etc.) that agrees, negotiates, defines, takes into account, authorizes, provides, etc., whereas that text contains roughly ten references to the ship, the captain, and the shipowner, and only once to the crew. See International Maritime Organization, Information Resources on Port State Control, http://www.imo.org/includes/blastData.asp/doc_id=4365/Port20State20Control20 20_2720July202009.pdf.

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hand, the Proliferation Security Initiative,52 normative Security Council decisions,53 and agreements to combat pirates (the oldest misusers of international law) envision the strengthening of international law in the oceans for the benefit of all its users. The normal users of the law of the sea other than the state are mainly the ship and the shipping industry, the classification societies, the seafarers, the fishermen, and the international community, but there are also millions of other users, in particular passengers and owners of transported goods.54 As for the regime of the merchant ship, it suffices to bear in mind that the ship has a nationality, but not a legal personality. The personality goes with the owner, who sometimes does not have the same nationality as the ship. Today the “beneficial ownership” and open registry covers more than 60 percent of the world merchant shipping, and the industry utilizes a variety of methods in the exercise of its activities. Apart from the beneficial ownership, the industry widely practices the bareboat chartering, re-flagging, and double flagging, and establishes single ship companies. Who is the user under these different regimes and who is the end-user? This puzzle appears in particular in the fields of safety and security of navigation, as well as in the application of labor legislation. The state, in conformity with important International Maritime Organization conventions, delegates powers of public authority to non-state users. This is the case with the classification societies. These are private societies, which deliver “classification certificates” of utmost importance for the safety and security of navigation, insurance, and credit. The increasing activities and numbers of classification societies have led to questions of their civil liability as users of international law. In the United States, the New York courts are now examining a claim by the Spanish government regarding the liability of the classification society that delivered a certificate of seaworthiness to the M.T. Prestige, a single hull oil cargo that in 2004 sunk off the coast of Span and heavily polluted the area.55 In France, on January 16, 2008, the Paris Tribunal de Grande Instance upheld the civil liability of a classification society in the case of the single hull oil tanker Erika that sunk in 1999 off the coast of France and caused extensive marine pollution in the Bay of Biscay.56 Save the liability of those 52

53 54

55

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See Ashley J. Roach, Proliferation Security Initiative (PSI): Countering Proliferation by Sea, in Recent Developments in the Law of the Sea and China 351 (Myron H. Nordquist, John Norton Moore & Kuen-chen Fu eds., 2006); see also Philipp Wendel, State Responsibility for Interferences with the Freedom of Navigation in Public International Law (2007). S.C. Res. 1816, U.N. Doc. S/RES/1816 (June 2, 2008); S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008). Cf. Emmanuel Roucounas, Effectiveness of International Law for the Users of the Sea, in VIII-IX Cursos Euromediterráneos Bancaja de Derecho Internacional 849 (Jorge Cardona Llorens ed., forthcoming). Reino de España v. Am. Bureau of Shipping, Inc., 528 F. Supp. 2d 455 (S.D.N.Y. 2008), vacated sub nom. Reino de España v. ABSG Consulting, Inc., Nos. 08-0579, 08-0754 (2d Cir. June 12, 2009). Tribunal de Grande Instance [T.G.I.] [ordinary court of original jurisdiction] Paris, Jan. 16, 2008, No. 9934895010, slip op. at 141 (Erika) (Fr.). The French Court imposed penal-

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private companies, another unsettled question, the possible liability of a state user that delegates its powers to a private user, should be addressed. Other difficulties are recorded in the chapters of civil liability. In cases of damage caused by ships to states and private persons through the dispersion of oil and other noxious substances, the dubious principle of liability of the shipowner is circumvented by regimes of strict liability and by the establishment of constantly revised funds. These are partial and not always effective solutions in favor of the victim users of the seas.57 The law of the sea and maritime law are fields of constant adaptation regarding their users. The 1994 Agreement Relating to the Implementation of the 1982 Convention on the Law of the Sea demonstrates how combined considerations of technology, management, and politics led to a completely new regime for the international seabed. More impressive is the constant renovation of the rules governing safety and security of navigation in the oceans. The IMO has adopted, mostly by expeditious procedures including deemed acceptance by the states parties, forty-four amendments of the 1974 International Convention for Safety of Life at Sea (SOLAS),58 twenty-nine amendments of the 1978 International Convention for the Protection of Pollution from Ships (MARPOL),59 seven amendments of the 1966 Convention on Load Lines,60 and it has taken initiatives for the adoption of other international conventions whose implementation is monitored by specialized bodies of the organization. Similarly, during the last decade, the European Union (EU) has constantly modified the rules on ship construction, management, and navigation (EU Regula-

57

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59

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ties not only to the ship-owner and the charterer but also to the certification society as user of the international regulations regarding the safety and security of navigation. The classification society pleaded immunity unsuccessfully before the French court on the same grounds as the foreign flag state, contending that it was performing a state competence. See Rosalie P. Balkin, Some Future Developments in Liability and Environmental Damage at Sea, in The Stockholm Declaration and Law of the Maritime Environment 437 (Myron H. Nordquist, John Norton Moore, & Said Mahmoudi eds., 2003). Modifying the International Convention for the Safety of Life at Sea, adopted Nov. 1, 1974, 32 U.S.T. 47, 1184 U.N.T.S. 278. The last amendments will enter into force on 2010 and 2011. See International Maritime Organization, International Convention for the Safety of Life at Seas (SOLAS), 1974, http://www.imo.org/TCD/contents.asp?topic_id=257&doc_ id=647. Modifying the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 34 U.S.T. 3407, 1340 U.N.T.S. 184. The last amendments entered into force on January 1, 2010. Modifying the International Convention on Load Lines, opened for signature Apr. 5, 1966, 18 U.S.T. 1857, 640 U.N.T.S. 133. The last amendment entered into force on January 1, 2005.

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tions Erika I, Erika II61 and most recently Erika III62). Obviously all users can better respond to the exigencies of safety and security of navigation and the protection of the marine environment when competent and non-politicized international bodies are entrusted with the monitoring and follow-up of the relevant rules. In any case, the establishment of a global organization for the oceans is not to be expected soon. D. The Sequencing of Users In the sensitive field of medicine, medical practice and research, the tradition is to leave regulation to codes of medical ethics or codes of deontology and rarely to the legislator. This is also true for the pharmaceutical industry. Under these conditions it is understandable that the 1997 Convention for the Protection of Human Rights and Dignity with Regard to the Application of Biology and Medicine63 invites states parties to adopt legislative and other measures in a number of provisions referencing domestic law.64 The question of the direct applicability or self-executing character of the Convention preoccupies the commentators, but important member states of the Council of Europe are not as yet convinced to proceed with its ratification. This example shows that in sensitive areas, because of moral, economic, and political implications, the resistance to international initiatives tending to shift the users from the state to private persons is significant. An attempt to safeguard humankind (the term does not appear in the text) from the potential dangers of cloning has been made by the 1998 Protocol on the Prohibition of Cloning Human Beings.65 The users of the rule are the state, the scientific personnel in the laboratory, companies, and apparently the legally represented human embryo on which intervention for the above purposes is prohibited. Yet after long discussions turning around the discrepancy between the 1969 American Convention on Human Rights66 and those national legislations that adopted a different thesis, the drafters disagreed on the status of the embryo and once again left open this important question that has preoccupied lawyers since the times of Roman law. 61

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63

64 65

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See Henrik Ringbom, The Erika Accident and its Effects on EU Maritime Regulation, in Current Marine Environmental Issues and the International Tribunal for the Law of the Sea 265 (John Norton Moore & Myron H. Nordquist eds., 2001). Erika III Pulls Through Stormy Waters, Mar. J., Nov. 1, 2008, available at http://www. maritimejournal.com/archive101/2008/november/insurance_legal_and_finance/erika_ iii_pulls_through_stormy_waters. Convention for the Protection of Human Rights and Dignity with Regard to the Application of Biology and Medicine, Apr. 4, 1997, Europ. T.S. No. 164. As of May 10, 2009, the Convention was ratified by 22 states. Cf. Health Law, Human Rights and the Biomedicine Convention (J.K.M. Gevers, E. H. Hondius & J.H. Hubben eds., 2005). Additional Protocol to the Convention of Human Rights and Dignity with Regard to the Application of Biology and Medicine, on the Prohibition of Cloning Human Beings, Jan. 12, 1998, Europ. T.S. No. 168. American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123.

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As for the avoidance of international regulations by laboratories, the 2005 Protocol Concerning Biomedical Research Additional to the 1997 Convention on Human Rights and Biomedicine67 inaugurates a breakthrough in the field of biomedicine by extending its application beyond the territory of states parties. Article 29 of the Protocol enunciates that its provisions are to follow the users (the researchers and the sponsors of research projects) extraterritorially. Private users, provided they are “persons within the jurisdiction” of a state party in the sense established by the European Court of Human Rights case law, are bound by the Protocol to apply its rules wherever they perform their research activities in states parties or in third-party states accepting lesser standards. E. Waiting for the Users There are situations where a regulation anticipates the real users. For example, the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies68 has been ratified by thirteen states as of January 2009.69 Yet the parties do not include states that are currently engaging in activities of exploration and use of celestial bodies.70 Another example is the 1990 United Nations International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families,71 with its impressive record of forty-one ratifications.72 For the time being, however, states parties are exporters and apparently no state receiver of migrant workers has ratified the Convention. F. Variable Users as Addressees of Rudimentary Rules The enormous diversity of users in international economic, commercial, and financial affairs presents particular complexity. Under the denomination of actors, agents, operators, producers, intermediaries, and consumers, they spread in the internation67

68 69

70 71

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Additional Protocol to the Convention on Human Rights and Biomedicine, concerning Biomedical Research, Jan. 25, 2005, Europ. T.S. No. 195; see also Europ. T.S. No. 195 Explanatory Report, ¶ 137 (2005). Agreement Governing the Activities of States on the Moon and other Celestial Bodies, opened for signature Dec. 18, 1979, 18 U.S.T. 2410, 1363 U.N.T.S. 3. See United Nations Office for Outer Space Affairs, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, http://www.oosa.unvienna.org/oosa/ SpaceLaw/moon.html (last visited May 2009). Indirectly, all states can host multinational corporations and thus enter the flag state practice. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, annex, U.N. Doc. A/RES/45/158 (Dec. 18, 1990). As of May 2009. See Office of the United Nations High Commissioner for Human Rights, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, http://www2.ohchr.org/english/law/cmw.htm.

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al movement of persons, goods, services, and financial transactions. For a long time the attribution of the above activities mainly to the private sphere did not move many international lawyers. In transnational law and even under the 1949 General Agreement on Tariffs and Trade, the part of international law addressing the public sphere has remained underdeveloped and bilateral. For a long time, codes of conduct and self-regulatory regimes have remained the main responses to the needs for articulated regulatory regimes. Most recently, the wave of privatizations, the questions of free competition and international investment, the relationship between enterprise and labor, and state contracts are some of the signs of the trend to strengthen international organization and arbitration. The World Trade Organization has adopted more workable, substantial rules and procedures73 and all kinds of instruments, including the codes of conduct, are being mobilized for the smooth regulation of the behavior of persons involved in commercial, economic, and financial activities. The consumer is waiting a redefinition as well.74 As far as the internet is concerned, the geographic and political boundaries are in many respects irrelevant.75 This new tool creates a digital alternative reality and its users are real or virtual persons who do not always coincide with the users of the law. Decentralization is not the proper term for describing the environment and it seems more appropriate to speak of a spectrum of radical relocation of political, economic, and cultural powers. The use of the internet involves property rights; human rights, including freedom of expression, freedom of commerce and competition; public order and morality; ethics; security; and many other issues. Not only is the abysmal cyberspace still lacking specific and adequate international rules,76 but its users also have to turn for protection to domestic laws of dubious effectiveness (partly absorbing recognized, albeit general, international rules), sometimes with the international cooperation of sub-government organs. G. From State to Private: Attempts at Substitution The problem of reparations and compensation of private persons who are victims of violations of the laws of war and humanitarian laws has many facets.77 Traditionally war reparations are considered in the context of a state-to-state legal relationship. Where former belligerent states agree on the granting and the modalities of reparations, compensation, and satisfaction by one state to another, the recipient state 73 74 75 76

77

Andreas Lowenfeld, International Economic Law 161 et seq. (2d ed. 2008). See Roucounas, supra note 5, at 251-302. See Regulating the Global Information Society 1 (Christopher T. Masden ed., 2000). Anna-Maria Balsano, An International Legal Instrument for Cyberspace?: A Comparative Analysis with the Law of Outer Space, in The International Dimensions of Cyberspace Law 127 (Bruno de Padirack ed., 2000). Pierre D’Argent, Les Réparations de Guerre en Droit International Public (2002).

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is entitled, as the exclusive user, to distribute the compensation domestically as it deems appropriate. There is also a standard provision in several humanitarian law instruments that has been interpreted as not allowing states parties to avoid compensation.78 This inadequate conventional reference has always been complemented by customary law that underlines again the state-to-state relationship in war reparations. International law regards the state as the user of the right to international reparations, unless otherwise agreed by states. On this point, during the last decades, there has been significant evolution in international practice characterized by some controversy.79 First, former belligerent states have agreed that one state compensates specific categories of citizens of the other state identified as victims of war crimes (and not only for lost property). By such arrangements, these private persons have become direct users of the international compensation. Second, international agreements prescribe the waiver of the functional immunity of state agents accused of having committed war crimes and crimes against humanity, and, as a consequence, this evolution of the law creates the possibility of compensation for the victims of gross violations of human rights through international and national organs. In a compromise solution, Article 75, paragraph 1 of the Rome Statute on the International Criminal Court80 provides for the establishment of principles relating to reparation to, or in respect of, victims, and directs the Assembly of States Parties to establish a trust fund for the benefit of victims of crimes and of the families of such victims (Article 79 para.1).81 But third, and this is a new trend, a number of domestic courts have ruled recently that the law of sovereign immunity cannot be a bar to the adjudication of civil liability of a foreign state for “international crimes” (war crimes, crimes against humanity) committed by its agents and attributed to that state. Upon this determination, these domestic 78

79 80 81

Convention Respecting the Laws and Customs of War on Land art. 3, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 51, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 52, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War art. 131, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 148, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 91, June 8, 1977, 1125 U.N.T.S. 3. See the thorough analysis by Richard M. Buxbaum, A Legal History of International Reparations, 23 Berkeley J. Int’l L. 314 (2005). Rome Statute of the International Criminal Court, supra note 39. In contrast, Rule 106(b) of the International Criminal Tribunal for the Former Yugoslavia Rules of Procedure and Evidence provides that “[p]ursuant to the relevant national legislation, a victim or persons claiming through [the victims] may bring an action in a national court or other competent body to obtain compensation.” International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, Rule 106(b), U.N. Doc. IT/32/Rev.7 (Jan. 8, 1996).

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courts proceeded to the allocation of compensation to victims of these grave breaches and further ordered its execution directly against the assets of the foreign state located outside its territory. The most characteristic example of this tendency to shift the focus from the state (law of sovereign immunity) to the individual (human rights law) in order to directly allow state international compensation claimed by victims is recorded by the 2004 decision of the Italian Corte di Cassazione in Ferrini v. Federal Republic of Germany,82 as well as by other judicial decisions. The International Court of Justice has now been invited to settle this controversial issue.83 IV. Concluding Remarks It is suggested that the notion of users transcends legal categories of addressees of international law and localizes areas of diffusion of its rules in every contextual situation. By crossing the traditional or newly established categories of “subjects,” “participants,” and “actors,” the notion of users could offer another angle to contemplate on the horizon of international law. Furthermore, the study of the users broadens the circle of the addressees and illustrates chapters where political efficiency of international law is needed. Michael Reisman highlighted another dimension of the imperative of political efficiency that is forgotten by beneficiaries who are situated in a relatively stable legal system: people victimized or inadequately indulged by legal arrangements view the law as an artifact of alien power.84 A user-friendly international law contributes to the consolidation of confidence towards its rules. While it is difficult to imagine an overall theory of users since every situation is contextual and presents complexities and particularities, the step-by-step identification allows the examination of the quality, the possibility of perception, and the absorption of the rules by governments and governmental agencies, international and domestic courts and tribunals, international organizations and their agents, the civil society, and common physical and legal persons. Moreover, the interaction and the recurrent tensions between the public and the private spheres in all social activities and the fast-growing privatization and globalization (as ideologies and practices) in all parts of the world can prove inspiring for a reconsideration of the roles and the importance of real, intermediate, and end-users within the international normativity.

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See Pasquale De Sena & Francesca De Vittor, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, 16 Eur. J. Int’l L. 89 (2005); Massimo Iovane, The Ferrini Judgment of the Italian Supreme Court: Opening up Domestic Courts to Claims of Reparation for Victims of Serious Violations of Fundamental Human Rights, 14 Italian Y.B. Int’l L. 165 (2004). See Press Release, International Court of Justice, Germany Institutes Proceedings Against Italy for Failing to Respect Its Jurisdictional Immunity as a Sovereign State, Press Release No. 2008/44 (Dec. 23, 2008). Video: On the Causes of Uncertainty and Volatility in International Law (W. Michael Reisman 2009) (on file with the United Nations Audiovisual Library).

Chapter 14 Rethinking Choice of Law: What Role for the Needs of the Interstate and International Systems? Gary J. Simson

Although my teaching and scholarship do not focus on international law or any of the various other areas in which Michael Reisman has taught and written so often and so well, my debt to him is profound. It goes back many years to my days as a student at Yale Law School. I first met Michael in the fall of my second year of law school. The occasion for our meeting was quite unusual. I had never been Michael’s student to that point, but I received a note asking me to make an appointment to see him to discuss the possibility of my doing some research for him. More than a little intrigued, I arranged a time to meet with him in his office soon after. When Michael and I met, he told me that he had agreed to do an article on interstate agreements in the United States and that he had been thinking that research assistance from a student well-versed in U.S. constitutional law would be helpful. He had thought to ask me because Dick Miller, an old friend of Michael’s on the Ohio State law faculty who spent summers in the New Haven area, at some point had suggested my name on the basis of research that I had done for Dick the prior summer. Delighted at my good fortune, I blithely put aside all doubts about whether I really knew as much about constitutional law as Michael was assuming and accepted on the spot. Much as I value many of the courses I took as a law student, none of them—not even the fascinating jurisprudence course that I took from Michael in my third year— provided anything approaching the intellectual excitement and inspiration provided by my assisting Michael with the interstate agreements piece. Part of that excitement and inspiration derived from encountering for the first time the detailed decisionmaking framework developed and made famous by Professors Lasswell, McDougal, and Reisman.1 Primarily, however, my excitement and inspiration stemmed from the extraordinary experience of seeing up close a tremendously productive and creative—and so obviously brilliant—scholar at work. At the time, Michael had been on the Yale law faculty for only a few years. However, he had already been granted tenure 1

See, e.g., Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision (pts. 1 & 2), 19 J. Legal Educ. 253, 403 (1967).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © 2010 by Gary J. Simson.

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in record time, and there was no mistaking that he was already a star in international law and destined to be a dominant force in legal academia for years to come. It was thrilling to have such a great thinker and scholar treat my contributions as valuable—even my bold questions about the utility of certain aspects of the LasswellMcDougal-Reisman framework! I did have enough humility to understand, however, that his treating me, a second-year law student, much as one would treat a colleague said far more about his open-mindedness and egalitarianism than it said about the quality of my contributions. As Michael and I passed drafts and revisions back and forth, I was very pleasantly surprised at one point to see that Michael had listed both of us as authors of the piece.2 Although I probably did more drafting of text than research assistants ordinarily do, few professors would have listed me as a co-author, and even fewer would have made me a co-author without being asked. At the conclusion of my work for Michael on this project, my mind was made up as far as the form that my employment after law school would take. Who could resist a career in academia after seeing Michael in action and being the beneficiary of his largesse? For that and more, I will always be enormously grateful to him. As my contribution to this volume in Michael’s honor, I will discuss a subject that lies at the intersection of one of my areas of expertise (conflict of laws) and one of Michael’s (international law): the role that the needs of the interstate and international systems should play in choice of law. Throughout my discussion, I will focus on courts in the United States. I do so not because courts elsewhere are any less interesting or important. They surely are not. Rather, I do so because such a discussion is most meaningful in the context of one or another particular court system and because the U.S. court system is the one I know best. After briefly discussing in Section I the current state of choice of law in the United States and the place of interstate and international needs within it, the essay turns to the prescriptive question of the role that these needs should play. The value of answering this question within the framework of a forum-centered approach to choice of law is explained in Sections II and III. Problems inherent in identifying interstate and international needs are discussed in Section IV, and the difficulties in determining the degree to which such needs are implicated in particular cases are addressed in Section V. I. An Overview of U.S. Choice of Law and the Role of Interstate and International Needs Broadly speaking, the history of choice of law in the courts of the United States can be divided into two eras: before Babcock v. Jackson3 and after. Prior to Babcock—a 1963 decision by the New York Court of Appeals—courts throughout the United States virtually uniformly framed the choice-of-law analysis set forth in their written opinions in terms of territorial rules of largely medieval origin. Although the Ameri2 3

W. Michael Reisman & Gary J. Simson, Interstate Agreements in the American Federal System, 27 Rutgers L. Rev. 70 (1973). 191 N.E.2d 279 (N.Y. 1963).

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can Law Institute had published in 1934 the Restatement of Conflict of Laws in hopes of generating widespread conformity among state courts to a particular set of rules,4 the rules—after 1934 as well as before—commonly varied from state to state at any one time and within a single state over the years. At least on the surface, however, the various sets of traditional rules all required courts to arrive at their choice-of-law decisions indirectly. After characterizing the case at hand as one in tort, contract, or another area of the law, the court would (1) apply the place-of-wrong, place-ofmaking, or other rule triggered by the characterization, (2) ascertain the jurisdiction identified by the rule, and (3) with exceptions for forum procedures and forum public policy, apply the law of the selected jurisdiction across the board. The New York Court of Appeals’s path-breaking opinion in Babcock was the first state high court opinion to disavow strict adherence to the traditional rules. In Babcock the court announced that it would no longer feel bound to adhere to the place-of-wrong rule in tort cases. In subsequent years, the great majority of state high courts did likewise, and a similar proportion expressly renounced the traditional approach in contract cases. In rejecting strict adherence to the place-of-wrong rule, the Babcock court was able to draw support from earlier cases in New York and elsewhere that had adhered to the traditional rules in form but that could fairly be understood as manipulating the rules to reach results defensible in terms of unarticulated policy considerations.5 As other state supreme courts declared their rejection of one or another traditional rule, they typically offered a similar reinterpretation of past decisions, along with citation to cases in which other states’ high courts had explicitly rejected the rule.6 Virtually every state high court that has explicitly departed from the traditional approach has made the “governmental interest analysis” approach championed by Professor Brainerd Currie a significant ingredient of its choice-of-law methodology.7 Interest analysis, unlike the traditional rules, calls upon the court to arrive at its choice-of-law decision directly, not by means of any choice of jurisdiction. The court must identify the policies underlying the laws in conflict and determine whether the lawmaking states are interested in effectuating those policies under the facts of the case. A state is interested in effectuating a policy underlying its law if and only if doing so would benefit one or more of its residents. If only one state has an interest in applying its law, the case is a “false conflict,” and the court should select the law of the interested state. According to Currie, if more than one state has an interest—a “true conflict” case—and the forum state is one of the interested states, or if the court determines that no states have an interest, the court should apply forum law.8 A number of commentators, however, have made clear their disagreement with Currie’s forum4 5 6 7 8

See William Draper Lewis, Introduction to Restatement of Conflict of Laws, at viii-ix (1934). Babcock, 191 N.E.2d at 282-83. See, e.g., Reich v. Purcell, 432 P.2d 727, 729-30 (Cal. 1967). Professor Currie launched the approach with a remarkable flurry of articles that he later collected in Brainerd Currie, Selected Essays on the Conflict of Laws (1963). Id. at 119, 188-89 & n.3.

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preference solution in true conflict cases. In their view, courts should proceed in such cases to a more nuanced analysis of each state’s interest.9 As might be expected, state supreme courts have been much more in agreement on the proposition that they should not be bound strictly by the traditional rules than on the methodology that they should follow instead. According to a recent survey, all but ten state high courts no longer abide by the traditional rules in tort cases, and all but twelve no longer do so in contract cases.10 However, in departing from the traditional approach, state supreme courts vary significantly in the factors that they take into account and in the weight that they assign those factors. Although several state high courts have single-mindedly adhered to interest analysis for lengthy periods of time, only two continue to do so.11 Much more commonly, state supreme courts have used interest analysis as part of a more inclusive approach. For example, in seeking to determine for any particular issue the state of “most significant relationship,” the many state supreme courts subscribing to the approach of the Restatement (Second) of Conflict of Laws consider governmental interests in tandem with five other “factors relevant to the choice of the applicable rule of law.”12 In addition, in their search for the state of most significant relationship, they look for guidance to more specific Second Restatement provisions that give presumptive weight to directives typically patterned after one or another traditional rule.13 The handful of state high courts that have adopted Professor Robert Leflar’s approach examine governmental interests in the course of analyzing five “choice-influencing considerations.”14 The various state supreme courts that have cobbled together more eclectic approaches essentially combine interest analysis with one or more of the

9

10 11

12 13

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See, e.g., Russell J. Weintraub, Commentary on the Conflict of Laws § 627 (5th ed. 2006); William F. Baxter, Choice of Law and the Federal System, 16 Stan. L. Rev. 1, 8-9 (1963); Larry D. Kramer, More Notes on Methods and Objectives in the Conflict of Laws, 24 Cornell Int’l L.J. 245, 273-74 (1991). See Symeon C. Symeonides, Choice of Law in the American Courts in 2008: TwentySecond Annual Survey, 57 Am. J. Comp. L. 269, 279-80 (2009). See id. at 278-79 (California and D.C.). New Jersey is particularly notable among jurisdictions that once adhered strictly to interest analysis but no longer do so. It was one of the first jurisdictions to sign on to interest analysis when it did so in 1967, and it is the jurisdiction that most recently moved away from single-minded application of that approach. It did so in 2008. See id. at 272. Restatement (Second) of Conflict of Laws §§ 6, 145, 188 (1971). See, e.g., id. § 146 (“In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship. …” ). For a summary and critique of the Second Restatement approach, see Gary J. Simson, Leave Bad Enough Alone, 75 Ind. L.J. 649 (2000). Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267 (1966).

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factors on the Second Restatement and Leflar lists15 and, in some instances, have included a default of sorts to the traditional rules.16 Whether or not a court takes into account the needs of the interstate and international systems and, if so, how much priority it assigns to those needs is very much a function of the forum’s choice-of-law methodology. At one end of the spectrum are courts that limit their focus to interest analysis. Interstate and international needs are almost entirely outside their field of vision because interest analysis leaves little room for courts to consider policies other than those reflected in states’ domestic laws of tort, contract, etc.17 Because states’ domestic laws (also often called their “internal” or “local” laws) are adopted with intrastate cases paramount in mind, the policies reflected in those laws do not include policies that are implicated only in multistate cases—policies of a sort epitomized by the policy of serving the needs of the interstate and international systems.18 At the other end of the spectrum are courts subscribing to the Second Restatement approach. First on the Second Restatement’s list of seven factors relevant to choice of law is the needs of the interstate and international systems.19 Moreover, the Second Restatement suggests that interstate and international needs generally deserve priority. According to a comment in the Second Restatement, “Probably the most important function of choice-of-law rules is to make the interstate and international systems work well.”20 Somewhere in between lie the various courts that consider interstate and international needs but that do not regard them as inherently more deserving of priority than other factors. Most obviously meeting this description are courts that subscribe to the Leflar approach, which, under the rubric of “maintenance of interstate and international order,” lists interstate and international needs as one of five unranked choice-influencing considerations.21 Courts adopting a more eclectic approach typically call for attention to interstate and international needs and do so without assigning that factor priority. Although the traditional rules do not explicitly call for serious 15 16

17

18

19 20 21

See, e.g., Bushkin Associates, Inc. v. Raytheon Co., 473 N.E.2d 662 (Mass. 1985). See, e.g., Neumeier v. Kuehner, 286 N.E.2d 454 (N.Y. 1972). For detailed analysis and criticism of the New York approach, see Gary J. Simson, The Neumeier-Schultz Rules: How Logical a “Next Stage in the Evolution of the Law” After Babcock?, 56 Alb. L. Rev. 913 (1993). Essentially, interest analysis allows for consideration of policies other than those underlying a state’s domestic law only to the extent that such policies shed light on the range of multistate circumstances to which the domestic policies may fairly be understood to apply. See Gary J. Simson, Issues and Perspectives in Conflict of Laws: Cases and Materials 100, 135-51 (4th ed. 2005). See Arthur T. von Mehren, Recent Trends in Choice-of-Law Methodology, 60 Cornell L. Rev. 927, 936-38 (1975); Gary J. Simson, Plotting the Next “Revolution” in Choice of Law: A Proposed Approach, 24 Cornell Int’l L.J. 279, 282-84 (1991). Restatement (Second) of Conflict of Laws § 6(2)(a) (1971). Id. § 6 cmt. d. Leflar, supra note 14, at 285-87.

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consideration of the needs of the interstate and international systems, they implicitly invite at least some attention to those needs. This is most apparent with regard to the traditional rules’ public policy doctrine. That doctrine provides a vehicle for courts to reject the application of sister-state or foreign-nation law seemingly applicable under the place-of-wrong, place-of-making, or other traditional rule relevant to the case. However, under standard formulations of the doctrine, it limits rejection of otherwise applicable out-of-state law to instances in which application of that law would be seriously at odds with fundamental forum public policy.22 As such, the doctrine tacitly encourages courts to be mindful of the need for good interstate and international relations. In light of the importance that courts’ choice-of-law methodologies, particularly since Babcock, have assigned to interstate and international needs, one reasonably would assume that those needs would be featured in a substantial number of high court opinions. Courts’ practices in this regard, however, have diverged substantially from what their formal approaches would lead one to expect. As others have observed, courts rarely invoke the needs of the interstate and international systems.23 Moreover, on the rare occasions when they do, their reliance on the needs often seems more superficial than real. Ironically, an opinion that may well be the best-known invocation of international needs in a choice-of-law decision by a U.S. court exemplifies this type of token reliance. The opinion is not simply by the supreme court of a jurisdiction but by the Supreme Court of the United States. It is Justice Robert Jackson’s opinion in 1953 for a majority of the high court in Lauritzen v. Larsen.24 Since 1941, when the Supreme Court decided Klaxon v. Stentor Electric Manufacturing Co.,25 it had been clear that state courts are, by far, the primary source of the law of choice of law in the United States. Under Klaxon, in cases where federal jurisdiction is based on the parties’ citizenship in different states, a federal court must apply the choice-of-law rules of the state in which it is sitting. Federal jurisdiction in Lauritzen, however, was not based on diversity of citizenship. Instead, it was based on the federal question of whether the injured plaintiff seaman had a cause of action under the federal statute, the Jones Act, that established a federal cause of action for maritime torts or whether the plaintiff ’s rights were governed entirely by foreign-nation law. Lauritzen therefore was the rare post-Klaxon case in which a federal court was using federal, rather than state, principles of choice of law.26

22 23

24 25 26

See, e.g., Loucks v. Standard Oil Co., 120 N.E. 198, 202 (N.Y. 1918); Restatement of Conflict of Laws § 612 (1934). See, e.g., Luther L. McDougal III, Toward the Increased Use of Interstate and International Policies in Choice-of-Law Analysis in Tort Cases under the Second Restatement and Leflar’s Choice-Influencing Considerations, 70 Tul. L. Rev. 2465 (1996). 345 U.S. 571 (1953). 313 U.S. 487 (1941). For discussion of the sizable body of federal choice-of-law rules that had developed prior to Klaxon, see Baxter, supra note 9, at 29-31.

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While briefly in New York, Larsen, a Danish seaman, joined the crew of a Danish ship when it docked in New York. As the ship passed through Cuban waters, Larsen suffered injury in the course of his employment. Alleging negligence, he sued Lauritzen, the Danish shipowner, under the Jones Act, which gave injured seamen a right of action comparable to that enjoyed under federal law by railroad workers. Lauritzen countered by arguing the applicability of Danish law, which provided less generously than the Jones Act for compensation for a permanent disability when negligence could be proven. The New York federal court hearing the case held that the Jones Act applied and, based on the jury’s verdict, entered judgment for the plaintiff for almost 4,300. After a federal appeals court affirmed, the Supreme Court by a 7-1 margin reversed. Writing with his customary eloquence and flair—who else, in denying the significance to choice of law of the seaman’s place of contracting, would think to justify doing so with the quip, “A seaman takes his employment, like his fun, where he finds it”?27—Justice Jackson prefaced his “weighing of the significance” of seven “connecting factors”28 with a statement of background principles that drew heavily on the needs of the international system. Thus, according to Jackson, the applicable maritime choice-of-law approach is “designed” to fulfill the international need “to foster amicable and workable commercial relations.”29 In addition, the approach “aims” at meeting the international need for “stability and order,” and it recognizes the importance of not being “unmindful” of the “necessity for mutual forbearance if retaliations are to be avoided.”30 Ultimately, however, the Jackson opinion is baffling at best in linking the articulated international needs with the weighing-of-connecting-factors approach to which, by Jackson’s account, the needs purportedly give rise. Indeed, if the Court’s weighing approach in fact reflects recognition of the articulated needs, Jackson’s opinion is singularly unhelpful in explaining the connection. In disposing of one after another factor as entitled to little weight either in general or in the case at hand, Jackson says little or nothing with regard to the international needs identified earlier in his opinion. For example, in sweeping aside the place-of-wrong connecting factor as largely irrelevant to choice of law in cases, like Lauritzen, involving maritime torts, Jackson is content simply to rest on the fortuitous operation of the place-of-wrong rule in maritime cases. As Jackson puts it, “The test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal authority over waters she [the ship] may navigate.”31 By the same token, in characterizing the law-of-the-flag connecting factor as presumptively controlling both in the case at hand and perhaps in maritime cases gener27 28 29 30 31

Lauritzen, 345 U.S. at 588. Id. at 582. For Justice Jackson’s analysis of the factors, see id. at 583-92. Id. at 582. Id. Id. at 583.

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ally, Jackson explains his strongly positive weighting of this factor simply in terms of the factor’s longevity and general recognition.32 The choice-of-law approach that the Court applied in Lauritzen did not fit neatly into the traditional mold. To the extent that the Court’s approach evidenced recognition of the shortcomings of the traditional approach, it may be seen as quite forward-looking. To similar effect are intimations in the Court’s opinion that the Court is being guided to some degree by a sense of governmental interests.33 However, with regard to the Court’s incorporation of the needs of the international system into its choice-of-law approach, there is much less happening of any consequence than meets the eye. In short, Justice Jackson’s lofty rhetoric notwithstanding, Lauritzen evinces no more than an abstract commitment to serving the needs of the international system. As discussed further below, the international needs identified by Justice Jackson are eminently defensible as important needs of the international system. Nonetheless, the disconnect between the needs and the Court’s actual reasoning strongly suggests that the Court was giving only lip-service to those needs. II. Priority for Interstate and International Needs or for the Needs of the Forum State? As indicated in this section and the next, I regard serious consideration of the needs of the interstate and international systems as an essential component of any sound choice-of-law methodology. I part ways, however, with the drafters of the Second Restatement when they suggest that a court’s primary obligation in choice of law is to serve interstate and international needs. In my view, a court’s primary obligation is to serve the needs of the forum state, and a court properly acquits itself of that obligation in practice by proceeding in choice of law with a presumption in favor of applying forum law. Although it may seem enlightened for a court to think first about needs that transcend those of the forum state, state courts are not interstate or international fora acting on behalf of the United States or the collective nations of the world. They are agents of the states in which they sit. Whether popularly elected or appointed by popularly elected officials, state judges derive their authority from the people of the

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Id. at 584-86. Although Currie was responsible for developing the concept of governmental interests into a generally applicable choice-of-law approach, the concept did not originate with him. With Justice Stone leading the way, the U.S. Supreme Court had made the concept of governmental interests a central ingredient of its approach to constitutional limitations on choice of law. See Pacific Employers Ins. Co. v. Industrial Acc. Comm’n, 306 U.S. 493 (1939); Alaska Packers Ass’n v. Industrial Acc. Comm’n, 294 U.S. 532 (1935). Several years prior to authoring the majority opinion in Lauritzen, Justice Jackson commented in a law review on this development in the Court’s case law. Robert H. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 26-29, 33-34 (1945).

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state, and they act responsibly and legitimately insofar as their decisions further the best interests of the people of the state. Of course, reasonable judges may differ in particular cases as to what choice of law best serves the welfare of a state’s citizens, but for a few reasons, forum law is the logical place to start.34 First of all, regardless of whether one or more of the litigants in a particular case is a citizen of the forum state, the forum state always has an important stake in the court’s doing justice in the case at hand. As the best available evidence of the state’s lawmakers’ considered judgment as to the fairest or socially most beneficial way of resolving cases limited in their elements to the forum state, forum law is a natural choice to help ensure that the court fulfills its justice-dispensing role. A choice of forum law also serves the forum state’s best interests by minimizing the court’s risk of error. Very simply, because a court is more familiar with forum law than out-of-state law, it is less apt to misapply it. Lastly, because forum law is more readily ascertainable than nonforum law, a court serves the state’s interest in conserving judicial resources by proceeding with a forum law presumption. When the forum law potentially applicable in a conflicts case is a forum-state statute, principles of legislative supremacy and separation of powers reinforce the wisdom of proceeding with a presumption in favor of forum law. Forum statutes are fairly understood as expressing the state legislature’s view of the optimal resolution of the competing considerations in intrastate cases. If so, then judicial respect for the legislature’s preeminent role in state policymaking calls for judicial adherence to the policy balance struck by the legislature for intrastate cases unless the multistate nature of the case brings into play a factor that significantly changes the policy balance. When the forum law at issue in a multistate case is court-made law, the validity of a forum-law presumption is reinforced by principles of judicial consistency and evenhandedness. Forum common law reflects the state judiciary’s assessment of the balance best struck in intrastate cases. Unless the court can identify a factor in the conflicts case that calls for striking a different balance, the court cannot choose nonforum law without violating its obligation to decide cases over time in a consistent and evenhanded way. III. Situating Interstate and International Needs in a Forum-Centered Methodology Under the above reasoning, courts are correct not to give the needs of the interstate and international systems the primacy that the Second Restatement and some commentators maintain that they deserve. The needs of the forum, not those of the interstate and international systems, should occupy center stage. However, as the preceding discussion also suggests, fulfillment of the needs of the forum calls for serious attention in multistate cases to factors, such as the needs of the interstate and 34

See Simson, supra note 17, ch. 1 (“Why Not Always Apply Forum Law?”); Albert A. Ehrenzweig, The Lex Fori—Basic Rule in the Conflict of Laws, 58 Mich. L. Rev. 637 (1960); Amos Shapira, “Grasp All, Lose All”: On Restraint and Moderation in the Reformulation of Choice of Law Policy, 77 Colum. L. Rev. 248, 255-59 (1977).

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international systems, that presumably did not figure prominently in the lawmakers’ contemplation when, with the intrastate context foremost in mind, they formulated forum law.35 To put the matter somewhat differently: If courts in multistate cases apply forum law without considering the possibility that the needs of the interstate or international system strongly support a choice of nonforum law, they risk overextending the reach of forum law. Mechanical application of forum law in multistate cases without regard to interstate and international needs gives the balance struck by lawmakers in adopting forum law a significance and scope that the lawmakers, with their attention focused on intrastate cases, cannot fairly be assumed to intend. Consider, for example, Ciprari v. Servicios Aereos Cruzeiro,36 a case decided in 1965. Alleging negligence, a New York resident sued a Brazilian airline for injuries that he suffered in a plane crash in Brazil. While New York adhered to a rule of full compensation for injury, the Brazilian Air Code sharply limited airlines’ liability in aviation accidents to approximately 100 per person. In holding applicable the Brazilian ceiling on recovery, the New York federal district court hearing the case underlined Brazil’s powerful interest in protecting its airlines. According to the court, Brazil’s airlines were at the time “ ‘an infant industry of extraordinary public and national

35

36

Unlike the needs of the interstate and international systems, some factors that a court should consider in deciding whether to apply forum law in a multistate context are not peculiar to multistate cases. They may arise in both intrastate and multistate cases, but they may take on special significance in a multistate context and, for that reason, courts need to be sensitive to whether such factors should be understood as altering the policy balance struck with intrastate cases foremost in mind. One such factor is justified expectations. Justified expectations is often a factor that lawmakers take into account when, with intrastate cases paramount in mind, they formulate forum law. However, the multistate nature of a case may implicate justified expectations in a way that they would not be implicated if the case were confined in its elements to the forum state. See Simson, supra note 17, ch. 4 (“Protection of Justified Expectations”); Simson, supra note 18, at 291-92. Another factor of this sort is the interests of the forum state. Unlike justified expectations, forum state interests do not simply figure in the formulation of forum law on occasion; they do so all the time. Like justified expectations, however, this factor may take a very different form in a multistate case than it would take if the case were limited in all respects to the forum state. Although maximizing enforcement of the forum state’s interests in the long run is only sensibly served in intrastate cases by applying forum law, it calls for a more varied strategy in multistate cases. I disagree with Currie both as to how “interests” should be understood and determined and as to the appropriate means of implementing a decision to maximize forum state interests in the long run. See id. at 280-91. However, I very much share his assumption—implicit, if not explicit (see id. at 295 n.44)—that maximizing enforcement of forum state interests in the long run should be a key objective in choice of law. 245 F. Supp. 819 (S.D.N.Y. 1965), aff ’d per curiam, 395 F.2d 855 (2d Cir. 1966).

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importance,’ ” and the airlines’ success was, for Brazil, “ ‘a matter not only of pride and commercial well-being, but perhaps even of national security.’ ”37 In formulating its no-ceiling-on-recoveries rule, the New York legislators presumably were thinking, consciously or subconsciously, in terms of the wholly intrastate case: New York plaintiff, defendant, and accident.38 Weighing the relevant competing considerations for limited and unlimited recovery in this intrastate context, the lawmakers concluded that unlimited recovery was the fairest or socially most beneficial rule. The international need to decide cases in a way that would not generate serious friction between New York and another jurisdiction—a need that would not arise in purely intrastate cases—was not in the lawmakers’ immediate contemplation. However, in Ciprari, a case that transcended not only state but national lines, the international need to minimize friction between nations emerged as a relevant consideration. Indeed, given Brazil’s apparently powerful stake in protecting the defendant airline from significant loss, the need to avoid international friction seemed to militate strongly in favor of Brazilian law. Under the circumstances, a New York court could very reasonably conclude that the New York legislators who opted for an unlimited recovery rule with intrastate cases primarily in mind would nonetheless favor the selection of Brazilian law in the international case at hand. Conceivably, the New York legislators may have felt so strongly about the policy preference expressed in the unlimited recovery rule that they would be unlikely to favor a choice of Brazilian law in Ciprari. However, absent evidence to this effect in the legislative history of the unlimited recovery rule, a court most reasonably would infer that the lawmakers would have wanted to give precedence to the potent international need crying out for attention in the case. IV. Identifying Interstate and International Needs Although courts and commentators regularly talk about “the needs of the interstate and international systems,” they seem remarkably untroubled by, or inattentive to, the inherent vagueness of the phrase. To be usable in any analytically rigorous way, it requires substantial clarification in two respects. First, in deciding whether or not something is a need of the interstate or international system, whose perspective counts? To qualify as an “interstate” need for purposes of choice of law must the need be one in the eyes of every state in the United States? Of most states? Similarly, what degree of consensus is required among nations for a need to qualify as an “international” need for purposes of a choice-of-law decision? Is it necessary or sufficient or both that the need qualify as an “interstate” or “international” need in the eyes of the forum state?

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Id. at 824-25 (quoting Tramontana v. S.A. Empresa, 350 F.2d 468 (D.C. Cir. 1965)). For a thoughtful and colorful articulation of lawmakers’ natural tendency to frame their prescriptions in a way that does not explicitly differentiate between intrastate and multistate cases, but simultaneously to have in their minds the “undeveloped image” of the “wholly domestic case,” see Currie, supra note 7, at 81-82.

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Second, what falls within the concept of an interstate or international “need”? What constitutes a “need” and what does not, and why? I suggest that both sets of questions are best answered in terms of the role that the policy of serving the needs of the interstate and international systems plays in choice of law. That role varies according to the particular choice-of-law methodology within which the policy operates. For example, as noted earlier, the needs of the interstate and international systems are of quite limited significance to governmental interest analysis because that approach leaves little room for considering them.39 In contrast, those needs are highly relevant to choice-of-law decisions based on the Second Restatement, the Leflar approach, or the forum-centered methodology outlined above in Section II, but the needs may figure differently into the choice-of-law decision depending on which of these three methodologies is being used. As indicated in Section II, I believe that the optimal choice-of-law approach is one that has a forum-law presumption at its core but that recognizes the validity of departing from forum law in order to further policies, such as serving the needs of the interstate and international systems, that would not be materially implicated if the case were limited in its elements to the forum state.40 In exploring below how the concept of the needs of the interstate and international systems may be refined in a functionally effective way, I will do so within the context of my proposed approach to choice of law. The validity of the suggested refinement therefore depends in part on the validity of the approach within which it would operate. For present purposes, and out of regard for current space limitations, I refer anyone wishing a fuller account and defense of that approach to the 1991 article in which I proposed it.41 A. The Relevant Perspective Under my proposed choice-of-law approach, the answer to the question of whose perspective counts is clear: the forum state’s. If the case at hand does not implicate a need that the forum state regards as a need of the interstate or international system, then the court cannot reasonably conclude that the state lawmakers would regard the policy of serving the needs of the interstate or international system as an adequate basis for departing from the policy balance that, with intrastate cases foremost in mind, they struck in adopting the potentially applicable forum law. The fact that most states or nations may regard that need as one entitled to weight in choice of law as a need of the interstate or international system is beside the point.

39 40

41

See supra text accompanying notes 17 & 18. As indicated supra note 35, two other policies that warrant serious consideration in multistate cases as potentially justifying a departure from forum law are protecting justified expectations and maximizing enforcement of forum state interests in the long run. I have suggested that the latter policy calls for a two-step approach for resolving choice-oflaw problems: an initial “choice of jurisdiction” followed by a choice of law. Simson, supra note 18. Simson, supra note 18.

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Under a different methodology, a court might well be justified in taking seriously a need that the forum state does not regard as a need of the interstate or international system. For example, under the Leflar and Second Restatement approaches, the perspective of the need that counts is probably most logically seen as that shared by a majority of the relevant government actors, meaning a majority of the states of the United States in multistate cases and a majority of the nations of the world in multinational cases. Both approaches explicitly authorize courts to take into account the needs of the interstate and international systems, but neither expressly indicates whose perspective determines whether something qualifies as such a need. Moreover, although both approaches call for consideration of the forum state’s interests, they deemphasize the importance of those interests by calling, with no lesser force, for consideration of nonforum interests. B. The Essentials of an Interstate or International Need The fact that a term may clearly encompass certain things does not preclude the possibility that it is undesirably vague overall. For example, no one would dispute that a statute criminalizing “activities dangerous to others” covers someone who plants a bomb to go off at noon in a busy marketplace. However, “activities dangerous to others” obviously also has a vast gray area that is highly problematic. The “needs of the interstate and international systems” similarly has a certain core of clear meaning. As discussed below, few would question that the smooth and efficient operation of interstate and international commerce falls within it. Nonetheless, the “needs of the interstate and international systems” also includes a large realm of uncertain application. To diminish substantially this realm of vagueness and to establish a closer fit between the concept of the “needs of the interstate and international systems” and the function that it is designed to serve, I suggest refining the concept in three ways. First, to merit serious consideration in choice of law, a need must be one that can fairly be characterized as important. Assume that a court decides to apply nonforum law based on its perception that to do so would further a need of the interstate or international system. As discussed above, a choice of forum law always entails certain benefits: ease of ascertainment, less risk of error in application, and vindication of the forum state’s basic sense of justice. To justify relinquishing those benefits in order to serve an interstate or international need, the need must be sufficiently weighty in the forum state’s eyes to warrant description as important. Second, the need must be one that is distinctive to cases with one or more elements that transcend the boundaries of a single jurisdiction. Consider again a choice of nonforum law based on a determination that a need of the interstate or international system requires it. Forum law presumably reflects the forum state’s lawmakers’ considered judgment as to the optimal balance to be struck in terms of the policies at stake in purely intrastate cases. For a court logically to reject forum law in order to serve an interstate or international need, the need must be distinct from any taken into account in the policy balance struck in the formulation of forum law.

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Assume, for example, that the forum state legislature has long refused to recognize an individual right to be free from unsolicited and undesired publication of facts, however truthful, about one’s personal affairs. Also assume that the court sees this privacy right as a basic human right. Under the circumstances, the court might be tempted to call the right a need of the interstate and international systems and to invoke it as a basis for choosing nonforum law. To do so, however, would be misguided, because the need is in no way distinctive to cases transcending a single jurisdiction. In effect, the court would be using the interstate or international need concept to vindicate a need that the forum state legislature has already taken into account and has decided does not warrant priority over the policies that militate in favor of nonrecognition of the privacy right. Third and lastly, the need should be “systemic” in the sense of being a collective, widely shared need that must be met for the interstate or international system to function effectively. Consider, for example, the smooth and efficient operation of interstate and international commerce—a frequently cited interstate and international need that rather clearly qualifies as “systemic.”42 Individual states and nations have mutual interests in satisfying this need, and its satisfaction bears heavily on the effective functioning of the interstate and international systems. The free movement of individuals across state lines, which has been cited as a need of the interstate system,43 presents a closer question in terms of what qualifies as a “systemic” need. The free movement of people across state lines undoubtedly has economic repercussions for the effective functioning of the interstate system as a whole, but those repercussions appear to be significantly less than the repercussions associated with the need for interstate commerce to operate smoothly and efficiently. In addition, the importance of the need for people to move freely across state lines may be less a matter of the effective functioning of the interstate system than a matter of individual rights. In a federal system consisting of various states that have significant autonomy but that, above all, are parts of a single nation, the right to travel freely from state to state is readily understood as a right of national citizenship. Ultimately, however, in terms of the choice-of-law policy of serving the needs of the interstate system, the relevant question is not whether the need for people to move freely from state to state is as clearly or purely a systemic need as the need for the free flow of interstate commerce. Rather, the question is whether this need has significant repercussions for the interstate system as a whole. I believe that it does and that therefore a court reasonably may regard it as a “systemic” need and treat it as a possible basis in choice of law for departing from forum law.

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43

For a sampling of the many sources that have cited the smooth and efficient operation of interstate and international commerce as a need of the interstate and international systems or clearly treated it as such, see Lauritzen v. Larsen, 345 U.S. 571 (1953), discussed supra Section I; Lilienthal v. Kaufman, 395 P.2d 543, 546 (Or. 1964); Restatement (Second) of Conflict of Laws § 6(2)(a) & cmt. d (1971); Leflar, supra note 14, at 285-87. See, e.g., Barrett v. Foster Grant Co., 450 F.2d 1146, 1152 (1st Cir. 1971); Rungee v. Allied Van Lines, Inc., 449 P.2d 378, 383 (Idaho 1968); Leflar, supra note 14, at 286.

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Lastly, to avoid possible misunderstanding, I should note that even if I am wrong and the interstate repercussions of this need are too fragmentary for the need to be fairly regarded as systemic, the need is not necessarily irrelevant to choice of law. It may well warrant serious consideration in choice of law for other reasons—specifically, as an important individual need that arises as a result of the interstate character of the case. For the sake of clarity, consistency, and analytical precision, courts should take care in thinking about the needs of the interstate and international systems to screen out needs that cannot fairly be characterized as systemic. In doing so, however, courts also should be alert to the possibility that there are individual, nonsystemic needs arising out of the interstate or international nature of the case that merit attention in the choice-of-law decision.44 C. A Proposed Presumption In deciding whether particular needs meet the three criteria described above, courts generally can be expected to have the most difficulty with the criterion that the need be “important.” “Important” is obviously a highly relative term. As noted earlier, however, “important” is only sensibly discussed in this context as meaning at least important enough that the benefits that accrue from serving the need outweigh the benefits 44

Gore v. Northeast Airlines, Inc., 373 F.2d 717 (2d Cir. 1967), provides an interesting example of such a need. Gore was a wrongful death action brought in New York for a New Yorker’s death in an airplane crash. The law of Massachusetts, where the accident occurred and the airline had its principal place of business, limited wrongful-death recoveries to 15,000; New York law had no such ceiling on recoveries. Soon after the accident and before the filing of the suit, the decedent’s widow and their two young children moved from New York to live with her mother in Maryland. Applying New York conflicts law, the lower court held that the Massachusetts ceiling on recovery applied. In its view, the survivors’ move to Maryland deprived New York of the interest it otherwise would have had in applying, for the survivors’ benefit, the full compensation policy underlying its no-ceiling rule. The appellate court reversed, holding that the New York interest persisted despite the family’s move. Citing a New York case from 1900, it explained that, for purposes of determining the existence of a New York interest, “the time of death is the crucial time” because “New York considers the rights of beneficiaries in wrongful death actions to be property rights which vest as of the date of death.” Id. at 723. Even aside from the anomaly of invoking a rule announced in 1900 to determine the workings of an approach adopted more than sixty years later, the appeals court’s reasoning left much to be desired. The court would have been far more persuasive if it had explained that a choice of New York law was appropriate in light of the family’s need to move to Maryland where the widow’s mother could help cushion the economic and emotional blow they suffered from the decedent’s death. Although the post-accident move eliminated any New York interest in applying the policy behind its no-ceiling rule, New York plainly did have an interest in applying a choice-of-law policy arising out of the multistate character of the case: a policy of deciding choice of law in a manner that does not deter individuals from leaving the forum state when to do so would satisfy important personal needs.

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that always accrue from simply applying forum law. In addition, in a democratic society in which the importance of state interests is generally thought to be measured in terms of significance to the well-being of the people of the state, it seems appropriate to think about the importance of serving a particular need from a similar perspective. Although these general guideposts provide some structure to determinations of importance, more seems desirable. Past practice implicitly suggests a useful possibility. On the relatively rare occasions that courts and commentators have identified specific needs of the interstate and international systems, they have mentioned the following three needs much more often than any others: (1) the smooth and efficient operation of interstate and international commerce; (2) good relations between the states of the United States and between the United States and foreign nations; and (3) the free movement of people across state lines.45 I suggest that the high level of consensus that has developed in favor of recognizing these three needs is largely explicable in terms of the significant degree of recognition that federal and international law accord them. The need for interstate commerce to operate smoothly and efficiently is recognized by several federal sources. Most notably, these include: the Commerce Clause of Article I, Section 8 of the U.S. Constitution, which grants Congress the power to “regulate Commerce … among the several States”;46 numerous statutes enacted by Congress over the years pursuant to its commerce power;47 and the many “dormant” Commerce Clause cases in which the federal courts have invalidated state legislation as violating a tacit federal constitutional prohibition on states’ imposing unreasonable burdens on interstate commerce.48 The need for the smooth and efficient operation of international commerce is acknowledged in the Commerce Clause insofar as the clause vests Congress with power not only over interstate commerce but also over “Commerce with foreign Nations.”49 This need also is recognized by a variety of international agreements designed to facilitate international trade.50 Recognition of the need for good relations between the states of the United States is implicit in several constitutional provisions. These include, for example, the prohibitions in Article I, Section 10 on state activities, such as “enter[ing] into any Treaty, Alliance, or Confederation,” that are apt to prove nationally divisive.51 They also in45

46 47

48 49 50 51

See, e.g., Restatement (Second) of Conflict of Laws § 6 cmt. d (1971) (discussing first two needs); Leflar, supra note 14, at 285-87 (discussing all three); sources cited supra note 42 (discussing first need); sources cited supra note 43 (discussing third need). U.S. Const. art. I, § 8, cl. 3. See Erwin Chemerinsky, Constitutional Law: Principles And Policies § 3.3 (3d ed. 2006) (discussing various statutes enacted pursuant to the Commerce Clause that have been reviewed by the U.S. Supreme Court over the years). See, e.g., C & A Carbone, Inc. v. Clarkston, 511 U.S. 383 (1994); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945); Chemerinsky, supra note 47, § 5.3. U.S. Const. art. I, § 8, cl. 3. For discussion of various such agreements, see Andreas F. Lowenfeld, International Economic Law (2d ed. 2008). U.S. Const. art. I, § 10.

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clude the requirement that Article IV, Section 1 imposes on each state to give “Full Faith and Credit” to the “public Acts, Records, and judicial Proceedings of every other State”52—a requirement plainly intended to have a unifying effect on the states.53 For recognition of the need for good relations between nations, one has to look no further than the U.N. charter.54 Lastly, federal law recognizes in a few ways the need for individuals to be free to move from state to state within the United States. Although the Constitution does not explicitly guarantee a right to be free from state-imposed restraints on interstate travel, the Supreme Court has recognized such a right as implicit in the nature of the federal system created by the Constitution55 and as an aspect of the national citizenship protected by the Privileges or Immunities Clause of the Fourteenth Amendment.56 In addition, some federal legislation pursuant to the Commerce Clause has proceeded on the premise that practices that deter individuals’ interstate movement may have significant negative repercussions for the national economy. Most memorably, in testimony before congressional committees, federal executive officials relied heavily on this premise in defending the Civil Rights Act of 1964 and its ban on racial discrimination in places of public accommodation, and the U.S. Supreme Court opinions that upheld the Act relied on this premise as well.57 Drawing on the support that exists in federal and international law for the three needs discussed above, I suggest that courts be guided strongly in their determination of a need’s importance by whether the need is substantially rooted in federal or international law. More specifically, I propose that a need’s substantial connection to federal or international law is presumptive proof of the need’s importance and that the absence of such a connection is presumptive proof of the need’s unimportance. I believe that this use of a presumption strikes a good balance between promoting objectivity in judicial decisionmaking and allowing judges adequate flexibility to take relevant differences into account. I suspect that this proposed presumption, and perhaps my three proposed refinements in general, may seem to some readers to err on the side of promoting objectivity. They may see my proposals as unduly restrictive of judicial decisionmaking, as too much of an attempt to impose structure on a decision best left more to 52 53

54 55

56 57

U.S. Const. art. IV, § 1. See Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-77 (1935); James D. Sumner, Jr., The Full-Faith-and-Credit Clause—Its History and Purpose, 34 Or. L. Rev. 224, 24144 (1955). See U.N. Charter arts. 1 (purposes of U.N.), 2 (principles to which U.N. and members are committed). See United States v. Guest, 383 U.S. 745, 757 (1966) (“The constitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union.”). See Saenz v. Roe, 526 U.S. 489, 502-04 (1999). See Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding application of Act and recounting legislative history); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (same).

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judges’ discretion and good judgment. In anticipation of this possible response, I should make explicit an assumption about judicial decisionmaking in choice of law that informs my thinking and that, in my view, justifies the degree to which my proposals impose structure on judges’ decisions whether to recognize new interstate and international needs. Very simply, although I have no doubt that, in adjudicating cases of almost every variety, judges at times consciously exploit ambiguities in the applicable rules and approaches to reach results that they prefer for reasons not articulated in their opinions, I believe that such judicial manipulation is especially pronounced in choice of law. Indeed, judicial manipulation has long been so commonplace in choice of law as to amount to a sort of time-honored, though less than honorable, tradition. Consider the methodology of place of wrong, place of making, and the like that monolithically dominated choice of law in courts throughout the United States until the 1960s. That approach is so inviting of manipulation in its multiple ambiguities and lack of firm grounding in any substantial choice-of-law objective that some of its defenders have gone so far as to cite its amenability to judicial manipulation as a reason to continue to use it.58 Though offered and often hailed as methodologies providing courts with more meaningful direction, states’ “modern” approaches—most notably, governmental interest analysis, the Second Restatement approach, and Leflar’s fivefactor test—are themselves more than sufficiently malleable to encourage courts to continue to abide by their longstanding tradition of manipulation in choice of law.59 D. A Case Study in Innovation Bledsoe v. Crowley,60 a 1988 decision by the U.S. Court of Appeals for the District of Columbia Circuit, is one of the very rare cases in which judges rely on an interstate or international need and the cited need is not one of the three discussed above. As such, it provides a rather unique opportunity to examine judicial invocation of interstate or international needs in an innovative way. Bledsoe involved a malpractice suit brought in a federal district court in the District of Columbia. The plaintiff, Bledsoe, was a physician living in D.C., and the two defendants, Crowley and Friedman, were psychiatrists living and practicing in Maryland. Bledsoe alleged that the defendants had been negligent in failing, during the twelve years in which he received psychiatric care from them, to recognize that he 58

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See, e.g., Paul v. National Life, 352 S.E.2d 550, 555-56 (W. Va. 1986) (affirming the court’s continued adherence to the place-of-wrong rule and explaining that “if we are going to manipulate conflicts doctrine in order to achieve substantive results, we might as well manipulate something we understand”). For brief discussion of the malleability of: (a) governmental interest analysis, see SIMSON, supra note 17, at 99-100, and Simson, supra note 18, at 283-84; (b) the Second Restatement approach, see Simson, supra note 13, at 650-51; and (c) the Leflar approach, see Gary J. Simson, Resisting the Allure of Better Rule of Law, 52 Ark. L. Rev. 141, 146-51 (1999). 849 F.2d 639 (D.C. Cir. 1988).

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had a brain tumor. He further claimed that if the defendants had recognized the tumor in timely fashion, he would not have suffered the harm from the tumor—permanent brain damage and loss of vision—that he did. If Maryland law applied, Bledsoe’s suit would be dismissed. By statute, Maryland required any malpractice claim seeking more than a certain minimum amount to be submitted initially to arbitration. Bledsoe’s claim exceeded the statutory minimum. Nonetheless, he had gone directly to court. The District of Columbia had no arbitration requirement. Under the District’s traditional common-law negligence approach to malpractice liability, Bledsoe was free to go directly to court as he had done. With federal jurisdiction based on the parties’ diversity of citizenship, the D.C. federal district court applied the interest-balancing test that the District of Columbia’s high court used in choice of law. The federal district court held that Maryland was the only interested jurisdiction and that therefore Maryland law applied and the suit should be dismissed. In an opinion by Judge Edwards that the two other judges who heard the appeal joined, the federal appeals court unanimously affirmed. The court maintained that even if the D.C. interest was not nonexistent, it was not as strong as the Maryland interest and that therefore Maryland law prevailed. Of principal importance for present purposes is Judge Williams’s concurring opinion. Although he joined Judge Edwards’s opinion, he wrote separately to highlight that in his view the same result could have been reached by a very different route: attention to the needs of the interstate system. According to Judge Williams, the District’s courts “often turn for guidance” in choice of law to the Second Restatement, and it therefore is very appropriate in the case at hand to think about interstate needs—the “shared, non-parochial interests” that the Second Restatement treats as very important.61 Judge Williams maintained that Bledsoe and medical malpractice cases in general implicate two such “systemic interests”: first, states’ shared interest in “states’ being able to develop coherent policies governing medical malpractice liability”; and second, states’ shared interest in “individuals’ being able to take advantage of medical services outside their home jurisdictions.”62 He then went on to argue that if a court carefully takes into account these systemic needs, it will realize that choice of law in medical malpractice cases should be governed by a rule of “applying the law of the state where the services are provided.”63 Under the facts of Bledsoe, that would mean applying the law of Maryland and dismissing the suit—the same result that Judge Edwards had reached under a very different approach. Though not identical to the systemic need, discussed above, in individuals’ free interstate movement, the second interest identified by Judge Williams may reasonably be viewed as a subset of that need. For present purposes, I will focus on Judge Williams’s first interest, which is substantially more problematic.

61 62 63

Id. at 646 (Williams, J., concurring). Id. Id. at 647.

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As an initial matter, I note that this interest seems to lack the substantial connection to federal law that I have suggested should determine whether an interstate need is presumptively important or unimportant. If indeed there is such a connection, Judge Williams’s opinion offers no insight into what it might be. It is also questionable whether the interest at issue has the “systemic” nature that I have argued is essential. Phrased as Judge Williams phrased it, this interest in “states’ being able to develop coherent policies governing medical malpractice liability” certainly sounds like a “systemic” interest. After all, what reasonable state isn’t in favor of coherence over incoherence? Similarly, isn’t every state happy to see its sister states— its partners in the larger enterprise of the U.S. federal system—reap the benefits of developing coherent policies? The reality, however, is considerably more complex than it at first appears. Consider, for example, the different perspectives of Maryland and the District of Columbia as reflected in the conflicting laws in Bledsoe. In adopting its compulsory arbitration statute, Maryland presumably was seeking to reduce the size of medical malpractice recoveries against Maryland providers and, thereby, to lower the costs of health care for its citizens in general. Furthermore, as Judge Williams explained, “a state that seeks to reduce medical costs by reducing the burden of malpractice liability must be able to assure providers that the state’s rules will actually apply to all (or virtually all) cases.”64 In other words, for Maryland and other states attempting (by an arbitration requirement, recovery ceiling, or other means) to limit medical malpractice recoveries overall, it is essential that the means adopted be implemented in a predictable and consistent—that is, “coherent”65—way. Otherwise, insurers will be unable to calculate with any real confidence the likely reduction in the total amount recovered in malpractice actions against Maryland providers. If insurers find themselves in that predicament, they almost certainly will respond by refusing to lower, or by lowering insignificantly, Maryland providers’ liability insurance premiums, with the result that Maryland will not realize any meaningful reduction in its citizens’ health care costs. In contrast, the District of Columbia and other jurisdictions that have not adopted means of limiting medical malpractice recoveries are not nearly so dependent, for the achievement of their goals, on the “coherent” implementation of their approach. In forgoing an arbitration requirement and other means of bringing down health care costs in malpractice cases, the District of Columbia cast its lot with those states that assign priority to compensating fully the victims of medical malpractice and deterring medical malpractice. Let us assume that in medical malpractice cases in the coming year involving a choice between Maryland and D.C. law, some D.C. victims of medical malpractice will not be permitted to enjoy the direct access to court promised by D.C. law. Instead, they will be required to proceed in accordance with the Maryland arbitration requirement. The fact that the District is unable to give some D.C. victims the benefit of D.C. law does not detract from its ability to give others—those allowed 64 65

Id. at 646. Id.

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to proceed under D.C. law—the full benefit of the District’s policy of ensuring that malpractice victims are made whole for their loss (or at least as “whole” as money can make them). In addition, even if the D.C. law is not applied in a predictable and consistent—that is, “coherent”—way, its deterrent capacity is probably not materially impaired. Indeed, in terms of deterrence, unpredictability and inconsistency in the choice of D.C. law can be assets insofar as they help ensure that the possibility that D.C law will be applied is always a credible threat. In short, despite its inclusive sound, the articulated interest of ensuring states’ ability to develop coherent policies on medical malpractice liability is not the “systemic,” “shared, non-parochial interest”66 that Judge Williams claims it to be. Instead, it is an interest to which individual states subscribe or do not subscribe depending on whether or not their paramount objective in the medical malpractice area is reduction of health care costs. In terms of realization of medical malpractice goals, the District of Columbia simply does not need predictable and consistent application of D.C. medical malpractice law nearly to the extent that Maryland needs predictable and consistent application of Maryland law. Moreover, as a jurisdiction that apparently believes that full compensation of medical malpractice victims and deterrence of malpractice are more important than reduction of the health care costs associated with medical malpractice cases, the District presumably is only too happy to throw a wrench in the efforts of Maryland and other states to develop coherent contrary policies. All in all, Judge Williams’s opinion is admirable for his willingness to think outside the box of the three most commonly cited needs of the interstate system. However, it also illustrates the problems that may arise as judges become more innovative in this realm. I suggest that my proposed criteria and presumption are necessary refinements of an inherently vague concept and that they provide judges with valuable tools for identifying new needs that can withstand close examination. V. Ascertaining Differences in Degree If a court finds that an important need of the interstate or international system is implicated in the case at hand, it must then determine how strongly the need militates in favor of one or another choice of law. At a minimum, before giving a need substantial weight as a factor in the choice-of-law decision, the court must be satisfied that the need significantly militates in favor of a particular choice of law. A 1985 California Supreme Court decision, Wong v. Tenneco, Inc.,67 nicely illustrates the difficulties that may arise in making such a determination. The litigation in Wong arose out of the contracts between Lee Wong, a California resident who grew green onions on land that he owned in Mexico, and H-M-T, a California subsidiary of Tenneco, Inc. that marketed produce. In response to restrictions imposed by Mexican law on land ownership by foreigners, Wong had put title to his Mexican land in the name of Mexican citizens whom he had hired to grow, 66 67

Id. 702 P.2d 570 (Cal. 1985).

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pack, and ship the produce under his name and label. As Wong’s financial situation deteriorated, H-M-T stopped dealing with him and instead began sending any sales proceeds to the Mexican growers. Ultimately, the farming operation collapsed completely, and Wong sued on breach-of-contract and other grounds. The defendants— Tenneco, H-M-T, and another Tenneco subsidiary—successfully defended in the trial court on the ground that Wong’s land ownership violated Mexican law. With one judge in dissent, the California Supreme Court affirmed. The choice-of-law question presented by Wong was unusual to say the least. The laws of Mexico and California appeared to be in agreement on the principle that a contract based on an illegal transaction was unenforceable.68 They differed, however, in their tolerance for land ownership by foreigners. The Mexican Constitution expressly barred foreigners from owning land in Mexico. Although Mexican statutes established more latitude for foreign investment in Mexican land than a reading of the Mexican Constitution alone would lead one to expect,69 and although the dissenting judge in Wong maintained that Wong’s land ownership did not violate Mexican law,70 the majority’s holding that Wong indeed had overstepped Mexican law was, at a minimum, quite plausible. In contrast, California law had long provided that nonresidents are no less entitled to own land than residents. Arguably, the conflict in Wong between the laws of California and Mexico was entirely superficial. Perhaps the provisions of California law guaranteeing non-Californians no less right to own land than Californians were intended only to apply to land in California. If so, then Mexican law was the only law that could sensibly be applied to decide the legality of Wong’s ownership of the Mexican land. It is by no means clear, however, that California’s prohibition on discriminating against foreigners in land ownership was intended to apply only to transactions involving California land. If the relevant prohibition had been one barring discrimination on the basis of race, religion, or sex, I suspect that few people would infer that California would have wanted to limit its applicability to cases involving California land. Even assuming, as seems plausible, that California regarded discrimination against out-of-staters as less invidious than discrimination on the basis of race, religion, or sex, California nonetheless may still have regarded discrimination against out-of-staters as sufficiently invidious to call for application of California law to a California resident’s claim to own out-of-state land. The majority in Wong assumed that the case presented an actual conflict of laws: if California law applies, Wong wins; if Mexican law applies, he loses. The court then proceeded to resolve the conflict by a line of reasoning that anyone familiar with the California Supreme Court’s choice-of-law decisions of the prior two decades had to find rather surprising, to say the least. In 1967 the California Supreme Court in Reich

68 69 70

Although the court did not explicitly make a finding to this effect, it seemed to do so implicitly. See id. at 576. The relevant provisions of Mexico’s constitutional and statutory law are set forth in a lengthy footnote in the court’s opinion. See id. at 571 n.2. See id. at 578-79 (Mosk, J., dissenting).

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v. Purcell71 had become one of the first state supreme courts to reject the traditional place-of-wrong rule in favor of the governmental interest analysis approach. Moreover, in subsequent cases, the California high court had cemented its role as a leading court in choice of law with a series of opinions applying interest analysis and working through its complexities.72 Nonetheless, Justice Reynoso’s majority opinion in Wong in 1985 relegated the application of governmental interest analysis to a footnote near the end of the opinion.73 Instead, it focused on the situs rule traditionally used in real property cases, traditional notions of comity, and California Supreme Court cases predating—by as much as seventy years—the high court’s explicit break with tradition in Reich v. Purcell. Indeed, with the exception of its solitary footnote discussion of interest analysis—a discussion that has all the markings of something tacked on after the fact in response to the dissent—the majority opinion could cause the reader to wonder if he or she had somehow entered a time warp and was reading an opinion written in 1925 rather than 1985. Aside from being rather anachronistic, the majority’s reasoning is less than a model of clarity and requires some degree of reconstruction. It essentially appears to proceed as follows: The Wong case implicates considerations of “comity” because one of the key “factors” comprising the “philosophy behind the comity doctrine” comes into play.74 This factor is “respect for the sovereignty of other states or countries,”75 and in the instant case, it counsels that: Consistent with our duty to respect Mexico’s right to determine her own internal policies, we should defer to her laws implementing those policies when they are directly implicated in the case at hand. To do otherwise would unnecessarily upset the relationship of friendship and mutual respect we enjoy with our southern neighbor … .76

Moreover, Mexico’s policies meet the above-stated condition for deference of being “directly implicated in the case at hand,” because the situs rule traditionally applied in real property conflicts cases calls for the application of Mexican law. Very simply, “the law with which we deal is situated in Mexico, and it is a fundamental principle of the law of conflicts that questions relating to control of real property are to be determined by the law of the jurisdiction in which the property is located.”77 71 72

73 74 75 76 77

432 P.2d 727 (Cal. 1967). See Offshore Rental Co. v. Continental Oil Co., 583 P.2d 721 (Cal. 1978) (addressing, among other things, the relevance to interest analysis of a statute’s “current status”); Bernhard v. Harrah’s Club, 546 P.2d 719 (Cal. 1976) (adopting a “comparative impairment” approach for resolving true conflicts); Hurtado v. Superior Court, 522 P.2d 666 (Cal. 1974) (holding forum law applicable in cases in which no states have an interest, and clarifying the nature of deterrent interests). Wong, 702 P.2d at 577 n.13. Id. at 575. Id. Id. Id. at 576-77.

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If, as the majority opinion seems to suggest, the court in Wong was trying to make the choice of law most likely not to “upset the relationship of friendship and mutual respect we enjoy with our southern neighbor,” it made the obviously correct choice. After all, how could Mexico possibly feel that its sovereignty had been disrespected by a California court’s choosing Mexican law? There is good reason to question, however, whether the Wong court should have given good relations with Mexico as much weight in its choice-of-law decision as it apparently did. By setting its sights on making the choice of law most conducive to good international relations and selecting Mexican law, the court implicitly gave priority to the policy of serving international needs over competing choice-of-law policies that militated in favor of a choice of California law. Under the facts of the case, the priority that the court assigned to serving international needs may well have been undeserved. At the very least, to be persuasive in its choice of law, the court needed to make a much more candid and explicit assessment of the weight to which the various choice-of-law policies competing for application were entitled. On the one hand, the court essentially ignored several choice-of-law policies that in combination militated strongly in favor of California law. Most obviously, these policies included the policies that always support a choice of forum law—ease of ascertainment, avoidance of judicial error in application, and vindication of the forum state’s basic sense of justice. In addition, the policies included one of effectuating California’s discrete interest in Wong in applying its nondiscrimination principle to a controversy involving a Californian invoking the protection of that home-state principle and California corporate entities seeking to escape the liability that this principle of their home state would impose upon them. On the other hand, the court tacitly assigned great weight to the choice-of-law policy of maintaining harmonious international relations without making any serious attempt to gauge the magnitude of the threat to good relations posed by a choice of California law in the case at hand. At a minimum, unless a choice of California law was reasonably likely to have a significant adverse effect on good relations with Mexico, it is hard to imagine that the court was justified in giving priority to the policy of maintaining harmonious international relations over the policies that militated in favor of choosing California law. Moreover, by all indications, the likelihood that a choice of California law would have a significant adverse effect on good relations with Mexico was slim at best. First of all, as the majority in Wong acknowledged78 but seemed to assign little significance, Mexico was hardly unalterably opposed to foreigners’ acquiring interests in Mexican land. To be sure, the relevant Article of the Mexican Constitution of 1917 begins with a sentence that sounds like a categorical prohibition on foreign ownership of Mexican land: “Only Mexicans by birth or naturalization and Mexican companies have the right to acquire ownership of lands, waters, and their appurtenances. …” 79 The Article goes on to provide, however, that if certain conditions are met, Mexico

78 79

Id. at 575. Mex. Const. art. 27, § I.

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“may grant the same right to foreigners.”80 Moreover, a Mexican statute enacted in 1973—one entitled “Law for the Promotion of Mexican Investment and Regulation of Foreign Investment”—leaves no doubt that, despite longstanding and historically justified concerns about possible foreign exploitation of Mexican resources, Mexico recognizes the value of, and need to make room for, foreign acquisition of interests in Mexican land.81 Whether or not the dissenting judge in Wong was correct when he maintained that Wong’s land ownership arrangement was entirely legal under Mexican law,82 that arrangement was almost certainly not as offensive to Mexican policy as the majority seemed to assume. Second, the decision in Wong promised to have so little impact on any Mexican national interests that the probability that Mexico would be seriously offended by the California court’s choice of California law was especially remote. Regardless of whether the court treated Wong’s land ownership as lawful or not, nothing that the California court might say could possibly bind Mexico. Mexico was not a party to the litigation, and its ability to enforce its land ownership policies against Wong by whatever means it saw fit was not arguably before the California court for resolution. Furthermore, even assuming, for purposes of argument, that Mexico’s national interests would be materially implicated if a Mexican resident stood to win or lose in Wong, Mexico still had no significant stake in the choice of law. Wong was a California citizen, and H-M-T and Tenneco were based in California as well. VI. Conclusion The needs of the interstate and international systems occupy a curious place in U.S. choice of law. Courts’ choice-of-law methodologies generally recognize that these needs deserve serious consideration in choice of law. Indeed, the most widely adopted methodology—that of the Second Restatement—strongly suggests that these needs are the paramount consideration in choice of law. In practice, however, the needs of the interstate and international systems have figured only marginally in courts’ decisions on choice of law. Even on the rare occasions that the needs are mentioned in the courts’ opinions, they often play no meaningful role in the final resolution. Although the needs of the interstate and international systems do not deserve priority over the needs of the forum, they do deserve more careful and systematic consideration than they generally have received to date. The difficulties inherent in identifying important interstate and international needs and in gauging how strongly those needs militate in favor of a particular choice of law are not insubstantial. I have no doubt that this essay does not resolve all these difficulties, but I am hopeful that it will encourage others to explore them further.

80 81 82

Id. Key parts of the statute are quoted in Wong, 702 P.2d at 571 n.2. Id. at 578-79 (Mosk, J., dissenting).

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Chapter 15 More Than What Courts Do: Jurisprudence, Decision, and Dignity—In Brief Encounters and Global Affairs Robert D. Sloane*

Any law that uplifts human personality is just. Any law that degrades human personality is unjust. —Martin Luther King, Jr.1

Describing Baruch de Spinoza, Matthew Stewart wrote: Some philosophers merely argue their philosophies. When they finish their disputations, they hang up the tools of their trade, go home, and indulge in the well-earned pleasures of private life. Other philosophers live their philosophies. They treat as useless any philosophy that does not determine the manner in which they spend their days, and they consider pointless any part of life that has no philosophy in it. They never go home.2

The same, perhaps, may be said of jurisprudence. If so, then, like Spinoza, W. Michael Reisman, this book’s honoree, falls clearly into the latter category. His jurisprudence informs his work and his life—as a scholar, teacher, practitioner, friend, and public citizen. Having been privileged to know or work with him in most of these capacities, I have often been struck by how the methods and injunctions of the New Haven School shape his personal, no less than professional, character traits. He exhibits an acute sensitivity to context, cultivates a studied habit of disengaging from biases, and always reflects on arguments before replying: he responds rather than reacts. Not co*

1

2

This essay is the edited transcript of the author’s opening remarks for a panel on jurisprudence at “Realistic Idealism in International Law: A Conference in Honor of W. Michael Reisman,” held at the Yale Law School on April 24, 2009. It first appeared in the Yale Journal of International Law. See 34 Yale J. Int’l L. 517 (2009). It has been very lightly revised for republication in this volume. Martin Luther King, Jr., Letter from Birmingham City Jail (1963), reprinted in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King Jr. 289, 293 (James Melvin Washington ed., 1986). Matthew Stewart, The Courtier and the Heretic 54 (2006).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 261-269.

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incidentally, the New Haven School encourages these traits, and no living scholar or practitioner is identified more closely with it than Reisman. Below, beyond describing some precepts of the School, I want to focus on a few areas in which Reisman made signature contributions to its jurisprudence of realistic idealism. In many introductory jurisprudence courses, students learn that the topic asks two fundamental questions: first, what distinguishes legal norms from other norms, for example, those of etiquette (theories of law); and second, how do, or should, judges decide hard cases, that is, those in which the law does not clearly dictate a single right answer (theories of adjudication)? For the international lawyer, it should be immediately apparent that the utility of both questions is profoundly limited. Consider their respective assumptions: first, that qualitative features of certain norms (pedigree or other criteria of legal validity) do distinguish genuine legal norms from other sorts of norms; and second, that judges constitute the paradigmatic, if not exclusive, appliers of law. In the notoriously decentralized and often unstable international legal system, neither assumption necessarily holds. International lawyers must ascertain the extent to which a host of putative governing norms (whether traditionally deemed legal or not) affect the decisions of diverse, politically relevant actors,3 meaning those with effective power in equally diverse contexts: from domestic courts to sui generis international tribunals to diplomatic fora to “informal channels”4 that many might not even recognize as jurisgenerative. And despite the proliferation of international tribunals,5 it is still true that comparatively little international law is made, interpreted, or enforced by courts—a fortiori if, by courts, we mean domestic courts within a hierarchical legal system with reliable and effective enforcement powers. That is why Reisman has repeatedly stressed that Holmes’s aphorism—that “[the prophecies of what the courts will do . . . are what I mean by the law”6—is so misguided in international law.7 Outside the few contexts in which authority (legitimacy) and control (power) converge in a tribunal of some sort, the international lawyer would be professionally derelict to make decisions or advise clients based on a jurisprudence conceived in terms of a hierarchy of courts applying appropriately pedigreed norms. International lawyers, in particular, but indeed all lawyers, need a methodology that can capture the myriad facts and factors that influence the processes of decision in different legal and political contexts.

3 4

5 6 7

Myres S. McDougal et al., Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188, 189-92 (1968). W. Michael Reisman, International Incidents: Introduction to a New Genre in the Study of International Law, in International Incidents 3, 13 (W. Michael Reisman & Andrew R. Willard eds., 1988). See Thomas Buergenthal, Proliferation of International Courts and Tribunals: Is It Good or Bad?, 14 Leiden J. Int’l L. 267, 268-69 (2001). Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897). See, e.g., Reisman, supra note 4, at 10-11.

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Most jurisprudential scholarship regrettably offers them little help.8 In his “Short Guide for the Perplexed” to the “Hart-Dworkin” debate,9 Scott Shapiro notes that this debate has dominated jurisprudential scholarship in the United States for more than forty years, since Ronald Dworkin published The Model of Rules in 1967, critiquing H.L.A. Hart’s influential reformulation of legal positivism.10 Remarkably, however, and all the more so because Hart devoted a chapter to international law in The Concept of Law,11 one searches the literature on the Hart-Dworkin debate in vain for further attention to international law. Of course, international lawyers have engaged in their own vibrant debate about the nature of international law, generating sundry jurisprudential schools analogous to those in the domestic arena.12 But most mainstream theories of law still tend to beg the question of international law’s status by presupposing the apparatus of a functional state as the paradigm of real law. This is unfortunate and ironic. Hart aspired to elucidate the concept of law, not of any particular legal system.13 He concluded that international law, while perhaps not to be derided in Austinian terms as mere “positive morality,”14 lacks the secondary rules that characterize all mature legal systems.15 Yet perspective, as the New Haven School insists, is crucial. Within a statist paradigm, the conclusion that international law lacks what Hart called secondary rules is virtually tautological. Disengaged from those tacit assumptions, I believe it is clear that international law does have secondary rules—or their rough analogue, what the New Haven School denotes constitutive processes, viz., decisions about how decisions will be made, where, and by whom. It is just that those processes bear scant resemblance to the formal symbols and institutions of law in states. Their complexity, dynamism, and sensitivity to power also render the idea of capturing them in a monolithic rule of recognition even more fanciful than in the domestic sphere.16 If Hart therefore erred in denying that international law is genuine law, then it should stand as an objection to any theory of law writ large that it cannot comprehend the international legal system or offer international lawyers practical guidance. For jurisprudence is not, or should not be, a pejoratively academic enterprise. In fact, international lawyers, even more than their domestic counterparts, have a deeply practical need to understand how the legal system in 8

9 10 11 12 13 14 15 16

Jeremy Waldron’s work stands out as an exception. E.g., Jeremy Waldron, The Rule of International Law, 30 Harv. J.L. & Pub. Pol’y 15 (2006); see also John Finnis, Natural Law and Natural Rights 238-45 (1980) (conceptualizing customary international law). Scott J. Shapiro, The “Hart-Dworkin” Debate: A Short Guide for the Perplexed, in Ronald Dworkin 22 (Arthur Ripstein ed., 2007). Ronald M. Dworkin, The Model of Rules, 35 U. Chi. L. Rev. 14 (1967). H.L.A. Hart, The Concept of Law 213-37 (2d ed. 1994). See Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181, 187-90 (1996). Hart, supra note 11, at 239-40. John Austin, The Province of Jurisprudence Determined (David Campbell & Philip Thomas eds., Dartmouth Publ’g 1998) (1832). See Hart, supra note 11, at 236-37. Cf. Dworkin, supra note 10, at 41-42 (analogous critique in the domestic legal sphere).

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which they operate actually functions. Only then can they responsibly and accurately determine whether and how they might influence it. To those familiar with his work, it will come as no surprise that Reisman, like his intellectual forebears Myres S. McDougal and Harold D. Lasswell, always took a dim view of positivism, critiquing it on descriptive and normative grounds.17 In part, this is because its explanatory force is so manifestly weak in the international sphere. In part, it is because some early and unsophisticated forms of legal positivism, at bottom, mistakenly equate law with naked power. But it is also, in part, because positivism purports to be purely descriptive.18 Like the American legal realists, whom the New Haven School critiqued but upon whose insights it simultaneously built,19 Reisman regards jurisprudence as inescapably—and appropriately—normative. Pretense to a value-free jurisprudence at best obscures normative goals. In fact, if the New Haven School has a birth date, it is the 1943 publication of Legal Education and Public Policy: Professional Training in the Public Interest, in which McDougal and Lasswell argued in relevant part: Even those who still insist that policy is no proper concern of a law school tacitly advocate a policy, unconsciously assuming that the ultimate function of law is to maintain existing social institutions in a sort of timeless statu quo [sic]; what they ask is that their policy be smuggled in, without insight or responsibility.20

Indeed, McDougal and Lasswell conceptually linked the pretense to a policy-neutral legal education to the “outburst of racialism in [Nazi] Germany, … one of several profound recessions from the ideal of deference for the dignity and worth of the individual.”21 From the outset, they therefore insisted on the indispensability of goal clarification, or the identification of preferred policies—a project unified by the moral postulate that law’s ultimate goal should be to promote human dignity. Only after clarifying the policies to be pursued can lawyers responsibly perform their quintessential task: to make, or help others to make, decisions. And the continuous process of authoritative and controlling decision is, in the New Haven School’s view, law itself. This may initially seem counterintuitive. In liberal democracies, lawyers grow accustomed to conceptualizing decisionmaking as a function that follows, rather than precedes, identification of law. But law, like everything else, is in a constant state of flux. The decisions of judges, executive officials, administrative officers, and other elites—those who qualify as politically relevant actors in liberal democracies—tend to be far more predictable than those made in the international legal system because of the congruence of expectations of authority and control in a well-ordered state. 17 18 19 20 21

See generally McDougal et al., supra note 3, at 243-60. See id. at 247. W. Michael Reisman, Theory About Law: Jurisprudence for a Free Society, 108 Yale L.J. 935, 936-37 (1999). Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203, 207 (1943). Id.

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Still, it is the process of authoritative and controlling decision about the distribution of values that constitutes law in the sense that matters to clients. That is why Reisman often stresses that to be truly effective, lawyers must distinguish a legal system’s “myth system” from its “operational code.”22 As he wrote in one characteristic exposition: Whatever you may mean by law, [clients] have a practical interest in how things are done in a certain setting and by law they mean those expectations shared by relevant members of the group about the right way of doing things, expectations taken seriously enough by group members so that they will probably be sustained by some individual or group effort.23

Analytically, Reisman and his colleagues therefore conceptualized law-making, or norm prescription, in terms of three coordinate communicative dimensions: (1) policy content, the extent to which a norm communicates a directive or prohibition: “thou shalt” or “thou shalt not”; (2) authority signal, the extent to which, empirically, the processes generating that norm and the symbols attached to it convey a sense of legitimacy or propriety to the normative communication’s recipients; and (3) control intention, the extent to which those recipients expect that those with effective power will invest sufficient resources to make the norm effective—in common parlance, to enforce it.24 All norms vary in clarity or strength along these dimensions. By methodically inquiring into each, the lawyer will be able to advise clients and shape the law far more effectively than by focusing solely on the familiar epistemic units of state law: statutes, administrative rules, appellate decisions, and other sources.25 Of course, in a well-ordered legal system like that of the United States, lawyers at times justifiably assume that authority and control will converge in identifiable institutions, especially courts. That is why appellate decisions generally offer a reliable prophecy of “what the courts will do in fact.”26 Given the authority of courts in the United States and their reliable ability to enforce their decisions with state coercion, it is also why the prophecies of what the courts will do matter so much to U.S. clients. Yet it would be a manifestly catastrophic mistake to transpose Holmes’s maxim to, say, nineteenth-century Venezuela, in which the formal trappings of a legal system—replete with jurists, courts, legislators, executive agents, and so forth—existed but in fact served as a veneer for caudillismo (de facto rule by a “strong man or Boss to whom subordinates owe personal rather than formal authority”).27 Still, 22 23 24

25 26 27

W. Michael Reisman, Folded Lies: Bribery, Crusades, and Reforms 16 (1979). W. Michael Reisman, Law from the Policy Perspective, in International Law Essays 1, 2 (Myres S. McDougal & W. Michael Reisman eds., 1981). See generally W. Michael Reisman, International Lawmaking: A Process of Communication, The Harold D. Lasswell Memorial Lecture (Apr. 24, 1981), in 75 Am. Soc’y Int’l L. Proc. 101 (1981). Reisman, supra note 4, at 5-8. Id. at 9; see also Holmes, supra note 6, at 461. W. Michael Reisman, Book Review, 29 Am. J. Comp. L. 727, 727-28 (1981) (reviewing Rogelio Pérez Perdomo, El Formalismo Jurídico y sus Funciones Sociales en

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many lawyers assume, consciously or not, that Holmes’s vision can be transposed to the international legal system: small wonder that they conclude, with Austin, that there is no international law “properly so-called.” To be effective in the international system, lawyers must scrutinize unfamiliar epistemic units, well beyond case law and texts. They must appreciate how the social processes to which international law is attached work, viz., who actually makes authoritative and controlling decisions— where, when, and how. Ironically, many critique the New Haven School as impracticable—too abstruse to be useful to practitioners.28 Nothing could be further from the truth, and Reisman’s work, as a scholar and practitioner, is living proof. The School’s methodology is not easy. In its quest for informed decision in the service of clear goals, it seeks comprehensively to map and scrutinize the factors, which, within any legal system, will be genuinely enlightening. It has developed methodical modes of inquiry in this regard, drawn from the social sciences, which seem almost Aristotelian in their precision and categories: four intellectual tasks,29 seven dimensions of the social process,30 seven decision functions,31 and eight values.32 Yet this is one reason why the School, for all its apparent complexity, has proven so durable and attractive, not only to U.S. lawyers, but to generations of foreign students. It strives to identify and map the factors that lawyers would ideally know before advising others about, making, or appraising decisions in any legal environment: from the microlegal system governing “Looking, Staring, and Glaring,”33 to domestic legal systems of varying levels of stability and order, to the dynamic and often disorganized processes of international law. One of Reisman’s signature contributions to the New Haven School lies in his ability to expound its methods succinctly—to show, despite its facial complexity, how

28 29

30 31 32

33

el Siglo XIX Venezolano (1978)) (describing the coexistence of legal formalism and the operational code of caudillismo in nineteenth-century Venezuela). Roscoe Pound’s sociological jurisprudence and, in particular, his distinction between “law on the books” and “law in action” supplies an influential antecedent of this distinction. Roscoe Pound, Law in Books and Law in Action, 44 Am. L. Rev. 12 (1910). E.g., Oscar Schachter, McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 Am. Soc’y Int’l L. Proc. 266, 268 (1985). Clarification of perspective, selection of appropriate focal lenses, mapping of community processes, and deliberation culminating in choice—itself a process subdivided into five steps: goal clarification, trend analysis, factor analysis, predictions, and invention of alternatives. W. Michael Reisman, A Jurisprudence from the Perspective of the “Political Superior,” 23 N. Ky. L. Rev. 605, 613-20 (1996). Participants, perspectives, situations, bases of power, strategies, outcomes, and effects. Reisman, supra note 23, at 4, 13. Intelligence, promotion, prescription, invocation, application, termination, and appraisal. Id. at 4. Power, enlightenment, wealth, well-being, skill, affection, respect, and rectitude. Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1, 12-13 (1959). W. Michael Reisman, Law in Brief Encounters 21 (1999).

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practical it proves.34 Consider one example: Secretary-General Ban Ki-moon asks you to advise the United Nations on how best to restore a degree of order sufficient for the supply of humanitarian aid to Somalia’s people to resume.35 How, as a lawyer, would you approach this problem? Reliance on text, precedents, and logical operations performed on traditional legal sources may make good sense in judicial or arbitral fora: contrary to a common misconception, the New Haven School jurist would not counsel, for example, the transnational business lawyer in an arbitration to engage in an “endless quest for shared expectations, value preferences and power relations on a global scale.”36 In that context, familiar lawyerly tasks would be contextually appropriate, and insofar as traditional legal materials (texts, precedents, etc.) may be expected to be authoritative and controlling in context, the New Haven School jurist would be as likely to rely upon them as any other. But often the international lawyer’s tasks defy resort to traditional methods and sources, which at best reveal the myth system rather than the operational code of a legal system. In the context of seeking to effect the resumption of humanitarian aid in Somalia, formal legal sources alone would be manifestly inadequate to the task. This is not to say that they don’t matter; only that their contextual relevance differs immensely. They may supply information about normative trends or preferred policy outcomes. But textual reliance alone would be absurd. To the New Haven School jurist, however, it would be equally mistaken to characterize the situation in Somalia as legal anarchy. Where a community exists, so does law. The legal systems (plural) within the politically anarchic state of Somalia would be quite complex and variable. But the careful jurist would find that diverse processes of authoritative and controlling decision indeed exist, overlap, and interact throughout Somalia. So how should the international lawyer plausibly think about Secretary-General Ban’s assignment in Somalia? With whom should she deal? To be effective, she must first be able to identify all the participants, understand their roles, appreciate their modes of decision, and comprehend their relationships to one another. She would likely find the local scene controlled by a complex blend of private armies, clans, criminal gangs, multinational corporations seeking to protect their investments, agents of foreign governments trying to promote political or economic interests, religious leaders with authority among sectors of the local populace, nongovernmental organizations trying to ameliorate sickness and hunger, and transnational terrorist networks seeking to establish a safe haven. She would need to identify the relevant loci of authority and control that together would determine the likely efficacy of efforts to instantiate new norms—in this case, norms that might enable aid supplies to resume. But where, as in Somalia, effective institutions do not exist, she would also need to consider how to craft legal arrangements so that either (1) politically relevant actors perceive them as in their self-interest, or (2) external actors may be mobilized, 34

35 36

See, e.g., Reisman, supra note 4, at 3; Reisman, supra note 23, at 1; W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118 (1992). I have adapted this example from Reisman’s 2007 Hague Academy lectures. Schachter, supra note 28, at 268.

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if necessary, to deploy coercion—which, it should be stressed, need not mean violence; it includes diplomatic, ideological, and economic, as well military, means. Beyond mapping the decision process for purposes of prediction and efficacy in a range of legal settings, the New Haven School seeks to enhance that process—to empower individuals to participate effectively in it and to promote the optimal shaping and sharing of values. This makes its jurisprudence particularly attractive to the disenfranchised. It supplies them with the tools to become effective participants in the legal process—and not simply political inferiors, searching for rules to obey. Unlike positivism, the New Haven School encourages lawyers to adopt the perspective of the political superior, a perspective particularly well suited to international law. The instability, decentralization, and diversity of the international system, while often lamentable, generates ample opportunities for lawyers to shape and creatively influence international law. The School seeks to identify those opportunities as a means to empower lawyers “to influence the way social choices are continuously made about the production and distribution of resources, including considerations about the ways that decisions should be made about those things.”37 Because, in international law, the convergence of authority and control is often the exception rather than the rule, the practice of international law requires, as Reisman has often said, the cultivation of realism, especially about the role of power.38 Yet the extent to which “power trumps” in many areas of international law must not, as he has been equally quick to insist, lead lawyers to lose their sense of indignation at injustice and violations of human dignity. A parochial focus on power, without recognizing that all power is relative, and without the creative formulation and pursuit of goals, culminates in nihilism—or in a sterile intellectualism that denies the efficacy of international law without appreciating the extent to which this kind of cynicism is a self-fulfilling prophecy. Understanding power’s role in international law does not mean apologizing for it: That, international law notwithstanding, a large state will intervene in the affairs of a smaller state if it deems its own security threatened does not mean that it is right for it to do so. … It does mean that people in the smaller or larger state who are trying to develop a realistic set of matter-of-fact expectations … will be wise to put this possibility into their reckoning.39

How, then, can international lawyers ultimately be effective in a system in which myth system and operational code frequently diverge? The answer lies in another of Reisman’s key contributions to the New Haven School: If every legal system can best be understood in terms of a continuous flow of normative communications with varying levels of authority and control, then the more authoritative the communication, the less it will need to rely on coercion; conversely, the less authoritative the communication, the more law must rely on coercion. That is why well-ordered legal

37 38 39

Reisman, supra note 29, at 616-17 (emphasis added). Reisman, supra note 4, at 10, 13. Reisman, supra note 23, at 9 (emphasis added).

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systems with authoritative formal institutions seldom need to rely on overt coercion to preserve the law or compel enforcement. Effective institutions would be preferable in the international system as well. Yet until international law reaches that point (and that day is surely not near), effective international lawyering requires crafting arrangements such that sufficient numbers of politically relevant participants see those arrangements as in their self-interest. That, in brief, is what a jurisprudence of realistic idealism in international law requires. The legacy of Reisman’s jurisprudence of realistic idealism emerges not only in his own scholarship and practice, but in that of his many students, friends, and colleagues, including the contributors to this volume, whose intellectual and professional lives he has indelibly marked.

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Chapter 16 Reconfiguration of Authority and Control of the International Financial Architecture Eisuke Suzuki

I. Introduction In the midst of the global financial crisis that was unfolding in September 2008 and the subsequent measures to deal with the deepening global financial meltdown,1 we witnessed a few extraordinary events which attest to the global review of financial policy and practices that were taking place. The President of the world’s largest economy said matter-of-factly, “I’ve abandoned free market principles to save the free market system.”2 The Bush administration asked Congress on September 20, 2008, for 700 billion to bail out firms burdened with bad mortgage debt, seeking unfettered authority for Treasury Secretary Henry Paulson as he tackled the worst financial crisis since the Great Depression. This bailout plan followed a wrenching week of the spectacular failure of Wall Street.3 The global financial crisis was developing in the midst of the U.S. presidential election campaign, and it inevitably embroiled the candidates in search for alternative policy choices as ordinary taxpayers were getting angry and demonstrating on the street against this humongous 700 billion bailout proposal. November 4, 2008 1

2 3

Akbar E. Torbat, Global Financial Meltdown and the Demise of Neoliberalism, Oct. 13, 2008, Global Research, Center for Research on Globalization, available at http:// www.globalresearch.ca/index.php?context=va&aid=10549 (visited Dec. 24, 2008); see also Anup Sha, Global Financial Crisis 2008, Global Issues, Dec. 7, 2008, available at http://www.globalissues.org/article/768/global-financial-crisis (visited Dec. 24, 2008). President George W. Bush’s interview with CNN, Dec. 16, 2008, available at http:// thinkprogress.org/ 2008/12/16bush-free-market/ (visited Dec. 24, 2008.) See Andrew Ross Sorkin, Lehman Files for Bankruptcy; Merrill Is Sold, N.Y. Times, Sept. 14, 2008, available at http://www.nytimes.com/2008/09/15/business/15lehman.html (visited Jan. 3, 2009); see also The Last Days of Lehman Brothers, N.Y. Times, Oct. 6, 2008, available at http://dealbook.blogs.nytimes.com/2008/10/06/the-last-days-oflehman-brothers (visited Jan. 3, 2009); Edmund L. Andrew, Michael J. de la Merced & Mary Williams Walsh, Fed’s 85 Billion Loan Rescues Insurer, N.Y. Times, Sept. 16, 2008, available at http://www.nytimes.com/2008/9/17/business/17insure.html (visited Jan. 3, 2009).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 271-297.

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was not only the U.S. Presidential Election Day; it was also the Election Day for 35 Senators and all 435 Members of the House of Representatives. They had to face their own constituencies’ angry voters. In the end the campaign reinforced a general clamour for review of the adequacy of the existing policy and regulatory framework of financial institutions.4 The end result of intense negotiations between the Bush Administration and the bipartisan Congressional leadership was the “Emergency Economic Stabilization Act of 2008” which spells out in details how the money will be disbursed in stages.5 According to Professor Michael Reisman, review is “an ongoing process of the reconfiguration of authority and control.”6 In a broader global social process, the public expression of complaints against certain official policies, be it in the form of organized demonstrations or spontaneous outcries against specific instances of application of such policies, is an effort to review the policies adopted earlier in the authoritative decision process.7 In the words of Professor Reisman, The communication decreeing certain value allocations or reallocation will necessarily stimulate a verbal or behavioural response in that segment of the group affected by it. The intensity of the response may remain below a certain threshold, either because of the perceived marginal importance of the values at stake, the compelling authority of the decision, the control that can be mustered to support it, or any combination of these factors. If the response passes the minimum threshold, it becomes legally and politically relevant to speak of the initiation of a process of review. And if, as a result, the decision is not enforced, or is materially altered before it is transformed into a controlling value allocation, it has been reviewed.8

The description of the process of review in those functional terms enables us to describe more accurately what has happened to the international financial architecture. The World Bank’s former Chief Economist and a recipient of the 2001 Nobel Prize in Economics, Professor Joseph E. Stiglitz of Columbia University proclaims,

4

5

6 7 8

Republican members of the House of Representatives revolted against the government’s bailout plan most ferociously. Democrats pressed hard for more oversight and protection of taxpayers’ interest. See Carl Hulse & David M. Herszenhorn, House Rejects Bailout Package, 228-205; Stocks Plunge, N.Y. Times, Sept. 29, 2008, available at http://www. nytimes.com/2008/09/30/business/30bailout.html (visited Jan. 14, 2009). The Emergency Economic Stabilization Act of 2008, Pub. L. 110-342, div. A. It includes the establishment of a Financial Stability Oversight Board; limitations on executive compensation and a ban on any golden parachute payment; judicial review of the Treasury Secretary’s action; stringent reporting and monitoring measures and various measures of protection for taxpayers. Id. Title I- Troubled Assets Relief Program. W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards 15 (1971). Id. at 6. Id. at 6-7.

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We are all Keynesians now. Even the right in the United States has joined the Keynesian camp with unbridled enthusiasm and on a scale that at one time would have been truly unimaginable. For those of us who claimed some connection to the Keynesian tradition, this is a moment of triumph, after having been left in the wilderness, almost shunned, for more than three decades. At one level, what is happening now is a triumph of reason and evidence over ideology and interests.9

This article analyzes some of significant recent developments in the contemporary international financial architecture; some events can be considered claims for review, and other events may be regarded as indicating the decision has been reviewed. In this connection, it cannot be overstated that in the absence of any centralized authoritative decision-maker in the contemporary world community today, interaction among participants in the global social process engenders interdependence, and participants in that process are performing a dual function in the global decision process: national participants, even though acting in a national capacity, are at the same time playing an international role as decision-makers.10 II. Historical Context The global financial crisis of 2008 reminds us of the Asian financial crisis that erupted in Thailand in July, 1997 first, and that quickly spread to Indonesia, Korea, Philippines, and Malaysia in a short span of two months.11 Contrary to the initial attribution of the cause of the Asian financial crisis to weakness in financial systems and lack of governance, the primary reason for the crisis has now been ascribed to the World Bank and the International Monetary Fund’s (IMF) neo-liberal policy prescriptions given to those developing countries on the basis of the Washington Consensus.12 9

10

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Joseph E. Stiglitz, The Return of John Maynard Keynes, Bus. World (Manila), Dec. 9, 2008, at S1/5, available at http://www.project-syndicate.org/commentary/stiglitz107 (visited on Feb. 3, 2009 ). Anup Sha, supra note 1, at 1, writes: “The problem could have been avoided, if ideologues supporting the current economics models weren’t so vocal, influential and inconsiderate of others’ viewpoints and concerns.” See Reisman, supra note 6, at 171-220, 221-64, 637-73; see also Eisuke Suzuki & Suresh Nanwani, Responsibility of International Organizations: The Accountability Mechanisms of Multilateral Development Banks, 27 Mich J. Int’l L. 77, 182 (2005). See Joseph E. Stiglitz, Global Financial System in Need of Reform, Fin. Times, July 2, 2007 (“[It was not an accident that the only two major developing countries to be spared a crisis were India and China. Both had resisted capital market liberalization.”). For an overall analysis of the Asian Financial Crisis, see Ten Years After: Revisiting the Asian Financial Crisis (Bhurmika Muchhala ed., 2007). See Joseph Stiglitz, Globalization and Its Discontents, ch. 4 (Penguin Books 2002). The term “the Washington Consensus” was coined by John Williamson, What Washington Means by Policy Reform, in Latin American Adjustment: How Much Has Happened 5 (John Williamson ed., 1990); available at http://www.iie.com/publications/papers/print.cfm?doc=pub&ResearchID=486 (visited Dec. 26, 2008). He used it as a short-hand expression for the purpose of describing reforms undertaken in Latin

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These two institutions have relentlessly pushed developing countries to liberalize trade barriers, deregulate financial and labour markets, privatize national industries, eliminate subsidies, and reduce social and economic spending.13 The so-called financial structural reforms pursued by both developed and developing countries according to the tenet of neo-liberalism resulted in the dismantling of social programs, the deprivation of employment stability from workers, and the replacement of the government’s obligations by the private business have led to sharply rising inequality, with the rich becoming richer and the poor much poorer. On the whole, these structural reforms unravelled much of what had been achieved by social protection programs and contributed to the re-emergence of immense political and economic inequality today.14 There were three preconditions for the Asian financial crisis of 1997 to occur:15 the first critical precondition was the U.S. dollar policy as developed since the delinking of the U.S. dollar from gold in August 1971. Liberated from the restriction of the Bretton Woods regime, the United States was in a position to let the dollar move up and down as the U.S. Treasury or the U.S. Federal Reserve wished.16

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American countries in the 1980s, but the term has evolved over time to signify a set of neo-liberal policy prescriptions. John Williamson, The Washington Consensus, Revisited, in Economic And Social Development into the XXI Century 48 (Louis Emmerij ed., 1997). See also Moises Naim, Washington Consensus or Washington Confusion?, Foreign Pol’y 87 (Spring 2000). See Ha-Joon Chang, Bad Samaritans: The Guilty Secrets of Rich Nations & The Threat to Global Prosperity13 (2007) (“In relation to the developing countries, the neo-liberal agenda has been pushed by an alliance of rich country governments led by the US and mediated by the ‘Unholy Trinity’ of international economic organizations that they largely control—the International Monetary Fund (IMF), the World Bank, the World Trade Organization (WTO).”); see also Chalmers Johnson, On the Myth of Free Trade, Jan. 24, 2008, available at http://www.truthdig.com/arts_culure/item/20080124_ chalmers_johnson_on_the_myth__of_free_trade/ (visited Dec. 14, 2008). See Torbat, supra note 1, at 6 (“Three decades of neoliberal economic policy has led to widest gap between rich and poor in America as compared to other industrialized nations. During this period, income inequality has deteriorated significantly as is measured by the Gini coefficient. Currently the top 20 of population in America receive about 50 of income, while the lowest 20 get merely 3.4 of the income, and the top 1 own 40 of the wealth. At the same time, real wages have stagnated or declined. Also accumulation of wealth at the top stratum has resulted in domination of political power by the wealthy to rule over the impoverished.”); see also World Bank, World Development Report 1995: Workers in an Integrating World 108-14 (1995). Michael Reisman warned, “the trend towards globalizing so many activities, for all its glowing promises of widespread benefits, conceals, in its dark underside, politically exploitable feelings of personal insecurity, ineffectiveness and inessentiality.” W. Michael Reisman, Designing and Managing the Future of the State, 3 Eur. J. Int’l L. 409, 413 (1997). Peter Gowan, The Global Gamble: Washington’s Faustian Bid for World Dominance 92 (1999). Id. at 19. In 1974, the U.S. government abolished restrictions on the flow of funds into and out of the United States. As “capital controls” were removed, U.S. banks moved in to the

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The second precondition was the success of the U.S. government and of U.S. financial operators in persuading a number of governments in the region to open their financial sectors to inflows of hot money under the guise of neo-liberal economic theories.17 The third precondition was the actual flows of hot money in scale and volume unprecedented in 1995-97. The movement of huge amounts of hot money during this period was made in response to the effects of falling interest rates in the U.S. financial system in the middle of the U.S. boom. Capital rentiers were seeking higher short-term gains in the still rapidly growing economies of the region. “All that was needed by the spring of 1997 was,” said Peter Gowan, “for someone to pull the trigger. That job was one for a handful of US hedge funds.”18 Where there are domestic institutions that are weak; rules of the game that are ambiguous; procedures that are not transparent; and situations that are murky, more opportunities for making huge profits exist, and naturally, speculative capital moves in. Lucrative business flourishes; opportunities for making money grow exponentially; and the margin of profit becomes huge; and, of course, attendant risk always remains a silent partner. So long as these good times continue, concern over the weakness or absence of properly functioning domestic institutions is wilfully attenuated by the investor’s desire to have the higher latitude of investment decision free from the hands of oversight and regulatory agencies of the country concerned. It is undeniable that those foreign investors who had flocked to the rapidly growing economies of the region made huge profits.19 “The powerful root of moral hazard,” recalled the Report of the International Financial Institution Advisory Commission of the United States Congress, “lies in the IMF’s encouragement, or lenders’ perception of its encouragement, of short-term, foreign currency loans to developing countries,

17

18 19

City of London, an “off-shore” money center which was not regulated by any authorities. U.S. financial operators demanded that other countries, too, remove “capital controls” on the flow of money into and out of these countries in the name of “liberalizing” financial services. Id. at 22-24. Id. at 93; see also Walden Bello, Kamal Malhotra, Nicola Bullard & Marco Mezzera, Notes on the Ascendancy and Regulation of Speculative Capital, in Global Finance: New Thiking On Regulating Speculative Capital Markets 3 (Walden Bello, Nicola Bullard & Kamal Malhotra eds., 2000). Gowan, supra note 15, at 93. Consider the following comment by a participant-observer: “Western lenders lend recklessly in good times and, when the loans fail, they are bailed out, stringent and contractor conditions are imposed on the borrowing governments, asset prices collapse and a vast majority of the population is made poorer. Foreign investors then walk into markets pried open for them by the IMF and pick up assets cheaply. This modern, bloodless colonialism is very neat.” V. Anatha-Nageswaren, Credit Suisse Private Banking, Letter to the Editor, We Must Abandon This Bloodless Colonization, Fin. Times, Sept. 2, 1998, at 10; see also Nancy Birdsall, A Stormy Day on an Open Field: Asymmetry and Convergence in the Global Economy, in Globalisation, Living Standards And Inequality: Recent Progress and Continuing Challenge 67 (David Grun, Terry O’Brien & Jeremy Lawson eds., 2002), available at http://www.rba.gov.au/PublicationsAndResearch/ Conferences/2002/Birdsall.pdf (visited Feb. 27, 2009).

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particularly where the domestic banking and financial infrastructure is weak.”20 The 1997 Asian financial crisis was a capital account crisis, i.e., too much lending to private firms and then too rapid capital flight. Thus, “the fact that the crisis spread beyond Thailand,” concluded John Williamson, was “the result of the East Asian countries having engaged in premature liberalization of the capital account.”21 Under the rubric of the Washington Consensus, the International Financial Institutions (IFIs) led by the World Bank and the IMF have preached the gospel of “free trade” as a pathway to global economic nirvana as a matter of faith. Free trade is, in the words of Professor Stiglitz, “a stale and repugnant ideology,”22 which has nonetheless become global laissez-faire, thanks to the power of the United States and the IFIs and the World Trade Organization (WTO).23 Neo-liberalists of the IFIs introduced a few conceptual devices to underpin the IFIs’ policy such as “cost recovery,” “level playing field,” “the private sector as the engine of growth,” and “ownership.” In stressing cost-recovery in all social service sectors, for which the government was primarily responsible, the Washington Consensus sought to wipe out all kinds of state subsidy for the reason that any subsidy distorted the real cost of the service provided or the commodities and goods produced. At the same time the notion of the so-called “level playing field” was introduced with a view to opening markets for foreign business.24 The national treatment principle of WTO means equal treatment of domestic and foreign products once border charges are paid, but free markets of developing countries are not the same as those of developed countries. When players of two teams of different sizes meet at the playing field of developing countries, the only “equalizer” that would allow “fair play” is the assignment of handicaps, that is, certain restrictions to be imposed on stronger visiting team players or allocating points to weaker home team players to compensate for their shortcoming. The national treatment principle 20 21 22

23 24

Report of the International Financial Institution Advisory Commission 33 (Allan H. Meltzer, Chairman, March 8, 2000) [hereinafter Meltzer Report]. John Williamson, Development of the Financial System in Post-Crisis Asia 4 (ADB Institute Working Paper 8, March 2000). Joseph Stiglitz, The IMF’s Missed Opportunity, Bus. World (Manila) Sept. 7-8, 2001, at 1, available at http://www.project-syndicate.org/commentary/stiglitz6 (visited Feb. 3, 2009). See Eisuke Suzuki, The Fallacy of Globalism and the Protection of National Economies, 26 Yale J. Int’l L. 319 (2001). The notion of a “level playing field” only refers to the rules of admission to play and the rules of the game. It entirely ignores two essential conditions of the game: the quality of the ground on which the game is supposed to be played and the disparity of each player’s strength. Some home teams’ playing grounds are levelled, but are still rough and hard without green grass; they become muddy or, worse, washed out whenever it rains. The size of home team players is shorter, less robust. They may be in high spirits, but obviously lack resources to match those of visiting team players: capital, technical know-how, organizational capacity, human resources, prestige, and the overall wealth of experience in the game. See Birdsall, supra note 19, at 67-68, 82.

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and the notion of a level playing field forced free competition without class differentials. In short, such competition is akin to a match between heavyweight and bantamweight boxers.25 Another good example is the importance of the private sector as reflected in the famous phrase uniformly employed by all the IFIs, “the private sector is the engine of growth.” This statement, as a matter of history, is false. The key to East Asia’s success, long preceding the present success of India and China, was selective liberalization pursued under strategic industrialization driven by the government. Korea “nurture[d] certain new industries, selected by the government in consultation with the private sector, through tariff protection, subsidies and other forms of government support (e.g. overseas marketing information services provided by the state export agency) until they ‘grew up’ enough to withstand international competition.”26 Industrialization strategies of Japan, Taiwan, and Korea included educational policies, establishment of public enterprises, credit subsidies and tax incentives for priority industries, and export promotions, including duty-free access to inputs and capital goods. Trade liberalization has been the outcome of economic development—not its cause. India and China, two most talked-about economic super idols of globalization today, were controlled and command economies, respectively. It was the government concerned that set policy and allocated national resources to achieve its policy objective.27 The dogma of minimalist states does not reflect the historical development of any state. Any proposition presented as a matter of faith is not subject to empirical verification. The proposition that “the private sector is the engine of growth” is a myth. The Washington Consensus policy, pushed by the IFIs, is the imposed uniformity of principles and practices under the name of globalization. Behind it lies the responsibility of each government which has adopted the uniformity of principles and practices of globalization under the tutelage of the IFIs. It is the governments themselves that are alone responsible for whatever consequences globalization brings about. Likewise, the Washington Consensus has also reinvented the idea of “ownership” of a project to be financed by IFIs. The reinvented idea of “ownership” has a curious twist in its focus. The focus is not so much upon who is the owner of a project as upon who should be responsible for the risk and cost entailed in the project. The idea of “ownership” implicitly ascribes the locus of responsibility and its corresponding li25 26

27

Id. at 68, 74. Ha-Joon, Bad Samaritans: The Guilty Secrets of Rich Nations & the Threat to Global Prosperity 14 (2007); see also Chalmers Johnson, Miti and the Japanese Miracle (1982) See Ankie Hoogvelt, Globalization and the Postcolonial World: The New Political Economy of Development, ch.10 (1997). As Friedrich List said, sometimes a country needs to “sacrifice some present advantages in order to insure to itself future ones.” 2 Friedrich List, The National System of Political Economy 35 (Sampson S. Lloyd trans. 1885; Dry Bones Press ed., 1999, 2000); see also Ha-Joon Chang, Stateowned Enterprise Reform, in United Nations, National Development Strategies—Policy Notes 113-56 (2008) [hereinafter Policy Notes].

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ability to the government concerned. Hence, in times of financial crisis brought about by financial liberalization, it is the developing member country (DMC) governments that must shoulder the pain of adjustment under IMF loans while foreign speculative capital is effectively bailed out, at the expense of DMC taxpayers, ostensibly to restore “investor confidence!”28 It is evident that major developed countries value IFIs as a useful vehicle through which to pursue the objectives of their foreign policy. Since these IFIs are multilateral institutions, they become a convenient “cover” under which the real source of policy initiatives could be attenuated. If any given policy were adopted, it became a multilateral institution’s policy. In the end, IFIs’ policy initiative and those of individual bi-lateral assistance policies are conjoined.29 Indeed, the Meltzer Report correctly summed it up by stating that “[t]he G-7 governments, particularly the United States, use the IMF as a vehicle to achieve their political ends. …” 30 and that “[i]f the G-7 finance ministers can agree on a policy that they wish to pursue, for whatever reason, they can use the IMF as the instrument of that policy.”31 III. Process of Review The global financial meltdown of September 2008 that started in Wall Street, New York City, engulfed all major financial centres the world over.32 The speed at which financial meltdown spread and the scale of that meltdown underscore the reality of globalization. The global financial crisis has exposed the fragility of discrete international financial regimes which are each subject to national jurisdiction, but have become part and parcel of the present international financial architecture.33 28

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All these conceptual devices were promoted as part of “a paradigm shift.” A paradigm is what the members of a particular scientific community share, and its entry is “intrinsically circular” because that particular scientific community consists of those scientists who share a paradigm! The Washington Consensus being merely the product of that particular community, there is no paradigm “shift” outside that particular community. Thomas Kuhn, The Structure of Scientific Revolutions 176 (2d ed. 1970); see also Charles Gore, The Rise and Fall of the Washington Consensus as a Paradigm for Developing Countries, 28 World Dev. 789 (2000). For the most insightful account of how multilateral development banks operate, see Percy S. Mistry, Multilateral Development Banks 118-20 (1995). See also W. Michael Reisman, The United States and International Institutions, 41 Survival 62 (2000). Meltzer Report, supra note 20, at 40. see also id. at 20 (“A majority of the Commission agrees that [one of ] the main problems of the international financial institutions [is] commandeering of international resources to meet objectives of the U.S. government or its Treasury Department.”). Id. Sha, supra note 1. For a summary of week-by-week developments of the financial crisis was given in Global Financial Crisis of 2008, at http://en.wikipedia.org/wiki/Global_financial_crisis_of_2008 (visited Dec. 24, 2008). See George Soros, The Crisis of Global Capitalism 119 (1998) (“Most regulations are national in scope, so the globalization of markets meant less regulation and vice ver-

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A. Trans-Atlantic Arena and Beyond Following the delayed reaction of the US Treasury Department to deal with an emerging financial crisis,34 European finance ministries also initially exhibited haphazard consultations among the European Union’s leaders which eventually led to some governments’ decision to guarantee deposits in banks and to re-capitalize those affected banks either extending loans or directly purchasing equity in these banks.35 The financial crisis also exposed that the EU was not equipped with any EU-wide regulatory framework to deal with such banking and financial crisis. It is now generally understood that the unfettered and rampant subprime mortgage lending, and the greedy high risk investment of financial institutions are the principal cause of the financial crisis.36 It signalled the end of “Reaganomics,”37 which had promoted unfettered free enterprises with little regulation, as well as the demise of the Washington Consensus, which the IMF and the World Bank had vigorously promoted.38 In an effort to tackle a growing financial crisis, as agreed by U.S. President George W. Bush, French President Nicolas Sarkozy and European Commission President Jose Manuel Barroso,39 the first summit was held on November 15, 2008 in Washington,

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sa.”); see also Bello et al., supra note 17, at 6 (“Deregulation at the national level has not been replaced by reregulation at the global level.”). See Joe Nocera & Edmond L. Andrews, Struggling to Keep Up as the Crisis Raced On, N.Y. Times, Oct. 22, 2008, available at http://www.nytimes.com/2008/10/23/business/ economy/23paulson.html (visited Dec. 29, 2008). David Jolly & Katrin Bennhold, European Leaders Agree to Inject Cash Into Banks, N.Y. Times, Oct. 12, 2008, available at http://www.nytimes.com/2008/10/13/ business/13europe.html (visited Dec. 29, 2008). Jo Becker, Sheryl Gay Stolberg & Stephen Labaton, The Reckoning—White House Philosophy Stoked Mortgage Bonfire, N.Y. Times, Dec. 21, 2008, available at http://www. nytimes.com/2008/12/21/business/21admin. html (visited Dec. 23, 2008). See, e.g., Frank Ackerman, Reagonomics: Rhetoric vs. Reality (1982); Bruce R. Bartlett, Reaganomics: Supply Side Economics in Action (1981). Immanuel Wallerstein, 2008: The Demise of Neoliberal Globalization, Feb. 4, 2008, Yale Global Online, available at http://yaleglobal.yale.edu/display.article?id=10299 (visited Jan. 4, 2009); see also Suzuki, supra note 23. Alan Greenspan, former U.S. Federal Reserve chairman, who was regarded as a free-market icon on Wall Street, now acknowledges that “I made a mistake in presuming that the self-interest of organizations, specifically banks and others, was such that they were best capable of protecting their own their shareholders.” Alan Beatlie & James Politi, “I Made A Mistake,” Admits Greenspan, Fin. Times, Oct. 23, 2008, available at http://www.ft.com/cms/s/0/aee9e3a2-a11f-11dd-82fd000077b07658.html?nclick=1 (visited Jan. 15, 2009). White House Press Release, Oct. 18, 2008, Statement of the U.S., France and the Presidency of the European Commission, available at http://www.whitehouse.gov/news/ release/2008/10/20081018-2.html (visited Dec. 30, 2008). European Commission President Barroso said: “The international financial system its basic—principles and regulation and its institutions need reform. We need a new global financial order.” White House

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D.C. with the Group of Twenty (G-20), a group of systemically significant developed and developing countries that account for almost 90 percent of the world economy. There was also a broader parallel demand for leadership other than the Group of Seven’s (G-7) initiative. UN Secretary General Ban Ki-Moon offered on October 18, 2008 to host the finance summit in the UN headquarters in New York in early December, saying “I strongly believe that holding the summit at the United Nations, the symbol of multilateralism, will lend universal legitimacy to this endeavour and demonstrate a collective will to face this serious global challenge.”40 As if acting on the UN Secretary General’s cue, the President of the 63rd Session of the UN General Assembly, Miguel d’Escoto, announced on October 21, 2008 that he was setting up a high-level task force to review the global financial system, including major bodies such as the World Bank and the IMF, in response to the current global financial crisis.41 B. The Group of Seven (G-7) and the Group of 20 (G-20) The G-7 met, for the first time, with emerging economies of the G-20, in an international conference dubbed as the world financial summit in Washington, D.C. on October 15, 2008 to deliberate what needed to be done to have the global economy back on track.42 The fact that the G-20 participated in the summit for the first time with the G-7 underscored the seriousness of the global financial meltdown. It is no longer a matter for the G-7 alone to deal with.43 Apart from the G-7 and the EU, most of the rest of the G-20 are emerging economies that are primarily exporting manufactured goods. They need the market of insatiable consumers of the United States. When credit is frozen in the largest economy of the world, exports from the rest of the G-20 are seriously affected: manufacturers find it very difficult to export

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Press Release, Oct. 18, 2008, President Bush Meets with President Sarkozy of France and President Barroso of the European Commission, available at http://www.whitehouse.gov/ news/release/2008/10/20081018-1.html (visited Dec. 30, 2008). Eurodad, IMF Back in Business as Bretton Woods II Conference Announced, Oct. 23, 2008, available at http://www.eurodad.org/aid/article.aspx?id=126&item=3010 (visited Dec. 30, 2008). Mr. D’Escoto has appointed economics Nobel Laureate Professor Joseph Stiglitz to chair this task force and as the principal advisor to the President for coordination of this process “to secure a more stable global economic order.” Id.; see also The Commission of Experts of the President of the UN General Assembly on Reforms of the International Monetary and Financial System, available at http://www.un.org/ga/president/63/commission/ financial_commission.shtml (visited Feb. 11, 2009). Mark Landler, World Leaders Vow Joint Push to Aid Economy, N.Y. Times, Nov. 15, 2008, available at http://www.nytimes.com/2008/11/16/business/worldbusiness/16summit. html (visited Jan. 15, 2009). The G-7 is Canada, France, Germany, Italy, Japan, the United Kingdom and the United States. G-20 countries other than the G-7 are Argentina, Australia, Brazil, China, India, Indonesia, Mexico, Russia, South Africa, Saudi Arabia, South Korea, and Turkey. The European Union is also a member of the G-20.

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their products, and in turn have to cut down their production output and lay off their employees, and so on.44 Given today’s level of globalization, any policy prescription to solve such economic stagnation cannot be discrete from any other economies as they are all interdependent. Hence, the need for the global financial summit of the G-7 and the emerging economies of the G-20 together. Even before the meeting started, differences across the Atlantic between Europe and the United States about the need for government intervention became apparent, suggesting the closer integration required for global financial regulation would be difficult. French President Sarkozy called for change in the global financial system, and he pressed for a powerful supra-national regulator with a power to control global banking giants and offshore hedge funds.45 On the other hand, US President Bush asserted in New York that the global financial crisis is “not a failure of the free market.”46 He suggested the adoption of modest financial reforms, as opposed to the tighter regulations Europeans favour, by saying, “Our aim should not be more government. It should be smarter government.”47 A joint communiqué acknowledges “market principles, open trade and investment regimes” as part of “a shared belief ” along with “effectively regulated financial markets.”48 As a result, the outcome of the summit was modest in scope. Though the summit reached a broad agreement on principles and action plans, overcoming their many political and economic differences, it is evident that there was a tug of war between the protagonists of free market principles and the protagonists of a stronger regulatory system. While the G-20 leaders attributed one of the root causes of the present financial crisis to “policy-makers, regulators and supervisors, in some advanced countries,” who “did not adequately appreciate and address the risks building up in financial markets, keep pace with financial innovation, or take into account the systemic ramifications of domestic regulatory actions,”49 they also underscored the importance of “a commitment to free market principles, including the rule of law, respect for private property, open trade and investment, competitive markets, and efficient, effectively 44

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See Martin Fackler, Toyota Expects Its First Loss in 70 Years, N.Y. Times, Dec. 22, 2008, available at http://www.nytimes.com/2008/12/23/business/worldbusiness/23toyota. html (visited Jan. 15, 2009). Edward Cody, Sarkozy Advocates systemic Change After Crisis, Wash. Post, Sept. 26, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/09/ 25/AR2008092504285.html (visited Jan. 15, 2009). Sheryl Gay Stolberg & Robert Pear, Bush Speaks in Defense of Markets, N.Y. Times, Nov. 14, 2008, available at http://www.nytimes.com/2008/11/14/business/economy/14bush. html (visited Jan 15, 2009). Ben Feller, Associated Press, Bush Defends Free Market, Calls for “Smarter Government,” Nov. 13, 2008, available at http://www.cnsnews.com/public/Content/article. aspx?RsrcID=39322 (visited Jan. 15, 2009). Statement from G-20 Summit, para. 2, N.Y. Times, Nov. 16, 2008, available at http:// www.nytimes.com/ 2008/11/16/washington/summit-text.html (visited Jan. 15, 2009). Id. para. 3.

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regulated financial systems.”50The communiqué is full of statements of principles of complementary opposites. For example, the G-20 leaders recognise “the necessity to improve financial sector regulation,”51 but quickly add that “we must avoid overregulation that would hamper economic growth and exacerbate the contraction of capital flows, including to developing countries.”52 They also make it clear that “regulation is first and foremost the responsibility of national regulators,”53 but they continue to state that our financial markets that are global in scope requires “intensified international co-operation among regulators and strengthening of international standards, where necessary, and their consistent implementation … to protect against adverse cross-border, regional and global developments affecting international financial stability.”54 At the same time they caution these regulators that they “must ensure that their actions support market discipline, avoid potentially adverse impacts on other countries, including regulatory arbitrage, and support competition, dynamism and innovation in the marketplace.”55 They will ensure that “regulation is efficient,” but it “does not stifle innovation, and encourages expanded trade in financial products and services.”56 And the G-20 leaders underscored “the critical importance of rejecting protectionism.”57 Likewise, the G-20 leaders are committed to strengthening “our regulatory regimes, prudential oversight, and risk management,”58 and they will ensure that “all financial markets, products and participants are regulated or subject to oversight, as appropriate to their circumstances.”59 The key to this pledge is, of course, the qualifying phrase “as appropriate to their circumstances.” Other similar phrases like “where necessary,”60 and “as deemed appropriate to domestic conditions”61 all indicate the trace of “a smoking gun” to avoid the application of a policy prescription. In terms of reforms of international financial institutions, the communiqué underscored that “the Bretton Woods Institutions must be comprehensively reformed so that they can more adequately reflect changing economic weights in the world economy and be more responsive to future challenges.”62 It also suggested that

50 51 52 53 54 55 56 57 58 59 60 61 62

Id. para. 12. Id. Id. Id. para. 8. Id. Id. Id. para. 9, 2d bullet (Enhancing Sound Regulation). Id. para. 13. Id. para. 9, 2d bullet (Enhancing Sound Regulation). Id. Id. para. 8. Id. para. 7, 2d bullet. Id. at Action Plan to Implement Principles for Reform (Reforming International Financial Institutions), Medium-term actions, 1st bullet.

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“emerging and developing economies should have greater voice and representation in these institutions”63 “to increase their legitimacy and effectiveness.”64 Since the summit forum expanded to include emerging economies, the April, 2009 review in London no doubt further facilitated the reconfiguration of authority and control of the international financial institutions in accord with the policy prescription of the G-20 to provide legitimacy and effectiveness to the global decisionmaking process.65 The competing, if not conflicting, content of some of the statements from the 2008 summit indicates relevant participants in the summit were constrained in making decisions within politically palatable parameters. “In order to be effective and to maintain itself,” according to Michael Reisman, “authority cannot go beyond the controlling situation. When an authoritative process of decision overreaches its own ambit of control, a subsequent controlling process of decision is asserted and effects a decision more consonant with the actual, though shifting power balance prevalent in the community.”66 IV. Clarification of Policy for a New Regime of Post-Neo-Liberalism The 2008 global financial meltdown is fundamentally and inextricably embedded with the process of “globalization,” i.e., the movement of goods and services seeking a larger margin of profit by cutting all kinds of costs involved in the processes of production, delivery, and marketing and sales of goods and services. The immediate result of that strategy was to destroy general expectations of security and stability in employment in the name of flexible personnel management. As businesses move their production and service facilities to countries of lower overhead cost globally, it 63 64

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Id. Id. para. 9, 5th bullet (Reforming International Financial Institutions). In this connection, Japan’s prime minister, Taro Aso, urged China and others to contribute to the IMF’s 250 billion bailout pool, aimed mostly at poorer countries. Japan on Friday said it was ready to put in as much as 100 billion. See Prime Minister Aso’s statement at a press conference, Nov. 15, 2008, available at http://www.kantei.go.jp/foreign/asospeech/ 2008/11/15naigai_e.html (visited Jan. 16, 2009). See also Japan’s Summit Hopes, Wash. Post, Nov. 15, 2008, available at http://www.washingtonpost.com/wp-dyn/content/ story/2008/11/14/ST2008111403250.html (visited Jan. 16, 2009). See Anthony Faiola & Mary Jordan, Developing Nations Set to Get More Say, Wash. Post, Mar. 31, 2009, at A12, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/03/30/AR2009033003025.html; cf. Statement from the Chairman of the Commission of Experts of the President of the UN General Assembly on Reforms of the International Monetary and Financial system for the Launch of the Commission in Doha, Nov. 29, 2008 (“This unprecedented global financial and economic crisis requires an unprecedented global response. It requires a response not just from the G-7, G-8, G-10, or G-20, but from the entire international community, the G-191.”), available at http://www.un.org/ga/president/63/commission/financial_commission.shtml (visited Jan. 16, 2008). Reisman, supra note 6, at 173.

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is no longer an overstatement that “[g]lobal poverty is an input on the supply side, the global economic system feeds on cheap labour.”67 At the same time, the so-called “hollowing process” of industrial bases is taking place in developed countries.68 A. The Universal Standard of Social Policy Let us remind ourselves of what the Universal Declaration of Human Rights (UDHR)69 has to say about the security and stability of employment. The following three articles are most relevant: Article 22: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23(3): Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection of his interests. Article 25(1): Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Judged against these mandatory prescriptions which are now customary international law today70 there is regrettably little evidence that these prescriptions are satisfied by “globalization.” In fact, a “globalized” world today has gone backward in terms of these universal human rights values. Surely, these provisions of the UDHR were not intended as residual welfare; they are not merely for the provision of “a limited set of safety nets and services to cover market failure;” rather, they address substantive goal of social policy.71

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Michael Choussudovsky, The Globalisation of Poverty 75 (1997); Peter Nunnenkamp, Winners and Losers in the Global Economy: Recent Trends in the International Division of Labor: Major Implications and Critical Challenges, 39 German Y.B. Int’l L. 42 (1996). See Hans-Peter Martin & Harald Schumann, The Global Trap: Globalization and the Assault on Prosperity and Democracy (1997); Nunnenkamp, supra note 67. Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc. A/810, at 71 (1948). W. Michael Reisman, Comment, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 867 (1990). Isabel Ortiz, Social Policy, in Policy Notes, supra note 27, at 199, 201.

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B. Incorporation of Social Policy in Economic Development There is no place for minimalist approaches in social policy; it requires every government’s commitment to the goals of equitable and sustainable development, decent work and social stability and cohesion, as expressed in the United Nations Millennium Declaration adopted in 2000.72 We must repudiate residual approaches to social development. It should be part of every government’s national program calibrated according to its national context, needs, and priorities.73 C. Freedom of Choice as the Source of Diversity and Pluralism I subscribe in principle to the freedom of trade, open markets, individual freedom of choice, and democratic political processes; however, these policies must be modulated by appropriate control mechanisms.74 The financial reform pursued by the IFIs was “a homogenization pursued on the basis of a deliberate plan, an enterprise of multifarious domination.”75 It is inevitable that the more globalization progresses, the more opportunity for diversity will develop. The fundamental premise for such diversity is “the reciprocal honoring of freedom of choice about participation in value processes.”76 “What I want to do” is the basic empirical foundation of pluralism and diversity. As Myres S. McDougal, Harold D. Lasswell, and Lung-chu Chen laid out a cardinal principle: Ours is a world of pluralism and diversity, a global arena in which various participants— groups (territorial and functional, governmental and nongovernmental) and individual human beings—constantly interact under ever-changing conditions. All of the above-mentioned group participants—nation-states, groups, and private associations—are forms of associations through which individuals cooperate to achieve fulfilment of their demands.77

72 73 74

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U.N. Doc. A/Res/55/2, available at http://www.undemocracy.com/A-Res-55-2.pdf (visited Mar. 9, 2009). See the Millennium Development Goals, available at http://www.undp.org/mdg/basics. shtml (visited Mar. 9, 2009). Consider Adam Smith’s caution: “Humanity may … require that the freedom of trade should be restored only on by slow gradations, and with a good deal of reserve and circumspection. Were those high duties and prohibition taken away all at once, cheaper foreign goods of the same kind might be poured so fast into the home market, as to deprive all at once many thousands of our people of their ordinary employment and means of subsistence. The disorder which this would occasion might no doubt be very considerable.” Adam Smith, The Wealth of Nations 141 (Cannan ed., 1976). Serge Sur, The State between Fragmentation and Globalization, 3 Eur. J. Int’l L. 421, 424 (1997). Myres S. Mcdougal, Harold D. Lasswell & Lung-Chu Chen, Human Rights and World Public Order 7 (1980). Id. at 179 (emphasis added).

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We must reject, as a matter of policy, prescriptions of one-formula-fits-all and of unilateral dimension. Otherwise, we would become an anachronistic guardian of uniformity against the pluralism of human aspiration and experience. V. Analysis of Recent Trends in Decision A. The Collapse of the Doha Negotiations at the WTO Recent trends for review are ominous. The WTO’s Doha negotiations collapsed on July 29, 2008 over issues of agricultural trade between the United States and India, in which China and Indonesia joined. Delegates failed to narrow the gaps on the special safeguard mechanism (SSM), a measure designed to protect poor farmers by allowing countries to impose a special tariff on imports of certain agricultural goods in the event of an import surge or price fall.78 One of the main sticking points has been whether, and by how much, countries should be allowed under the SSM to impose safeguard duties in excess of current (i.e., pre-Doha) tariff ceilings. The G-33 bloc of developing countries, which includes China, India, and Indonesia, insists that the SSM may sometimes be necessary to protect poor farmers.79 The United States and India could not agree on the threshold that would allow the mechanism to be used.80 The poor countries of the world refused to play along with the Doha trade negotiations. For the past eight years, the developed countries did not listen to developing countries’ complaints. Despite the Doha Round being called a “development round,” the reality of negotiations, both in terms of substance and procedure, could not have been farther from the truth. Whilst the WTO Charter proclaims that trade is a medium for development,81 from the very start, developed countries have wanted the Doha Round in order to achieve greater market openings for them while making minimal concessions on their part.

78

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Inaamul Haque, Collapse of Doha Round negotiations, Dawn, Sept. 8, 2008, available at http://www.dawn.com/2008/09.08/ebr8.htm (visited Jan. 16, 2009); cf. C. Fred Bergsten, China and the Collapse of Doha, author update, Aug. 27, 2008, available at http://www. foreignaffairs.org/20080827faupdate87576/c-fred-bergsten/china-and-the-collapse-ofdoha.html (visited Jan. 16, 2009). Oakland Institute, Collapse of WTO Doha Negotiations, available at http://oaklandinstitute.org/?q=node/view/484 (visited Jan. 16, 2009). The EU’s Peter Mandelson, however, said that India and China should not be blamed for the failure of the Doha Round. In his view, the agriculture talks had been harmed by the five-year programme of agricultural subsidies recently passed by the US Congress, which he said was “one of the most reactionary farm bills in the history of the US.” Allan Beattie & Frances Williams, Doha Trade Talks Collapse, FIN. TIMES, July 29, 2008, available at http://www.ft.com/cms/s/0/0638a320-5d8a-11dd-8129-000077b07658.html (visited Jan. 16, 2009). Preamble, Agreement Establishing the World Trade Organization, available at http:// www.wto.org/english/docs_e/legal_e/04-wto.pdf (visited Mar. 4, 2009) [hereinafter WTO Charter].

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Developing countries have been asking for a limit on developed countries’ agricultural subsidies, which are essentially indirect export subsidies, and for the incorporation of a mechanism which can provide sufficient cushion for their small farmers against the distortions in world agricultural trade. The developed countries failed to deliver on both those issues, whilst asking developing countries to make major market openings in the area of industrial products, possibly jeopardizing their future prospects for industrialization. From the perspectives of developing countries, inserting the label “development” to the Doha Round was simply a cynical ploy to make the process look more amenable to development.82 Under the WTO regime most of the strategies once employed by developed countries for industrialization are now prohibited. Friedrich List, the nineteenth-century German economist, observed that: It is a very common clever devise that when anyone has attained the summit of greatness, he kicks away the ladder by which he has climbed up, in order to deprive others of the means of climbing up after him. In this lies the secret of the cosmopolitical doctrine of Adam Smith.83

The WTO rules do not allow developing countries to make the selective liberalization of trade in accordance with their own priorities set by “their respective needs and concerns at different levels of economic development.”84 Rather, the WTO regime as the “single undertaking” resulted not only in the curtailment of developing countries’ freedom of choice under special and differential (S&D) treatment in GATT,85 but also in the eventual forced convergence in standards of conduct for developing and developed countries through the IMF, the World Bank and OECD. Under these circumstances it is not difficult to appreciate why the Doha Round collapsed the way it did. Developing countries refused to be cajoled by developed countries to promote the latter’s interest at the expense of the former’s interest.86 82 83 84 85

86

Walden Bello, The Debacle of Doha, Foreign Policy In Focus, July 28, 2006, available at http://fpif.org/fpiftxt/3393 (visited Mar. 4, 2009). 3 List, supra note 27, at 46. Agreement Establishing the World Trade Organization, Preamble, 1st para., available at http://www.wto.org/english/docs_e/legal_e/04-wto.pdf (visited Jan. 16, 2009). See the General Agreement on Tariffs and Trade (GATT) 1947, available at http://www. wto.org/english/docs_e/legal_e/04-wto.pdf (visited March 4, 2009). The development of the preferential treatment regime is rooted in the recognition that the principle of equality of all states does not reflect in fact and that today’s international economic relations are essentially governed by the duality of norms, i.e., one set of rules governing economic relations between developed countries and developing countries. See Guglielmo Verdirame, The Definition of Developing Countries under GATT and Other International Law, 39 German Y.B. Int’l L. 164, 165-72 (1996). See Walden Bello, Why Monday’s Collapse of the Doha Round Negotiations is the Best Outcome for Developing Countries, in Focus on the Global South, http://focusweb. org/context/view/984/36 (visited Mar. 4, 2009). The communiqué of the G-20 Summit, supra note 48, indicated that Doha negotiations would resume before year 2008 ended,

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The ramification of how the Doha Round collapsed is profound. It was not just the case of developing countries refusing to give in, but more importantly, the negotiators for developing countries did not lose sight of their development issues, on which they were united. There is a sea change from the time of the Uruguay Round, 1986-1994, which culminated in the creation of the WTO. The worldwide spread of new technologies have not only allowed the emergence of divergent economies of capitalism, but also contributed to the growth of private groups challenging the authority of state either legally or illegally as governments rapidly relinquished their traditional duties of state, i.e., the protection of the interests of the citizens, to private enterprises.87 The end result is the relative decline of the omnipresent power of the United States, despite it being the sole military superpower of the world today. The United States is no longer in a position to “police” the global laissez-faire process. As a result, theories of neo-liberalism that used to enjoy overwhelming predominance in the circles of economists as “orthodox economics” are facing serious challenges from “heterodox economists,”88 and what L.T. Hobhouse called “the seductions of intellectual fashion”89 of neo-liberalism has begun to lose its mystical power.90

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but no session was held. Global laissez-faire characterized by the Washington Consensus aims at the global single market where no trade barriers or “distortions” should exist anywhere. But for whose benefit? Certainly, not for weak economies of developing countries. Afterr all, laissez-faire means, in the words of E.H. Carr, “an open field, and the prize to the strongest,” since the entire ethical foundation of free competition is built at the expense of the weak and unfit. Darwinism thus became the mistress of free trade. E.H. Carr, The Twenty Years’ Crisis 1919-1939, at 48 (Harper Torchbook ed.). Jessica T. Mathews, Power Shift, 76 Foreign Aff. 50, 52-54 (1997). See Martin Wolf, The growth of nations, Fin. Times, July 23, 2007 and its related exchange in The Economists’ Forum, available at http://blogs.ft.com/wolfforum/2007/07/ the-growth-of-nhtml/ (visited Jan. 18, 2009); and Ha-Joon Chang, The Case of ForwardLooking Protectionism in the U.S., Nov. 14, 2008, and its related exchange in The Economists’ Forum, available at http://blogs.ft.com/wolfforum/2008/11/the-case-for-forward-looking-protectionism-in-the-us/ (visited Jan. 18, 2009). L.T. Hobhouse, Science and Philosophy as Unifying Forces, in The Unity of Western Civilization 178 (F.S. Marvin ed., 1915). The vicissitudes of social theories are not new. The same thing happened in the past: for example, Hugo Grotius’s The Freedom of the Seas (Brown Scott James ed., 2005), and John Selden’s Mare Clasum [The Closed Sea]: Of the Dominion, Or, Ownership of the Sea (Marchamont Nedham trans., 2004), not to mention Johann Gottlieb Fichte’s Der Geschlossene Handelsstaat [The Closed Commercial State] (1800), and the Tokugawa Shogunate’s “Seclusion Policy.” Kobori Keiichiro, Sakoku No Shisou [The Idea Of The Closed State] (1974). Each one of them rode high with the prevailing power of the time of its influence. Just consider what we have now after the golden age of the freedom of the sea. Every coastal state is making best use of the Exclusive Economic Zone. One has to acknowledge, as John Gray says, “Global laissez-faire is a moment in the history of the emerging world economy, not its endpoint.” John Gray, False Dawn: The Delusions of Global Capitalism 199 (Granta Books 2002).

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B. The Establishment of the Bank of the South On December 9, 2007 the presidents of Argentina, Bolivia, Brazil, Ecuador, Paraguay and Venezuela, together with a representative of Uruguay, signed the founding Charter of the Banco del Sur or the Bank of the South.91 1. Purpose The Founding Charter underscores the characteristic of a new regional financial architecture as “an institution dedicated exclusively to the promotion of regional development, to be constituted under the sovereign control of South American countries.”92 That the scope of operations is confined to the geographical area of borrowing member countries is common to all regional development banks without exceptions. It is not clear whether the Bank of the South will open up its membership door to non-regional countries as all other regional development banks have done.93 In view of the small number of countries, it will remain to be seen whether an endogamous institution of a small membership domain can be financially sustainable as a development institution. The creation of the Bank of the South is a commitment by several Latin American countries to finance the economic and social development of their countries, to strengthen the integration of Latin America as a region, to redress the asymmetries of their people, and to reduce poverty and social exclusion, within their countries and the region. It is Latin America’s promise to itself that a new regional financial architecture is designed to strengthen the role of the South American continent in a world characterized by commercial and financial globalization, consolidate the autonomy of regional economies, continue mitigating external vulnerability, and promote greater stability and productive systems that prioritize the basic needs of the people.94 The bitter experiences of South America’s past financial crises necessitate afresh the call for the consolidation of the autonomy of regional economies and the continued mitigation of external vulnerability, as mentioned in the Founding Charter.95 91 92 93

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The Bank of the South Founding Charter, available at http://www.bicusa.org/en/Article.3853.aspx (visited Jan. 18, 2009). Id. at Recital, 6th para. See Eisuke Suzuki, Regional Development Banks, at paras. 12-15, in Max Planck Encyclopedia of Pub. Int’l L. (Rüdiger Wolfrum ed., 2009), http://www.mpepil.com (visited Feb. 27, 2009). The Bank of the South Founding Charter, supra note 91, recital, 5th para. The Quito Declaration of 15 May 2007, adopted at the end of the International Seminar on the “Illegitimacy of the External Debt,” foretold what was forthcoming: “We back the government’s determination to put an end to the country’s subjugation to the IMF and World Bank neo-liberal and interventionist policies, which operated through their conditioned loans.” The Quito Declaration in support of Ecuador’s Sovereign Policy vis-àvis Debt, May 15, 2007, para. 2, available at http://www.cadtm.org/spip.php?article2645 (visited Jan. 18, 2009). It also declared, “We consider the recovery of resources trans-

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In the wake of the 1997 Financial Crisis, after Japan’s initial proposal to set up an Asian Monetary Fund was shot down by stiff opposition from Washington,96 those Asian countries damaged by the crisis moved fast to agree on the formation of bilateral arrangements for currency swaps to deal with similar financial crises in the future. Now, the long-awaited multilateralization of the Chiang Mai Initiative was agreed upon in early May, 2008 in Madrid on the sidelines of the Asian Development Bank’s annual meeting.97 The Chiang Mai Initiative is a series of bilateral agreements among the 10 members of the Association of Southeast Asian Nations (ASEAN) and their neighbours, i.e., South Korea, China and Japan.98 The so-called ASEAN+3 group agreed to set up an 80 billion fund with 80 per cent of the money coming from the non-ASEAN members.99 The new regional financial architecture envisaged under the Founding Charter of the Bank indicates that the reconfiguration of authority and control between the IMF and the World Bank on the one hand and South America on the other hand, has begun. In this context, I would characterize the creation of the Bank of the South as a measure of self-help. The concept of self-help is the essential component of self-respect and independence, both of which will enable South America’s regional integration. It is part of the historical alliances developed among South American countries since the nineteenth century as, in the words of Isabel Ortiz, “a strategy to reduce dependency and dominance from Northern powers.”100 ferred by way of illegitimate debts as a priority, in order to finance public policies aimed at compensation and true development.” Id. para. 5. 96 Phillip Y. Lipscy, Japan’s Asian Monetary Fund Proposal, 3 Stan. J. East Asian Aff. 93 (2003), available at http://www.stanford.edu/group/sjeaa/journal3/japan3.pdf (visited Feb. 3, 2009); see also Jeffrey Lewis, Fiscal: Asian vs International: Structuring an Asian Monetary Fund, 3 Harv. Asia Q., No. 4, (Autumn 1999), available at http://www. asiaquarterly.com/content/view/48/40 (visited Feb. 3, 2009); Gowan, supra note 15, at 106-07. 97 Ulrich Volz, Asian Monetary Fund, Take Two, Far Eastern Econ. Rev., June 2008, available at http://www.feer.com/economics/2008/june/an-asian-monetary-fund-second-try (visited Feb. 3, 2009). 98 See C. Randall Henning, East Asian Financial Cooperation ch. 3 (2002). 99 Volz, supra note 97. See Marcos Noland, Will the Crisis Compel Asian Countries to Go Their Own Way?, Real Time Economic Issues Watch, Nov. 5, 2008, available at http://www.petersoninstitute.org/realtime/?p=218 (visited Feb. 4, 2009). Full details of surveillance mechanisms and conditions for the use of the money have not yet been settled, however. 100 Isabel Ortiz, New Developments in South-South Cooperation: China ODA, Alternative Regionalisms, Banco del Sur, available at http://www.networkideas.org/news/aug2007/ news22_new_developments.htm (visited Jan. 7, 2008). Several governments have started making early repayments of the IMF’s loans as a quickest way to extricate them from the control of the IMF: to the dismay of the IMF, in December 2005, Argentina and Brazil decided to repay large loans in the amounts of 9.8 billion and 15.5 billion, respectively. Just consider how much interest payments, i.e., income, that the IMF is going to lose, and the reconfiguration of authority and control between the IMF and the World Bank on the

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2. Voting Structure For those countries critical of the roles of the IFIs, the idea of Banco del Sur has become a rallying cry to make it as a symbolic instrument of South-South solidarity and fair development in the context of “a virtuous cycle of sustainable development.”101 The Founding Charter makes it clear that the Bank of the South “to be constituted under the sovereign control of South American countries.”102 Accordingly, Article 5 stipulates: “The management of the Bank of the South will have an egalitarian representation for each one of the South American countries that constitutes it, under a democratic system of operations.”103 What separates the Bank of the South from the rest of the IFIs is thus a voting structure of members. Article 5 is understood to mean to have a “one member country, one vote” system regardless of the size of capital subscription of any member country. Which means the concept of equal representation does not translate into equal share in capitalization. The possible inclusion of non-regional countries in the membership of the Banco del Sur will affect the decision-making structure of the board of directors as the Founding Charter makes it clear that the Banco del Sur is “to be constituted under the sovereign control of South American countries.” Given the voting system of the Bank, the number of non-regional countries is ipso facto extremely limited since it cannot become a simple majority of the members of the Bank. If regional members are seven, as the Bank is organized today, the maximum number of non-regional countries will be only six. Due to its voting structure, the Bank will have a problem in determining how many non-regional countries should be represented on the board of directors. In the case of ADB, for example, the number of directors reflects the share-holding of the members between the regional and the non-regional countries on the basis of the ratio of 60:40, respectively.104 In the board of directors, unlike the board of governors, not every member country will be represented. The members of the board of directors must be elected by member countries, and since the president of the Bank will be the chair of the board

other hand and South America has begun. See Cynthia R. Rush, Argentina, Brazil Pay Off Debt to IMF: Bankers Nervous, Executive Intelligence Rev., Dec. 30, 2005, available at http://www.larouchepub.com/2005/3250arg_brazil_imf.html (visited Jan. 18, 2009). 101 Founding Charter of the Bank of the South, supra note 91, at Recital, 4th para. 102 The preamble of the Founding Charter in part provides, “it is essential to design a new regional financial architecture to strengthen the role of the South American continent in a world characterized by commercial and financial globalization, to consolidate the autonomy of regional economies, to continue mitigating external vulnerability, to promote greater stability and productive systems that prioritize the basic needs of our people.” Id. recital, 5th para. 103 Id. art. 5. 104 Art. 5(1) & (3), Agreement Establishing the Asian Development Bank [hereinafter referred to as “ADB Charter], available at http://www.adb.org/documents/charter/charter. pdf (visited Mar. 1, 2009); see also Suzuki, supra note 93, para. 20.

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of directors, who will cast a deciding vote in case of equal division, the number of directors on the board of directors must be even numbers.105 Whether or not the Banco del Sur will include non-regional countries in its membership, it is imperative that the seven countries that are signatories to the Founding Charter should at least indicate how directors will be elected in accordance with the one country, one vote system. Should these seven countries decide to extend the membership of the Banco del Sur to countries outside the region, it should equally be imperative that they indicate eligibility criteria for membership in accordance with principles of international law. 3. Capital Base The size of an initial capital fund those founding countries agreed on was 10 billion.106 The breakdown of this capital fund is as follows: the three biggest South American countries, Argentina, Brazil and Venezuela, will each contribute 2 billion. Ecuador and Uruguay will contribute 400 million each and Bolivia and Paraguay 100 million each. That would make up the total capitalization of the Bank in the amount of 7 billion by its original seven founding members, and a further 3 billion is earmarked for Chile, Columbia, Peru, Suriname, and Guyana.107 Since each member has only one vote, regardless of the size of capital subscription and the amount of contributions to the concessional funds, a clear rationale for the principle of one member, one vote needs to be provided. That rationale should be the principle of burden sharing commensurate with members’ capacity to pay.108 The principle of capacity-based burden sharing among the members of the Bank will promote the solidarity and responsibility of all the members of the region and will contribute to the redress of asymmetries of the region. Even though each member country has one vote only, a share of the capital stock of the Bank must be priced, so that the ordinary capital resources of the Bank could be used: (a) for underwriting all outstanding loans, equity investments and guarantees made by the Bank; and (b) as a guarantee for the payments in discharge of the Bank’s liabilities on borrowings and guarantees. It is the quality of callable shares 105 ADB has 12 directors, of whom 8 directors are from the region, and 4 directors from the non-region. Art. 30(1), as amended, ADB Charter, supra note 104. In the case of EBRD, 23 directors are grouped into 11 from the European Community countries and 12 non-EC countries, which are distributed to 4 Central and Eastern European borrowing countries, 4 other European countries and 4 non-European countries. EBRD, Basic facts, available at http://www.ebrd.com/about/basics/index.htm (visited Feb. 27, 2009). 106 On June 27, 2008 the economic ministers, deputy economic ministers, and other representatives of Argentina, Bolivia, Brazil, Ecuador, Paraguay, Uruguay, and Venezuela, met in Buenos Aires, Argentina to take the decision on the initial capital fund of the Banco del Sur or the Bank of the South. 107 The Halifax Initiative, Issue Brief: The Bank of the South, Dec. 2008, available at http:// www.halifaxinitiative.org/index.php/Factsheets/1125 (visited Feb. 11, 2009). 108 This is akin to the United Nations’ assessment formula. See Jeffrey Laurenti, Financing the United Nations, in The United Nations: Confronting the Challenges of a Global Society 271 (Jean E. Krasno ed., 2004).

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that would influence the cost of borrowing from international capital markets. To redeploy the money raised from the markets for lending, guarantee, and equity investment operations at relatively affordable cost to the Bank’s borrowers, the cost of the Bank’s borrowing should be as low as possible. To that end, callable shares must be subject to call as and when required by the Bank to meet its payment obligations in discharge of its liabilities on borrowing or guarantees under the ordinary capital resources. And it is a convertible currency portion of the callable shares that investors are interested in. El Banco del Sur launched a new, egalitarian, democratic voting system of one country, one vote for an institution that is capitalized. This is unprecedented. It is essential for the Bank to spell out the details of the authorized capital stock of the Bank and the quality of its callable shares, so that prospective investors in international capital markets feel confident in buying the Bank’s bonds. VI. For the Future The developments in the past several months of the financial crisis since September 2008 are unravelling the basic tenets of free-market fundamentalism everywhere. Governments of developed countries are taking a series of unprecedented measures of massive government intervention, nationalizing banks, injecting massive subsidies into troubled institutions and re-regulating their financial sectors.109 The expansion of the G-7 forum to include emerging economies of the G-20 has no doubt brought about a significant change to the policy prescription of the G-20 leaders to provide legitimacy and effectiveness to the global decision-making process. The London Summit in April, 2009 exemplified the power of developing countries, when allowed access to the decision arena, that could be material in shaping the outcome of the global decision process.110 One of the end results was the establishment of a new Financial Stability Board with the expanded mandate as a successor to the Financial Stability Forum with additional new members of all G-20 countries, Spain and the European Commission.111 It means 11 new additional countries, Argentina, Brazil, China, India, Indonesia, Mexico, Russia, South Africa, Saudi Arabia, South Korea, and Turkey. It is safe to say that the G-7 would not have achieved the same result without the emerging countries of the G-20.112 The London meeting did herald a new age in which the decision arena about the future of the global economy will no longer be confined to a handful of Western powers that have set the global rules under the Bretton Woods regime since July 1944. The democratization of the 109 See Robert A. Dahl, On Democracy 174 (1998) (“The basic institutions of marketcapitalism themselves require extensive government intervention and regulation.”). 110 G-20 London Summit Communiqué, Apr. 2, 2009, available at http:www.londonsummit.gov.uk/ resources/en/PDF/final-communiqué (visited April 3, 2009). 111 Id. para. 15. 112 See, e.g., Communiqué of the G-7 meeting at Rome, Feb. 14, 2009, available at http:// newsfeedresearcher.com/dataarticles_g7/ministers-finance-meeting.html (visited Feb. 15, 2009).

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global financial decision-making process has just begun. The Washington Post was correct when it announced ahead of the meeting: “At this week’s summit of world leaders, the big winner will be the developing world, with the United States, Europe and Japan offering China, India, Brazil and other emerging nation’s unprecedented new influence in global financial decisions.”113 Despite the desire to reach an “urgently needed” conclusion to the Doha negotiation which collapsed in July 2008, the G-20 did not set any time-line for it unlike the G-20 summit November 2008. It seems the London summit, in effect, said, “Adios Doha.”114 Max Weber reminded us a long time ago: “The ‘free’ market, that is, the market which is not bound by ethical norms, with its exploitation of constellations of interests and monopoly positions and its dickering, is an abomination to every system of fraternal ethics.”115 Without government intervention and regulation the marketbased economy driven by self-interest would be, as before, more likely to become harmful and detrimental to the development of equitable and sustainable development.116 A standpoint from which to prepare a strategic plan for such equitable and sustainable development should not be that of developed countries such as the G-7 that enjoy the fruit of development. Rather, it should empathize with that of late-developing countries seeking to achieve economic development. As always, late-comers face numerous handicaps such as non-competitive industries at infancy, small and thin domestic capital markets and high domestic interest rates, a shortage of skilled labor, and a dearth of new and advanced technology. These handicaps must be compensated for or overcome by development of new institutions and practices capable of supporting economic development. Some decades ago, Marshall McLuhan coined the phrase, “a global village.”117 In McLuhan’s “global village,” there are separate individual houses in the village:

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Faiola & Jordan, supra note 65. At the end of the G-20 summit, its host, Prime Minister Brown, simply declared, “The old Washington consensus is over.” See http://www.pressrun.net/weblog/2009/04/old-washington-consensus-is-over-gordon-brown.html (visited Apr. 3, 2009). Barack Obama, in turn, warned the world’s established and emerging exporting countries that the United States would not remain “being a voracious consumer market.” See http://www.whitehouse.gov/the_press_office/Joint-Press-AvailabilityWith-President-Barack-Obama-and-Prime- Minister-Gordon-Brown/ (visited 3, 2009). 114 See G-20 London Summit Communiqué, supra note 110, para. 23. 115 Max Weber, On Law in Economy and Society 193 (Max Rheinstain ed., 1954). 116 Dahl, supra note 109, at 174-75. 117 Marshall Mcluhan & Quentin Fiore, The Medium Is The Message 63 (1967) (“Ours is a brand-new world of all allatonceness. ‘Time’ has ceased, ‘space’ has vanished. We now live in a global village … a simultaneous happening.” (emphasis in the original)); see also Marshall McLuhan & Bruce R. Powers, The Global Village: Transformations in World Life and Media in the 21st Century (1989).

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We can now live, not just amphibiously in divided and distinguished world, but pluralistically in many worlds and cultures simultaneously. We are no more committed to one culture—to a single ratio among the human senses—any more than to one book or to one language or to one technology.118

To envision such a global village, it is imperative that each country and each government should be able to draw up its own strategy and design the sequence of its own reform measures in a manner compatible with the process of equitable globalization. Instead of promoting a global level-playing field of market forces, we should consider the national, local, and subjective perspectives as critical components of the global constitutive process of decision. After all, subjectivity is the essential component of decision-making. The WTO should remain loyal to its proffered purpose of raising members’ “standards of living … in accordance with the objective of sustainable development … in a manner consistent with their respective needs and concerns at different levels of economic development.”119 In international trade relations, said the Appellate Body of the WTO in the Shrimp/Turtle case: [I]t is not acceptable for one WTO member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory programme, to achieve a certain policy goal, as that in force within that Member’s territory, without taking into consideration different conditions which may occur in the territories of those other Members.120

Regional cooperation and groupings reflect initiatives of individual countries to safeguard their interests. Rejection of convergence to unilateral globalism is to understand that developed countries, in the words of List, “merely gained an advance over others in point of time.”121 Each developing country should develop its strategy for economic development that will meet its own circumstances. We should place our confidence in local ingenuity and creativity à la Joseph Schumpeter’s notion of innovation from the ground up.122 Such approach will promote diversity and pluralism in the midst of globalization.

118 Marshall McLuhan, The Gutenberg Galaxy 31 (1962). 119 WTO Agreement, supra note 84, pmbl., 1st para. 120 Report of the Appellate Body on U.S. Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998), para. 164; 38 I.L.M. 118, 167 (1999) (emphasis added); see Robert Howse, The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environment Debate, 27 Colum. J. Envtl. L. 491 (2002). 121 2 List, supra note 27, at 15. 122 Joseph A. Schumpeter, Capitalism, Socialism And Democracy 81-86 (Harper Torchbooks ed. 1975); see also National Diversity And Global Capitalism (Suzanne Berger & Ronald Dore eds., 1996).

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Despite a global rhetoric of the G-7 and the IFIs, for developing countries “[a]cting globally provides no assurance of international benefit.”123 In the final analysis, the actual realization of good governance and provision of public goods rest on the will and capability of local and national institutions such as local courts, local police, national civil service, local press and civil society. We must design future developmental constructs by re-configuring control mechanisms as a necessary complement to the international financial architecture. For that, the following three conceptual transformations are necessary: – It must be acknowledged that throughout the history of competition, control mechanisms are necessary features of competition; – In view of a system of asymmetric duties between those states with capability and those states without such capability, it must be recognized that there are special duties on the part of “the major economic powers … to constrain their ability to manipulate the constitutive world economic institutions to their own ends;”124 and – The myth about the “single undertaking” of the WTO regime must be deconstructed first by recognizing that every member has different needs and levels of capacity. Various forms of control mechanisms are available in domestic settings. Internationally, too, grant financing and concessional lending are subsidies as part of such control mechanisms.125 We need global arrangements that will allow the development of national control mechanisms such as taxes, subsidies, and other regulatory arrangements with a view to redressing the asymmetries of people and reducing social exclusion within the country.126 In order to regulate financial speculation, we must fashion a proper regulatory regime to rein in all activities relating to arbitrages, derivatives, hedge funds, tax havens, and rating agencies.127 The purposes of such regulation are not merely to stabilize national financial systems by incorporating them into the global financial system, but to develop national and regional controls as part of the global control mechanism to regulate cross-border capital movement and transform short-term portfolio in123 José E. Alvarez, Multilateralism and Its Discontents, 11 Eur. J. Int’l L. 393, 398-99 (2000). 124 W. Michael Reisman & Scott Shuchart, Unilateral Action in an Imperfect World Order, 8 Austrian Rev. Int’l & Eur. L. 163, 169 (2003). 125 W. Michael Reisman, Systems of Control in International Adjudication and Arbitration 1 (1992) (“Controls are techniques or mechanisms in engineered artifacts, whether physical or social, whose function is to ensure that an artefact works the way it was designed to work.”). 126 Birdsall, supra note 19, at 83. 127 G-20 London Summit Communiqué, supra note 110, para. 15; see also Walden Bello, Kamal Malhotra, Nicola Bullard & Marco Mezzera, Notes on the Ascendancy and Regulation of Speculative Capital, in Global Finance: New Thinking on Regulating Speculative Capital Markets 1, 4-12 (Walden Bello, Nicola Bullard & Kamal Malhotra eds., 2000).

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vestment and loans to long-term direct investment and loans.128 In this connection, the G-20 London summit’s decision to establish a new Financial Stability Board with the expanded mandate and membership as a successor to the Financial Stability Forum is a significant development.129 With respect to the reform of the WTO regime, we should expand the scope of preferential treatment on a non-reciprocal basis in a parallel development similar to the establishment of the Exclusive Economic Zone (EEZ) within the Law of the Sea.130 The law regulating freedom of the sea has accommodated a non-reciprocal, exclusive zone. This will be an answer to the Group of 77’s question on the Doha Plan of Action in June, 2005 to operationalize the concept of policy space for development.131 A call for the establishment of a trade sub-regime analogous to the EEZ will aim at carving out a special and differential treatment zone out of the WTO’s “single undertaking” by broadening the scope of special and differential (S&D) treatment in GATT Article XVIII.132 This new sub-regime can be called “A Zone for Special and Differential Treatment,” that is designed to help developing countries’ freedom of choice under the S&D treatment. The S&D Treatment Zone will provide national policy space for development. It should encourage bilateral deals as part of the legitimate exercise of freedom of choice. We need to redefine and expand the scope of S&D treatment in such a way to allow developing countries to exercise broader policy discretion with respect to their own domestic markets. In particular, substantive policy discretion will require a different démarche for capacity and competitiveness building than merely providing an extended period of waiver from some of the compliance obligations. The Group of 77 should prepare and organise themselves for a new round of negotiations beyond Doha for the development of the S&D Treatment Zone.

128 Id. at 18-23; see also C.P. Chandrasekhar, Financial Policies, in Policy Notes, supra note 27, at 63. 129 G-20 London Summit Communiqué, supra note 110, para. 15. 130 Article 55 (Specific Legal Regime of the Exclusive Economic Zone) of the UN Convention on the Law of the Sea reads: “The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.” 131 Doha Plan of Action (G77/SS/2005/2) of June 16, 2005, available at http://www.g77.org/ southsummit2/ doc/Doha20of20Action20(English).pdf (visited Mar. 1, 2009). 132 GATT, supra note 85.

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Chapter 17 Remarks on Sovereignty in the Evolving Constitutional Features of the International Community Attila Tanzi*

What must exist in order for us to speak of a legal system is not a “formal” enforcer but an “expectation” accompanying a belief that there is a “right” way to act, that someone, possibly even the injured party, may properly respond, in ways that might otherwise be improper, to infractions of that expectation. —W. Michael Reisman

It is often difficult to say whether a given interest, need or expectation of an individual or of a group of individuals is addressed by the law, whether international, domestic, public, or private, and how. For sure, all individuals are involved in some kind of law and in the legal process producing and taking into consideration that law. Professor Michael Reisman has offered me a few special opportunities to encounter “that kind of law” and to develop my awareness of its existence and its scope. Therefore, as one who has greatly benefitted from his thinking and wisdom, I am especially pleased to share with his friends and colleagues this tribute to him. I. Introductory Remarks As much as one may have been considered by some European continental lawyers as a rare epigon of the New Haven School of legal thinking in Europe, the standpoint of the present contribution largely relies on the paradigms of mainstream legal analysis. The law referred to here is not just a “process,” but a set of rules very close to “The Law” in the formal sense—that is, constitutive and legal arrangements, the operational code, “the law-in-the books,” according to Michael Reisman’s and Roscoe

*

The present contribution is a variation of an article forthcoming in the International Community Law Review. The epigraph is taken from W. Michael Reisman, Law in Brief Encounters 13 (1999).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 299-322.

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Pound’s language.1 In particular, in focusing on the paradigm of sovereignty as the main constitutional feature of international law, again in Michael Reisman’s words, the present contribution would fall within the “[m]ainstream contemporary legal theory [which] emphasises the state as the centrepiece of a legal system and ‘state’ and ‘law as two parts of the same identity.”2 However, even following this approach, one believes that: (a) “Law” made of rules and structural arrangements is the result of a social and political process that is part and parcel of the legal process; (b) such processes are, in their turn, affected by the aspirational dimension of legal rules, beyond their purported prescriptive function; (c) therefore, legal rules may make up a myth system3 that reflects values and sets standards that are diffusely perceived as valid and variably taken into account by social actors in their behavioral choices and in social judgments, even when they are infringed upon; (d) legal rules are relative according to the standpoint from which they are viewed and, eventually, interpreted and applied;4 (e) the perception by the relevant social actors as to whether a given legal or structural arrangement, or operational code, still reflects the common interest, or their own interest, is part of the social dynamic that makes up the legal process characterized by everlasting tensions between stability and change. Tensions between needs for stability, on the one hand, and for change, on the other, represent the most critical part of the social, political and legal processes relevant to this paper. A minority clinging onto existing legal arrangements against change may impair progress towards the pursuit of the legal protection of a more widely perceived new common interest. Conversely, a minority prompted by needs and values that are new with respect to those protected by existing legal constitutive arrangements may impair the pursuit of the values generally perceived as in the common interest at a given point in time. The approach followed in the present contribution relies on traditionally conceived international constitutional rules about the change of rules, namely, the traditional rules on the making, and unmaking, transforming and amending of customs and treaties. They may be cumbersome and they may sensibly delay the social and legal process in adjusting legal arrangements to new common interests, but they may make such a process more predictable, and possibly, peaceful, let alone the fact that, more often than not, the common interest is differently perceived by different social groups. The issue in point has to do with unilateralism (also that of a small minority) and multilateralism. According to some international relations language, unilateral change tends to be “moral,” or moralistic, only in the sense that absolute moral judgments are produced by a powerful minority and imposed on all actors, while multilateral change is “ethical” in procedural terms, namely, 1

2 3 4

See W. Michael Reisman, On the Causes of Uncertainty and Volatility in International Law, in The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity. Essays in Honor of Professor Ruth Lapidoth 33, 35, 42, 44 (Tomer Broude & Yuval Shany eds., 2008). Id. at 34. Id. at 44. See W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118, 119-20 (1992).

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insofar as it produces moral judgments that may be incorporated into new legal arrangements through a dialectical process respectful of mutual reciprocity among all actors on an equal footing.5 The latter view seems closer to the existing principles of the constituent arrangements of international law. Such principles may involve cumbersome processes and, even, lead to ineffectiveness or to a standstill. This is a risk for any social process, where the alternative is a powerful revolutionary change that would produce and impose new constitutive legal arrangements. Ever since the start of the precarious modern regulatory setting for inter-state relations in the seventeenth century, the great scholars of international law have all along put together their thoughts on the constitutive principles of the international legal system, basically pivoting around the principle of state sovereignty. Nonetheless, the term “constitution,” as much as the expression “constitutional principle,” hardly ever appeared in their writings, with few, though important, exceptions.6 Not that one can see a real need for a manifestly nominal or definitional approach to the constituent elements and essential legal features of the international legal system and its process. Indeed, differently from domestic contexts—where the adoption of the constitution is generally the result of a procedural formalization of the constituent social and political processes—such formalisms are unknown to the international context at large, apart from the adoption of constituent treaties of international organizations.7 On the other hand, over the last few decades, particularly since the end of the Cold War, the so-called debate on “constitutionalism” in international law has increasingly come to the fore in legal, philosophical and other areas of social sciences as an integral part of the post-modern and post-Marxist international law and international law related discourse. One of the main tenets of this approach—either implicit, or manifest— seems to be that the “constitutionalization” of the international community may be achieved only through the marginalization of the role of sovereign states.8 5

6 7

8

“To understand how the power of ethics to discriminate between what is good and what is bad differs from morality—because ethics and morality, although highly related, are not strictly identical—a precise definition is needed. Morality is primarily, if not exclusively, an evaluation of what is good and what is bad in absolute terms. … Ethics is different. Ethics approaches and organizes what is good and what is bad by keeping sight of the imperative of reciprocity among people.” Jean Marc Coicaud & Daniel Warner, Introduction, in Ethics and International Affairs: Extent and Limits 3 (Jean Marc Coicaud & Daniel Warner eds., 2001). See, with the qualifications, infra text at note 69; Immanuel Kant, Theory and Practice 295 (1996). Though, none of the latter could be equalized to the constitution of the international community, even if some of them, particularly the UN Charter, may be considered to make up written parts of it (see infra, note 64). See, e.g., Christoph Schreuer, The Waning of the Sovereign State: Towards a New Paradigm for International Law, 4 Eur. J. Int’l L. 447 (1993); Gunther Teubner, Global Law Without a State (1997); Ronald St. John Macdonald, Towards World Constitutionalism (2005). For a skeptical approach to the matter, far from convinced of the inevitability, even less so of the appropriateness, of the end of a sovereign nationstate based international community, see Benedict Kingsbury, Sovereignty and Inequal-

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Since the so called constitutionalist doctrines are generally based on the theory of the state from a domestic perspective, the main critique put forward in the present paper against such approaches—both in normative and empirical terms—is that they neglect the long existing constitutional relevance of the peculiar legal pillars of traditional and contemporary inter-state international law. Indeed, the application of domestic constitutional parameters to similar analysis—or self-propelled policy aspirations—concerning the evolving law of the international community accounts for the combined assumptions generally put forward by the doctrines in point: namely, the weakening, if not the waning, of national sovereignty of states, 9 on the one hand, and the alleged emergence of some kind of universal supranational sovereignty regulating an inter-individual global society, in a way similar to the exercise of domestic sovereignty through domestic law.10 The present paper attempts to look at state sovereignty in a multipolar world as the basic pillar of the evolving law of the international community from what may be considered as a purely international constitutional law viewpoint, without linking policy judgments to the consideration that it would be a necessarily positive value for the international legal process to follow in the footsteps of the constitutional developments of domestic legal systems. To that end, one would start from the assumption put forward by Professor George Scelle whereby there is a constitution and there are constitutional rules each time one is confronted with the making of normative rules aimed at meeting the essential needs of social relations and at providing, even if in a rudimentary fashion, the means for the implementation of such fundamental rules.11

Against such a premise, the present contribution addresses a few key aspects of the relation of sovereignty to the constitutional setting of international law, both from a structural and a material perspective. The analysis follows another mainstream assumption, namely, that “[t]he history of the notion of sovereignty in international

9 10

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ity, 9 Eur. J. Int’l. L. 599 (1998); and Oscar Schachter, The Decline of the Nation-State and Its Implications for International Law, 36 Colum. J. Transnat’l L. 7 (1997). For an extensive recognition of the state of the art of the debate under consideration long before the fall of the Berlin Wall, see Marek St. Korowicz, Modern Doctrines of the Sovereignty of States, 5 Nederlands Tijdschrift voor International Recht 150 (1958). Id. See, e.g., Anne Marie Slaughter & William Burke-White, The Future of International Law is Domestic, in New Perspectives on the Divide between National and International Law 110 (Janne Nijman & André Nollkaemper eds., 2007); see also Erika de Wet, The Value System of the International Community, 15 Eur. J. Int’l L. 97 (2004). English translation by the author. The original text is as follows  : “[I]l y a constitution et normes constitutionnelles toutes les fois qu’il y a élaboration de règles normatives destinées à traduire les nécessités essentielles des rapports sociaux et à fournir, fut-ce de façon rudimentaire, les moyens de mise en œuvre de ces règles fondamentales.” Georges Scelle, Le droit constitutionnel international, in Mélanges René Carré de Malberg 505 (1933).

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law is almost identical with the full-scale history of international law.”12 Accordingly, the main tensions throughout history between an international setting based on the principle of sovereign equality and hegemonic attempts will be considered. Such a history-based approach is accompanied by a tentative consideration of the progressive, or conservative, impact of State sovereignty on the winding developments of international law towards global solidarity. In that respect, reference is made to jus cogens as “soft-peremptory law” in order to emphasize the aspiration- and goaloriented approach to law-making in the pursuit of common and superior interests by nation-states, countered by the short-term concerns that such pursuit would encroach upon individual sovereign interests and benefits. Finally, against the general indications emerging from the above, a tentative consideration will be made of the multifarious trends in the ongoing international social process as well as in the international law discourse. This concise overview does not ignore that the evolution of the international community based over three centuries on state sovereignty has not removed, and is largely responsible for, the shortcomings in the pursuit of international justice, freedom, fairness and respect for all. Nor does it forget the eurocentric slant of this model. However, the main concern is that alternative structural constitutional cosmopolitan models may lead to even more defective scenarios, particularly since history shows that any attempts at radical structural change have eventually aimed at hegemonism, while the recent fragmented and differentiated trends towards an increased role for non-state actors on the global scene have shown serious problems of accountability and control, certainly with regard to business-interest NGOs, multinational companies and financial operators, but also with respect to public-interest NGOs.13 II. Sovereignty as the Material and Structural Legal Pillar of the International Community Irrespective of nominalistic concerns about whether the core normative pillars of a legal community—however defective—should, or not, be explicitly defined as a constitution, as a matter of substance the above statement by George Scelle seems to complement the old adage ubi societas, ibi ius with the corollary assumption that ubi ius, ibi constitutio. Namely, if there is a set of rules governing the relations among the actors of a given society, there must be some basic rules that provide for its legal structural and material specificity. One finds it difficult not to subscribe to that, both in normative and empirical terms. Against this background, even following the most formalistic and Kelsenian international law constructions, which identify the primary specificity of the international legal system with the rules on recognition, in empirical terms it appears that the underlying principle behind such rules and their functioning is precisely that of the sovereign equality of states. It represents an empirical phenomenon exemplified 12 13

Helmut Steinberger, Sovereignty, 4 Enc. Pub. Int’l L 501(2000). For a comprehensive treatment of the prospective negative implications of “discarding traditional international law sovereignty,” see Kingsbury, supra note 8, at 616-22.

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by a political and legal concept which may be regarded as the true Grundnorm of modern international law, insofar as it provides the factual and legal basis for the coming into being of the ancillary constitutional rules on the sources of international law. Firstly, nation-states came into being de facto, claiming, and attaining on the basis of reciprocity, prerogatives and limitations that would make up the principle of sovereignty.14 Expectations and consequent claims of reciprocal conduct represent the basic meta-juridical and, at the same time, legally constituent element of the international legal community.15 Secondly, such sovereign actors, so self-conceived and self-perceived, would produce and utilize rules on recognition, as well as the material rules thereby produced. The constitutional function of the principle in point seems to be at the same time structural and material. From the structural standpoint, in line with Professor Scelle’s quotation, the principle of sovereign equality can be said to have reflected and crystallized the generally diffused will to avoid an hegemonic organization of the international society, under the authority of the emperor or of the pope, or any other wielder of power. Sovereignty has, therefore, determined the initial and long lasting horizontal dimension of modern international society and relations, molding accordingly the three main functions of international law: namely, a) the consensual and participatory mode of the making of international rules; b) the consensual nature of dispute settlement, with a prevailing relevance of self-assessment of legality; c) self-help in the ultimate law-enforcement function.16 The same factor consolidating multilateralism based on formal equality accounts for the shortcomings of the system, consisting of consensualism as the only alternative to the theory and practice of self-assessment and self-help. The material dimension of the principle of sovereignty has determined all along the amount and the reach of the material rights and duties that make up the contents and contours of the freedom and powers of states in legal terms. In this respect, sovereignty merges with the principle of jurisdiction, traditionally intended as the international legal regulation of the scope of the legislative, judicial and enforcement 14

15

16

“The early development of the modern concept of sovereignty … seems to be the demonstration ad oculos of the maxim ex factis jus oritur. Modern sovereignty is rooted in the profound changes—resulting in the centralisation of power and a new social cohesion with certain territorial units—that brought about the decline of traditional medieval society. This essentially factual transformation of the political scene had a direct influence on the excessive legal claims to universal power formulated by the two protagonists of the weakening Empire. … It was the de facto situation that elevated the theory of sovereignty from its early youth to the full-grown legal doctrine that could sustain a new international order of de jure equal and sovereign States.” Gerard Kreijen, State Failure, Sovereignty and Effectiveness 32 (2004). For a general treatment of sovereignty in similar terms, both from an historical perspective and as a constituent element of the modern international legal community of states, see James Laslie Brierly, The Basis of Obligation in International Law, in International Law and Other Papers 1 (Hersch Lauterpacht & Claude Humphrey Meredith Waldock eds., 1958). See, in terms closer to the process approach, Reisman, supra note 1.

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powers of states with regard to territory, subjects and subject-matters.17 In its Westphalian origin, the concept of sovereignty focused on the absolute independence of each sovereign state from any outside authority. This would make sovereignty appear as an absolute and illimitable concept, in a Hobbesian way, which international law could hardly regulate. Such an absolutist approach to sovereignty is epitomized by the statement of Chief Justice Marshall of the U.S. Supreme Court in The Schooner Exchange vs. McFaddon Case, whereby “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”18 It seems to have been this kind of restrictive approach to the concept of sovereignty (and a restrictive interpretation of this approach) which has prompted Professor Max Huber to refer to sovereignty as “mortal poison,”19 and Professor Jessup define it as the “quicksand on which the foundation of international law is built.”20 Be that as it may, since sovereign states have never lived in a vacuum, but amidst other sovereign states, the absolute nature of the concept of sovereignty was mitigated from the inception of its existence by the formal concept of equality21 which would inextricably operate in conjunction with the principle of reciprocity.22 The latter not only has characterized the basic constitutive structure of the community of states in horizontal terms on the basis of the independence from one another,23 it has also determined the synallagmatic nature of the material legal relations stemming from the largest part of the material obligations of traditional international law. Suffice it to consider the rules on the treatment of aliens and of State organs, those on the exploitation of shared natural resources, including the sea, or those on warfare. The making 17 18 19

20

21 22

23

See Vaughan Lowe, Jurisdiction, in International Law 335-60 (Malcolm D. Evans ed., 2006). 11 U.S. (7 Cranch) 116 (1812). C. Wilfred Jenks, A New World of Law? 133 (1969) (quoting Huber), quoted by Ruchi P. Anand, Sovereign Equality of States in International Law, 197 Recueil des Cours 36 (1986-II). Philip C. Jessup, A Modern Law of Nations 40 (1949). For one of the latest expressions of lack of sympathy for the concept of sovereignty, considered as “a ‘bad word’ which should be expunged,” see Louis Henkin, International Law: Politics, Values, Functions, 216 Recueil des Cours 24 (1990). See generally Peter H. Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into the Foundations of International Law (1964). See Michel Virally, Le principe de la réciprocité en droit international contemporain, 122 Recueil des Cours 1 (1967-III); Emmanuel Decaux, La Reciprocite en Droit International (1980); Bruno Simma, Reciprocity, 4 Enc. Pub. Int’l L. 29 (2000). “Some incidents of state sovereignty—the attributes of membership in the international legal order, such as the capacities to make treaties, join the United Nations, and claim sovereign immunity in other states’ courts for certain governmental acts—are deeply embedded as constitutive rules of the game in the international law system. This set of arrangements, established partly on the basis of mutual interest and reciprocity, has become a structural equilibrium.” Kingsbury, supra note 8, at 614 (italics added, footnotes omitted).

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of all such international rules stems from the exercise of state sovereignty, involving at the same time some forms of constraints on the sovereignty of states, including its domestic exercise. Going back to absolutist statements akin to the one quoted above by Chief Justice Marshall, they should be simply taken as restatements of the rejection of any subjection by states to any superior entity. This is not in contradiction with the principle of the subjection of states to international law, insofar as the latter is the result of the making of nation-states, hence, of the exercise of their sovereignty through the expression of their consent, or their participation in the customary law-making process. As emphasized by Professor Brierly, sovereign independence of states “does not mean freedom from the law, but merely freedom from control by other States,”24 or, one may add, by other aggregates of organized power, unless freely consented to. To put it in Quincy Wright’s words, from the material law perspective, sovereignty defines “the status of an entity subject to international law.”25 In line with the above, as stated by the Permanent Court of International Justice in the Treatment of Polish Nationals in Danzig case, “a state cannot adduce, as against another state, its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force.”26 More recently, this has been authoritatively confirmed to the effect that “[n]o state […] nor its autonomy (or sovereignty) is absolute in law. It is limited by international law which in the prevalent positivist conception is viewed as the collective expression of sovereign wills.”27 On the basis of the above, it appears that the principle of the sovereignty of states “superiorem non recognoscentes” could be seen as the legal protection of state unilateralism only insofar as sovereignty is opposed to legal subservience to any superior entity not freely consented to. As we have seen, through the ancillary principle of the 24 25

26

27

Sir Humphrey Waldock, The Law of Nations 130 (1963). Quincy Wright, Mandates under the League of Nations 283 (1930), quoted by Anand, supra note 19, at 37. Along the same lines, Professor Verzijl later defined sovereignty as “the power of the State to act according to its own free will within the limits of the law of nations.” 1 Jan Hendrik Willem Verzijl, International Law in Historical Perspective 265 (1968). PCIJ, Series A/B, No. 44, 24. As stressed by Judge Anzilotti in the Customs Union case, “the sovereignty of the state consists of its competence as defined and limited by international law and is not a discretionary power which overrides the law.” PCIJ, Series A/B, No. 41, 57. It is precisely against this principle which could ground tomorrow a claim by a declining Great Power of today vis-à-vis an internationally illegitimate claim, or conduct, by an overly voluntaristic emerging power that one has been most perplexed at the time when the then-Under Secretary of State for Disarmament, John Bolton, would affirm in a public statement in 2003 that “[o]ur actions, taken consistently with constitutional principles, require no separate external validation to make them legitimate.” Address at the Federalist Society, 2003 National Lawyers Convention (Nov. 13, 2003), at 19-20, available at www.fed-soc.org/pdf/bolton.pdf. See the scholarly debate on the relationship between the Constitution and international law, with special regard to human rights, in Agora: The United States Constitution and International Law, 98 Am. J. Int’l L. 42 (2004). Schachter, supra note 9, at 7.

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formal equality of states, the principle of sovereign equality provides a containment to unilateralism and to unlimited freedom in conjunction with the other ancillary principle of reciprocity.28 On that score, the principle of sovereign equality merges with that of the mutual independence of sovereign states which is further articulated through two other constituent material legal principles: i.e. non-intervention and par in parem non habet imperium. Similarly aimed at curbing unlimited unilateralism on the material plane is the principle of good faith, also ancillary to the principle of state sovereignty, therefore, no less a constituent principle of international law.29 However, the paradox of good faith, as an aspirational principle pervading the whole international legal system, while it aims at curbing unilateralism, it also consists of a unilateral attitude of variable forms of self-containment. This reflects the overall constituent paradox of international law based on the coincidence between those who make, assess and enforce the law, on the one hand, and its addressees, on the other, whereby self-containment is generally agreed to be legally binding and, conversely, the effectiveness of legal obligations is largely based on spontaneous compliance. Through the exercise of the law-making sovereign prerogatives of its members, the international community has brought about a gradual shift from an exclusively synallagmatic bilateral legal protection of their individual material interests towards the production of rules for the protection and fostering of global solidarity values. As we shall see in due course, one can make the case that, despite the proliferation of international institutions, such a normative progress has been more significant on the material level rather than on the structural one, with special regard to the adjudicatory and enforcement functions. III. Constitutional Evolutions and Attempted Revolutions: Sovereign Equality vs. Hegemonism The consolidation of the traditional horizontal, formally egalitarian, international legal order based on state sovereignty may be seen as the result of what from a theory of the state perspective appears as a centuries-long civil strife to inherit the hegemonic power of the collapsed Roman Empire. Since neither the Pope, nor the Emperor, got the upper hand in such a strife, after the final clash of the Thirty Years War, the horizontal legal setting based on sovereign equality that emerged from the Peace of Westphalia may be seen as the result of a revolutionary clash in international relations, following a period of anarchy, whose resulting constitutional pillars were formal equality, mutual independence and competitive freedom. Just like in the bourgeois constitutional democracies of the nineteenth century, and long before them, in international law such equality was of a formal nature, i.e. equality before the law in the sense that “what is lawful or unlawful for one Nation is equally lawful or unlaw28 29

Supra note 23. Christian Tomuschat, Obligations Arising for States Without Their Consent, 241 Recueil des Cours 195 (1993-IV). Robert Kolb has no hesitations to encompass good faith within the legal concept of jus cogens. Robert Kolb, La Bonne Foi en Droit International Public 158-61 (2000).

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ful for every other Nation.”30 One further qualification of the principle of sovereign equality in its original version is that it applied only to Christian states, hence making up a purely European international community.31 This paved the way for the colonization of a large part of non-Christian peoples.32 In such a eurocentrically conceived international community, the latter were discriminatorily recognized only with some degree of sovereignty, if at all—possibly, enough for them to enter into agreements with the fully sovereign European states, when suitable to the latter– decoupling sovereignty from the principle of equality, as well as from the right of non-interference, hence of independence. For our purposes, sovereign equality provided the basis of a minimal regulatory regime of co-existence within a minimal regulatory setting of free competition, from the economic to the military fields, among technologically advanced Christian European sovereign states, or Christian sovereign states of European descent. Such a regime not only has allowed for the growth of significant material inequalities at the international and domestic levels alike, it has also allowed for, and has been subject to, revolutionary attempts to reverse the system from its horizontal setting into an hegemonic one. One may recall the Napoleonic project, as well as Bolschevik internationalism and the Nazi design. More recently, the unilateralism characterizing U.S. foreign policy at the beginning of the new century was an attempt to enforce a long term hegemonic strategy.33 The common thread through all these hegemonic attempts is precisely the design to abolish the principle of sovereign equality through the breach of the corollary principles of non-intervention, political independence and territorial integrity. Against this background, the constitutional evolution of the international law of coexistence among nation-states may be seen to have proceeded along the path of the growing regulatory limitation of state sovereignty—both internal and external—paradoxically through the exercise of the external sovereignty by the members of the international community through the participatory (custom) and consensual (treaties) sources of international law. Such an evolutionary process of self-reduction of state sovereignty has been two-pronged. On the one hand, it has promoted the growth of the organizational side of the international community through the development of international institutions; on the other, it has involved major developments in the field of the material rights and duties of States and, partly, also of non-state actors.

30 31

32 33

Emerich de Vattel, Le droit des gens (1758), as translated into English by Charles B. Fenwick, 3 Classics of International Law 7 (1916). Ian Clark, Legitimacy in International Society (2005), quoted by Russell Buchan, A Clash of Normativities: International Society and International Community, 10 Int’l Comm. L. Rev. 3, 10 n.26 (2008). Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law, 40 Harv. Int’l L.J. 1 (1990). See Detlev F. Vagts, Hegemonic International Law, 95 Am. J. Int’l L. 843 (2001); José A. Alvarez, Hegemonic International Law Revisited, 97 Am. J. Int’l L. 873 (2003); Jürgen Habermas, The Divided West (Ciaran Croning ed. & trans., 2006).

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On the organizational and external sovereignty side, this process has brought about well-known developments towards multilateralism and the establishment of a wide array of institutional settings. These developments, however, have been more relevant in quantitative than in qualitatively normative terms, in the sense that they have not affected the state sovereignty-based international constitutional setting, let alone the fact that such institutions remain intergovernmental in their essence. Indeed, they do not involve full transfers, hence waivers, of state sovereignty on the part of their members: (a) in international institutions, being of an intergovernmental nature, member states still exercise elements of foreign policy, i.e. external sovereignty; (b) usually, the typical acts of international institutions are per se not legally binding, and, even when they are binding, their enforcement depends on the exercise of domestic sovereignty by the member states; (c) even when the Statute of a given international organization does not provide expressly for denunciation or exit, it is generally agreed that member states may well exercise their sovereignty to the full extent of quitting the organization; (d) accordingly, even when member states introduce some kind of limitation on their sovereignty in relation to their membership in intergovernmental organizations, they are far from relinquishing their sovereignty. Were they to do so, they would be transferring their sovereignty to a properly supranational institution which would eventually become itself a sovereign entity, as much as a federal state. This is not yet the case even for the EU. Were the completion of this process to materialize one day—certainly not in the near future—the EU would become a sovereign entity endowed with all the sovereign prerogatives currently provided for federal states under contemporary international law. Hence, this would not change the structure of an international community made up of a plurality of sovereign entities. The recent major institutional developments concerning the establishment of international criminal jurisdictions do not detract from the above reasoning. Suffice it to consider that the enforcement of the decisions of the ad hoc tribunals established by the Security Council, as well as of the International Criminal Court, equally depend on the collaboration by nation states, i.e. on the exercise of their sovereignty. The problems related to the execution of the arrest warrant recently issued by the International Criminal Court against the President of Sudan, Al-Bashir, is the latest and most prominent confirmation of that. Still in conformity with the sovereign equality paradigm, international institutions have provided the forums within which it has been possible for nation-states to promote a shift on the side of the normative quality of their material obligations—yet far from being completed, if ever—from the law of co-existence into one of co-operation.34 Such a shift could be detected at the universal, as well as at more specific levels, both ratione materiae, such as in the economic, financial, or environmental fields, or ratione personae through regional, or sub-regional organizations. Most importantly, still on the material law level, well-known developments have taken place—in the last sixty years more than ever before—towards the pursuit of general interests of the international community of states. While all developments 34

See generally Wolfgang Gaston Friedman, Law in a Changing Society (1972).

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consisting in the making of material international rules automatically result in some constraints on state sovereignty, this is especially so with regard to those among such rules that are of a solidarity nature and provide for so called erga omnes obligations, from those on the use of force to those on human rights.35 These developments have been so qualitatively intense as to affect, at least as a matter of principle, not only the material scope of the sovereignty of states, but also their sovereign law-making capacity,36 through a major change in the setting of the constitutional rules on recognition, to the effect that new conventional rules in contrast with such solidarity obligations are to be considered null and void. Indeed, in its most advanced expression, such developments have introduced in the second half of the last century the category of so called peremptory norms, or rules of jus cogens.37 The principle of the existence of a category of rules superior to the generality of rules because of the importance of their contents was totally unknown to the horizontal and bilateralistic setting of traditional international law that easily reflected at the structural level the sovereign equality paradigm. Indeed, the concept of a set of rules that, because of their contents, may not be derogated from by the free will of states through mutual consent, or possibly even through their participatory conduct in the making of an ordinary custom—be it general, or local—may seem to run contrary to the traditional concept of State sovereignty. However, such developments, as much incomplete as we shall see in the following paragraph, have been themselves the result of the exercise of the external sovereignty of the generality of nation-states, through their attitude. IV. Sovereignty and the Tensions between Material and Structural Legal Developments Toward Global Solidarity: A “Soft Jus Cogens” One can make the case that the developments mentioned above towards the making of international solidarity rules—hence, in principle restricting most significantly the sovereignty of individual nation-states—are incomplete, both in empirical and nor35

36

37

See, e.g., Sophie Annaker, The Legal Régime of ‘Erga Omnes’ Obligations in International Law, 46 Austrian J. Pub. Int’l L. 131 (1994); André de Hoogh, Obligations Erga Omnes and International Crimes (1996); Maurizio Ragazzi, The Concept of International Obligations “Erga Omnes” (1997). As put by Professor Reisman, the creation of the body of international law of human rights “[b]y shifting the fulcrum of the system from the protection of sovereigns to the protection of people, … works qualitative changes in virtually any component.” W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 872 (1990). For different views on the matter, see Michael Akehurst, The Hierarchy of the Sources of International Law, 47 Brit. Y.B. Int’l L. 273-285 (1975); Prosper Weil, Towards Relative Normativity in In International Law?, 77 Am. J. Int’l L. 413 (1983); Anthony D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens!, 6 Conn. J. Int’l L. 1 (1990); Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 Eur. J. Int’l L. 566 (1997); and Juan Antonio Carrillo-Salcedo, Reflections on the Existence of a Hierarchy of Norms in International Law, 8 Eur. J. Int’l L. 538 (1997).

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mative terms. The fact is that sovereign states appear ambivalent with respect to the effectiveness, if not the establishment, of such a set of superior rules. On the empirical side, suffice it to recall the all too well known recent cases of use of force in international relations, systematic torture and even genocide. On that score, the logical normative argument put forward by authoritative scholars38 and the ICJ39 alike is most welcome in order to defend the legal force of such rules, to the effect that their violation, when accompanied by denials of the alleged facts or by legal justifications, does not impair the legal force of the rules in point, but would even corroborate it. Under both circumstances, the states in breach of the obligations in point would exercise their sovereign prerogative of expression of their opinio juris in a way which would neutralize the deteriorating effect of their practice to the contrary. Be that as it may, one may not overlook the fact that the introduction into international law of such a special category of material obligations has not been accompanied by a parallel and proportionate development of structural rules for their enforcement. This emerges particularly from the law of treaties as codified by the Vienna Convention, from the Statute and the case-law of the International Court of Justice, as well as from the law of state responsibility. Indeed, the concept of jus cogens was first codified by the sovereign will of the States parties to the Vienna Convention on the Law of Treaties, whose Article 53 enunciates the existence of a set of material rules in international law whose importance for the international community is such that no derogation is permitted from them. That is to say that, when a treaty is at variance with one such rule, be that the ban on aggression, or on genocide, or torture, such a treaty is to be considered null and void. The Vienna Convention, however, falls short of matching such a codification of a major leap forward pertaining to material law with appropriate structural rules on the assessment of whether a treaty is in conflict with a superior material obligation. One cannot overlook that Article 66 provides for an exceptional case of compulsory jurisdiction for a dispute on the matter at issue, to the effect that any parties to a treaty could submit a claim on its incompatibility with a peremptory 38

39

As emphasized by Lady Higgins, “[n]ew norms require both practice and opinio juris before they can be said to represent customary international law. And so it is with the gradual death of existing norms and their replacement by others. The reason that the prohibition on torture continues to be a requirement of customary international law, even though widely abused, is not because it has a higher normative status that allows us to ignore the abuse, but because opinio juris as to its normative status continues to exist. No state, not even a state that tortures, believes that the international law prohibition is undesirable and that it is not bound by the prohibition. A new norm cannot emerge without both practice and opinio juris; and an existing norm does not die without the great majority of states engaging in both a contrary practice and withdrawing their opinio juris.” Rosalyn Higgins, Problems and Process: International Law and How We Use It 22 (1995). “If a State acts prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.” 1986 I.C.J. 14, 98 (June 27).

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rule before the ICJ, irrespective of the consent to the jurisdiction of the Court by the other states parties. However, considering that the concept of jus cogens has been introduced in Article 53 precisely for the protection of the common interest of the international community as a whole, even states that are not parties to a treaty in violation of peremptory norms would be impaired by the violation in question. Therefore, the fact that states that are not parties to the treaty in point would not have a cause of action under Article 66 shows that the same sovereign states that have promoted objectivism and solidarity in the development of material international law remain attached to the relativism and bilateralism of traditional international law assessment and enforcement. More generally, one may note that the introduction into international law of a body of peremptory rules geared towards the protection of the general interests of the international community as a whole has not been accompanied by an amendment of the Statute of the ICJ, which currently provides for no exception to the general rule according to which the jurisdiction of the Court is subject to the consent of the disputing parties. It was precisely on the basis of the rule on consensual jurisdiction that the Court, in the East Timor case, while recognizing the erga omnes nature of the obligation not to impair the right to self-determination, declared the claim inadmissible.40 Had it passed judgment over the legality of the disputed Australian oil exploitation within the continental shelf of East Timor in application of a treaty between Australia and Indonesia, it would have inevitably passed judgment also over the conduct of Indonesia which had occupied the Timorese land, but had not consented to the jurisdiction of the Court. The jurisdictional limitation in point can be said to be of a constitutional nature, even in formal terms, insofar as the Statute of the ICJ is an integral part of the UN Charter, also based on the sovereign will of its parties. Accordingly, any modification of the Statute would be subject to the especially difficult procedures for amending or reviewing the Charter under its Articles 108 or 109. Much the same ambivalent scenario appears in relation to the developments in the field of the law of state responsibility with regard to breaches of erga omnes obligations which, as put it by the ICJ, “by their very nature … are the concern of all States [and] in view of the rights involved, all States can be held to have an interest in their protection.”41 With respect to an alleged breach of such obligations, under Article 48 of the ILC Articles on State Responsibility, referred to member states in 2001 by the UN General Assembly,42 “[a]ny State other than the injured State is entitled to invoke the responsibility of another State … if … [t]he obligation is owed to the international community as a whole.”43 The lack of a compulsory third-party procedure for the assessment of breaches of erga omnes obligations appears all the more regrettable, insofar as, in case of such a breach, also states other than the injured state, not only 40 41 42 43

1995 I.C.J. 90. Barcelona Traction Case, 1970 I.C.J. 32. U.N. G.A.O.R. 3d Sess., U.N. Doc A/Res/3/217. 2001 ILC Rep. 56.

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may invoke the responsibility of the wrongdoer, but may also take coercive measures against it with a view to attaining the cessation of the breach and the reparation for the injured subjects.44 The paradox is that the normative development aimed at restricting individual state sovereignty in favor of the legal protection of the common interest, while risking to remain ineffective, due to the lack of adequate compulsory third-party mechanisms for assessment and enforcement, on the other hand lends itself to arbitrariness and abuse of unilateralism by the mighty states.45 This brings one to the consideration that the so-called principle of predictability, even more so, that of certainty, cannot be said to be, as such, a constitutive principle of a legal system, be it international or domestic. What seems to be of a constitutive nature in a legal system about such principles lies in the fact that they represent the normative aspirations and expectations inherent in every normative system and its underlying society, in the sense that its legal rules and their enforcement are but the formalization of the social aspirations of any given community.46 Accordingly, peremptory rules represent the normative formalization of the highest social aspirations of the international community, whose normative realization remains no less uncertain than that of ordinary rules. As much as peremptory norms may sensibly constrain the sovereignty of individual states, their creation has been in its turn the result of some kind of exercise of state sovereignty and, more so, would be their effective implementation, like with any other ordinary legal rule. Accordingly, the case could be made that the coming into being of jus cogens hardly represents a radical shift from the international law model based on the paradigm of state sovereignty, just as much as the latter defines “the status of an entity subject to international law.”47 The same system of assessment and enforcement provided for the generality of international rules—based on consent, and largely on self-assessment and self-help—when applied to the operation of peremptory rules, appears comparatively weaker and more significantly subject to abuses. 44 45

46 47

See Art. 54, id., at 356. Here, the special problems of enforcement of peremptory norms of international law merge with the general problems of enforcement of international law. On this score, Professor Reisman, rightly stated the following: “Here we encounter one of the most critical problems of contemporary international law. At the constitutive level, institutional arrangements have been established, but they have not been given sufficient resources … to accomplish the tasks assigned to them. Nor is this the result of accident or oversight: many actors in international law are ambivalent about establishing highly effective international institutions. Yet, paradoxically, reliance on other participants to make specific arrangements effective when the institutions that were created to do this cannot runs counter to a widely affirmed constitutive policy: prohibiting unilateral initiatives by confining the exclusive right to forceful implementation to the most inclusive institutions. When other participants with sufficient resources decide to apply them in a specific instance, their actions may implement that arrangement but at the cost of undermining the more general constitutive agreement.” Reisman, supra note 1, at 36. See Benjamin N. Cardozo, The Growth of the Law 69-72 (4th ed. 1931); Maurice H. Mendelson, The Formation of Customary Law, 272 Recueil des Cours 159 (1998). Wright, supra note 25.

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By entrusting new material rules with the protection of higher social values, without supporting them with new procedural rules for their enforcement, the international community appears paradoxically to have produced a set of “soft imperative rules.” It is as if the international community of sovereign States had engaged in an effort at fixing the normative parameters expressing its highest social aspirations, without the readiness of its members to submit to them, if not according to their unilaterally “sovereign” assessment. On this score, as well as with regard to international law in general, one would find it appropriate to recall the concept and function of the “myth system,” according to Professor Reisman’s reasoning. In his words, such a concept “differently from a ‘legal fiction’ is not widely appreciated as consciously false … On the contrary, it affirms values that continue to be important socially and personally. Although not applied in the jurisdiction of the operational code, the myth system may yet influence decisionmaking.”48 V. Remarks on the Ongoing Process A. On Empirical Grounds In the scholarly debate within the social sciences, during the political process which has been unfolding since the fall of the Berlin Wall until the explosion of the financial crisis in 2008, the legal paradigm of state sovereignty has appeared to be on its way down, due to different factual elements. Among such elements are the crumbling of a number of nation-states, i.e. the Soviet Union and the Former Republic of Yugoslavia, the failure of others, such as Somalia, as well as explosive ethnic tensions in old and newly formed states. It is also a matter of fact that, through the 1990s and during the first years of the new century, nation-states have lowered the degree of exercise of their sovereign authority through a large amount of deregulation at home and a shift towards international institutions of more sovereign prerogatives than ever before.49 On that score, one may recall the acceleration of the European integration process which took place in the 1990s, the establishment of NAFTA in 1994, or the hyper-activism of the UN Security Council, also during the first half of the decade. At the same time, public- and private-interest NGOs (PINGOs and BINGOs) have taken on an increasing role in international law-making, both in traditional intergovernmental and non-governmental contexts. More recently, especially in relation to the fight against terrorism, the Security Council seems to have been exercising lawmaking and enforcement powers, even addressed to individuals, that would traditionally pertain to

48 49

Reisman, supra note 1, at 44. See, e.g., José E. Alvarez, International Organizations as Law-Makers (2005); Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005).

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the state authority.50 Accordingly, over the last few years the governance of globally relevant matters can be said to have been taken care of at different levels of authority and through different centers of power—both of a governmental and of a nongovernmental nature—under a highly fragmented and differentiated legal setting.51 Most particularly, the financial, economic and communication aspects of globalization have increased the autonomous role of business actors and their capacity to interact largely aside of the state authority’s regulatory and enforcement control. Indeed, since the globalization of the free-market economy model boosted by the fall of the Berlin Wall, nation-states appear to have relinquished much of their regulatory authority, particularly in the financial sector, until the explosion of the crisis of 2008.52 Within the phenomenon of the rising role of non-state actors, one should also include the increased impact of domestic and international criminality. The latter has by definition always been a threat to state authority. However, through the increase in number and capacity of criminal organizations and their interactions on the international scene over the last few years, activities such as drug trafficking, illegal arms trading, international money laundering, corruption, tax evasion, counterfeiting, terrorism and trade in human beings have undermined state authority worldwide as never before. There is another undeniable factor, though generally underestimated, which has been increasingly operating over the last few decades towards the weakening of state sovereignty in simply functional and practical terms in industrialized as well as in developing countries and, even more so, in countries in transition facing the radical change of their political and economic regimes. This factor consists of the quantitative increase of the administrative burdens on the governmental apparatus of nation states, as well as of the new technical, legal and administrative complexity of the subject-matters falling within the political and administrative competence of nationstates. It reflects itself all the more in the inadequacy of the legal, administrative, executive and, eventually, political capacity of nation-states with respect to the ever increasing needs for governance. Such increased needs, both subjectively perceived and objective in nature, significantly bear on the exercise of both internal and external sovereignty, ranging from the increasingly perceived need for improved national 50 51

52

See Michael Bothe, Security Council’s Targeted Sanctions Against Presumed Terrorists: The Need to Comply with Human Rights Standards, 6 J. Int’l Crim. Just. 541 (2008). See, e.g., Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. Int’l L. 999 (2004). A most faithful picture of this trend was clearly captured in 1993 by Oscar Schachter in the following terms: “On the ideological level, the superiority of the markets over state control is almost universally accepted … Today the market—anonymous, impersonal, pervasive—is viewed as the engine of development. The state steps back; its legal power dwindles over currencies, interest rates, trade flows, rates of unemployment and foreign investment. Non-state mechanisms develop; private rather than public international rules prevail. A new international business class tends to identify itself with the global aims of its transnational companies rather than the political objectives of particular countries … .” Schachter, supra note 9, at 14.

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and international ethos—including increased expectations of fairness and well-being—to that of contributing to the multiplication of technical and political international forums in which states are to be represented. One should add the increased technical complexity of international negotiations and of the domestic regulatory action internationally required, be it on judicial cooperation, health or scientific matters, demographic growth and massive transboundary flows of people, management, exploitation and distribution of natural resources, or on environmental threats. The quantitative increase in the workload and the multiplication of internationally relevant subject-matters falling under the competence of more than one ministry that, until a few decades ago, would be only marginally involved in international affairs, such as those of interior, health or justice, has an especially negative impact from the external sovereignty point of view. It results in the difficulty in the representation of the state by a number of civil servants at odds with catching up with their international files. While this matter of fact may seem as a trivial point with respect to academic speculation, it often translates itself in the schizophrenic manifestation of the opinio iuris of the state and bears negatively on the international law-making process. Indeed, due to the increased difficulties in the preparation and co-ordination between the different branches of the administration competent on overlapping files in different forums, it may occur more frequently that different representatives of the same state may take different stands on the same or related issues. This obviously impairs the quality and consistency of international law-making and implementation. From an empirical standpoint, the above factual trends often referred to in order to substantiate the argument of the decline, if not the end, of the paradigm of state sovereignty in international law, seem far from proving the point or, even less so, its inevitability or policy appropriateness. As to the dismemberment and dissolution of a number of sovereign states, as well as the inter-ethnic fights falling short of provoking the collapse of a state, it is true that they have been linked to anti-sovereignty theoretical approaches, rhetoric and propaganda put forward in the political process by representatives of national or ethnic minorities. Such claims, however,—resting on the principle of self-determination, interpreted in a disruptive internal dimension—seem to have been purely instrumental in the pursuit of the control and exercise of sovereignty by the movements fighting the central government. Just like national liberation movements during the decolonization process, once gained control over a given territory or, better, once achieved new statehood, the anti-sovereignty fighters would become more Catholic than the Pope as champions of the paradigm of sovereign statehood.53 Their attitude went so far as to include claims of “domestic jurisdiction,” still based on the principle of selfdetermination, though applied in a purely external dimension with a view to buttress the principles of independence and non-intervention from other sovereign entities.

53

As plainly put it by Gerard Kreijen, the exercise of the right to self-determination “resulted in the transfer of sovereignty from the metropolitan states to their respective colonial dependencies, which thereby emerged as independent states.” Kreijen, supra note 14, at 128.

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Another factual consideration that seems to have been all too forgotten in cosmopolitan anti-sovereignty arguments is that, soon after a newly-found near-supranationalism through “unanimous multilateralism” epitomized by the new capacity to act by the Security Council in relation to the Iraqi invasion of Kuwait, as well as in the early stages of the crisis in Somalia and in the Balkans, by the second half of the 1990s, the U.S., on the one hand, China and Russia, on the other, clung again to their unilateral sovereign prerogatives preventing the institutional multilateralism of the Security Council to work. The Kosovo crisis in 1999 was just one example of such an attitude on both sides. One should recall how the hegemonic attitude of the previous U.S. Administration represented a celebration of state sovereignty to the extreme.54 The above examples are certainly far from rendering a good service to the paradigm of state sovereignty. There, a super-positivist approach has pushed national sovereignty to the extreme of subtracting the state from the principle of accountability under international law, precisely in contrast with the concept of sovereignty as enunciated above, to the effect that sovereign states are not subservient to the power of any superior entity, but are subject to international law.55 On the other hand, ever since the 9/11 terrorist attack of 2001, the increased threat of terrorism worldwide has resulted for a large number of countries in the tightening of national security measures, which represent one of the most typical forms of the enhancement of sovereign prerogatives, without necessarily infringing upon international law. As much as the new U.S. Administration has considerably swerved from the super-voluntaristic attitude of its predecessor, it appears, nonetheless, to have increased the regulatory exercise of its sovereignty, particularly in reaction to the financial and economic crisis, both at home and on the international scene through stricter compliance with international legal constraints and multilateralism. Indeed, the financial crisis of 2008 appears to have been made possible by the widespread de-regulatory attitude followed by a large number of nation-states which had been loosening the exercise of their sovereignty in the financial sector, at the regulatory, enforcement and co-operation level at home and internationally. By way of reaction to such a crisis, the current generalized trend seems to be precisely one towards the revival of state sovereignty, possibly in an inter-state concerted manner, in line with a renewed tentative shift from an international law of co-existence to one of co-operation. The Final Document of the G8 held in L’Aquila in July 2009 accounts for such an attitude, in the following terms: National governments have the primary responsibility for ensuring development, by engaging with their parliaments, local authorities, civil society organizations and citizens in shaping appropriate policies. … We will continue to support partner countries’ efforts to increase domestic revenues through modernized tax and customs regulations, improved

54 55

See supra notes 24-27. See supra notes 26 and 33.

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revenue collection capacities and effective fight against tax evasion, illegal financial flows and corruption … .56

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B. On Discursive and Normative Grounds Merging by way of conclusion the law discourse with a policy discourse about the law, one may well admit to the fact that, as of today, the international community of sovereign states has not prevented, and may be largely responsible for, the present gloomy prospects of global security vis-à-vis the new and the not so new environmental, economic, social and military challenges to the international community. The question, however, is on what empirical or normative grounds one could argue that the same human resources would produce better values and better governance under a different international structural regulatory setting. As we have seen above in empirical terms, the alternative to an international society of sovereign States offered so far by history is the hegemonic model. Apparently different alternative models have been propounded in different variations from various academic quarters aiming at some kind of a cosmopolitan world society characterized by a prominent role for differently organized non-state actors and by a reduced status for sovereign states and state authority. Along those lines, emphasis has been placed on the phenomenon of localism—either based on federalism or ethnicity, as a reaction to and, at the same time, as a feature of globalization57— leading to new demands for increased local rule and decentralization to the detriment of central state authority. Similar approaches would invoke an international community made up of a cosmopolitan network of relations between individuals, non-governmental associations and local communities.58 One of the latest theoretical tentative variations of this trend is the analysis of an allegedly emerging “global administrative law,” GAL for short.59 It purports to apply to a “global administrative space: a space in which the strict dichotomy between domestic and international has largely broken down, in which administrative functions are performed in often complex interplays between officials and institutions on different levels, and in which regulation may be highly effective despite its predominantly non-binding forms.”60 As much as the latter analysis may be appropriately descriptive of elements of practice 56 57

58

59 60

L’Aquila, Italy, July 8, 2009, Responsible Leadership for a Sustainable Future, para. 107 (on file with the author). For a lucid analysis of similar trends, see Benedict Kingsbury, Claims by Non-State Groups in International Law, 25 Cornell Int’l L. J. 481 (1992). See also Thomas M. Franck, Clan and Superclan: Loyalty Identity in Law and Practice, 90 Am. J. Int’l L. 359 (1996). See Richard Falk, The World Order Between Inter-State Law and the Law of Humanity: The Role of Civil Society Institutions, in Cosmopolitan Democracy 163 (Daniele Archibugi & David Held eds., 1995). See, for all, the monographic issue on this topic of 17 Eur. J. Int’l L. (2006). Nico Krisch & Benedict Kingsbury, Introduction: Global Governance and Global Administrative Law in the International Legal Order, in id. at 1.

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actually occurring on the international scene, it does not seem, at least as yet, to provide for a really alternative model ensuring any better governance than that under the present paradigm of state sovereignty. The very same proponents of this theoretical approach seem to be skeptical about its capacity to provide an effective alternative model for universal governance.61 Indeed, the main question arising in relation to similar policy designs is who, how and through which regulatory setting would govern the change and run a cosmopolitan world, which would inevitably be characterized by conflicting claims of competing social groups identified by most varied parameters, from territory or ethnicity, to religious belief or, especially, economic interests. The suspicion is that, even if states were to spontaneously relinquish their sovereign prerogatives, it seems highly unlikely that it would be a group of enlightened public-interest NGOs (PINGOs), but a host of strong multinationals and business-interest NGOs (BINGOs), well organized economically and, eventually, militarily. This brings one to discard the approach that would give full leeway to the neoliberal global market society as a model for global governance alternative to, and erosive of, the one based on the paradigm of sovereign equality of States.62 Such an approach would lead to the hegemony of oligopolies, particularly in the field of natural resources, bringing about disruptive inequalities, much more than under the present, though defective, sovereign state-based international legal system. The protection of the economic elites benefiting from such inequalities would require police action that in a state of the “neo-liberal world republic” would no longer be characterized as internal or international conflict—and accordingly governed by humanitarian law— but as outright conflict and violence, or outright police and economic subjugation. Starting from a demand of deregulation and reduction of normative authority, such a neo-liberal global market approach would result in an uncontrolled hegemonic power based purely on economic market values whose protection would benefit an ever growing transnational financial and economic elite. The recent considerable number of cases of massive violations of human rights by multinational corporations

61 62

See reference to the contributions introduced in id. at 8, 9, and 12. See particularly at the time when such an approach seemed to be most successful, that is, in the 1990s, Vivien A. Schmidt, The New World-Order Incorporated: The Rise of Business and the Decline of Nation-State, 124 Daedalus 79 (Spring 1995); and S. Strange, id., at 58, quoted by Schachter, supra note 9, at 9 n.8. With no little sense of preoccupation, Professor Schachter, in the ‘90s would observe the following: “On the ideological level, the superiority of markets over state control is almost universally accepted … Today the market—anonymous, impersonal, pervasive—is viewed as the engine of development. The state steps back; its legal power dwindles over currencies, interest rates, trade flows, rates of unemployment and foreign investment. Non-state mechanisms develop; private rather than public international rules prevail. A new international business class tends to identify itself with the global aims of its transnational companies rather than the political objectives of its particular countries … The state no longer commands the primary allegiance of this class though still businessmen will still turn to the state for intervention when it seems useful.” Id. at 10.

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condemned by domestic courts for breaches of international law proves the point. 63 At the same time, they give further substance to the claim for a renewed regulatory and enforcement role of sovereign states as the actors ultimately accountable under international law. A diffuse tentative alternative model coming from the scholarly quarters of social sciences is the “constitutionalist” approach. Since the latter is derived from the theory of the state, one common denominator among the different components of the constitutionalist theory lies in the fact that it advocates further and more stringent organizational developments for international and, possibly, supranational institutions. It is no surprise that the term constitution has been mostly introduced in relation to the United Nations64 as well as other global institutions, such as the World Trade Organization.65 One may agree that such institutions represent important elements of the ongoing international constitutive process. To put it in more mainstream language, one sees no objection in finding in such constitutive agreements important written elements of a more general unwritten constitution of the international community. True, such developments involve some transfer of sovereignty from nation-states to intergovernmental institutions, but this is the result of the constitutive free will of their members. Most importantly, such institutional arrangements are far from dismantling the sovereignty-based structure of international law and this is so not just because their written constitutive scheme is not being faithfully applied. With specific reference to the United Nations Charter, one would make the case that it still largely reflects the ongoing constitutive international process based on the paradigm of sovereignty, possibly with the need for adjustment of the composition of the Secu63

64

65

See Fried van Hoof, International Human Rights Obligations for Companies and Domestic Courts: An Unlikely Combination?, in The Role of the Nation-State in the 21st Century: Human Rights, International Organizations and Foreign Policy. Essays in Honour of Peter Baehr 47 (Monique Castermans-Holleman, Fried van Hoof & Jacqueline Smith eds., 1998); Menno T. Kamminga & Sam Zia-Zarifi, Liability of Multinational Corporations Under International Law (2000). See, e.g., Blaine Sloan, The United Nations Charter as a Constitution, 1 Pace Y.B. Int’l L. 61 (1989); Attila Tanzi, Prospects for Revision of the United Nations Charter, in Prospects for Reform of the United Nations System 455 (1993); Christian Tomuschat, The United Nations at Age Fifty. A Legal Perspective (1995); Pierre-Marie Dupuy, The Constitutional Dimension of the Charter of the United Nations Revisited, 1 Max Planck Y.B. U.N. L. 1 (1997); Bardo Fassbender, The United Nations as Constitution of the International Community, 36 Colum. J. Transnat’l L. 529 (1998); Ronald St. John Macdonald, The Charter of the United Nations in Constitutional Perspective, 20 Australian Y.B. Int’l L. 205 (1999); Sandra Szurek, La Charte des Nation Unies, Constitution Mondiale?, in La Charte des Nations Unies 29 (Jean-Pierre Cot & Alain Pellet eds., 3d ed. 2005); La Charte des Nations Unies, constitution mondiale? (Régis Chemain & Alain Pellet eds., 2006). Ernst-Ulrich Petersmann, Constitutionalism and WTO Law: From a State-Centered Approach Towards a Human Rights Approach in International Economic Law, in The Political Economy of International Law 32 (David L.M. Kennedy & James.D. Southwick eds., 2002).

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rity Council. Indeed, apart from the solemn restatement of the principle of sovereign equality in Article 2, paragraph 1, of the Charter, the membership of the General Assembly is actually based on this principle, with each member having one vote; its decision-making falls short of legislative power, even though it may result in highly authoritative statements, as has been the case with the 1948 Universal Declaration of Human Rights, to state one of many examples; the principle of peaceful settlement is binding, but its operation is subject to the sovereign consent of the disputing parties; the Security Council has been entrusted with powers that have legally binding force, but their exercise is subject to the policy dealings among its sovereign members, according with the Charter and not as a deviation from it. However, many versions of the constitutionalist approach propound some kind of new world order in which supranational institutions—possibly made up of non-state representatives—would provide for the regulatory setting of transnational relations directly addressed to non-state actors. Hence, in some kind of cosmopolitan fashion, state sovereignty would be ideally disposed of, except perhaps for the hegemonic world structure of power that would replace the present multilateral governmental scenario. As a matter of positive law, a constitutional approach to the international process conceived in such terms is far from reflecting reality. On this score, in line with the above considerations on the United Nations, Professor Reisman in most clear terms emphasized as follows: There is no extant “global state” nor is there an incipient one. Pretending that the Security Council is the embryonic Executive Branch or Executive Committee of a World State, that the General Assembly is its embryonic legislature and that the International Court is its embryonic Supreme Court may serve some unifying mythic purposes. But this attitude disserves inquiry if it directs attention away from the processes by which law is actually made and applied in international politics; to the extent that it does so, faulty theory undermines those trying to perform legal functions.66

As a matter of policy, it is difficult to disagree with those who maintain that, even though the organization of the world power through the paradigm of state sovereignty has been for centuries to date far from bringing about an ideal world equitably respectful of the vital human needs and values, no alternative paradigm appears to be on offer that may be capable of providing for a more functional and humane distribution and management of world power.67 Doing away with the paradigm of state sovereignty as a constitutional pluralistic distribution of world power may lead to subjectively undesirable scenarios. As it appears from the previous paragraph, the most likely among such undesirable scenarios emerges from empirical evidence showing how every attempt in the past to discard the principle of sovereign equality has been made with a view to replace it with some kind of imperial or hegemonic project,

66 67

Reisman, supra note 1, at 34 (footnotes omitted). See, for all, Kingsbury, supra note 8, and the authors quoted therein.

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opening up to little chance for democratization.68 Linking once more the point at issue to the constitutional nature of the basic rules of the international legal process, similar concerns were long anticipated by Immanuel Kant when he shifted from his original view of the constitutionalization of international law through a “cosmopolitan constitution” [weltbürgerliche Verfassung], bringing about a “world republic,” to a sovereignty-based construction of a “league of nations” [Völkerbund].69 By way of conclusion in policy terms, but with a pinch of positivism, one would link the aspirations behind the above referred debate with the most virtuous ongoing trends in the international material law process. Accordingly, one would advocate the enhancement of the principle of accountability in a system of nation-states through the increased development and articulation of the principle of due diligence70 as a result of collective self-constraint by sovereign states and pressure from a transnational civil society increasingly aware of the benefits for all deriving from the pursuit of the common interest.

68 69 70

See text supra note 33. Supra note 6. See, for all, Robert P. Barnidge, Jr., The Due Diligence Principle Under International Law, 8 Int’l Comm. L. Rev. 81 (2006).

Chapter 18 International Law as a Coherent System: Unity or Fragmentation? Christian Tomuschat

I. Introduction The fragmentation of international law has received growing attention in recent years, in particular, after the International Law Commission (ILC) in 2000 had included the issue in its long-term programme of work. While originally the topic was designated as “Risks ensuing from the fragmentation of international law,” the decision to start actual work on it in 2002 reformulated the title, calling it—by departing from the rather negative connotation of the initial stage—“Fragmentation of international law: difficulties arising from the diversification and expansion of international law.” Accordingly, a Study Group was established, the chairmanship of which was entrusted to Martti Koskenniemi, after Bruno Simma, the first chairman, had been elected judge of the International Court of Justice. The work was completed in 2006, the report of the Study Group1 being “taken note of ” by the plenary of the ILC and later by the General Assembly.2 The wealth of ideas and materials assembled in the Report, condensed in a long list of specific conclusions,3 will doubtless stimulate academic debate for many years to come. The following considerations are meant as a modest contribution to that debate. II. A Golden Past? A. Legal Doctrine The concept of fragmentation, used as a diagnostic key word for a seemingly recent disease, tends to suggest that there was once, at some earlier point in time, a coherent 1

2 3

U.N. Int’l Law Comm’n, Study Group on Fragmentation of Int’l Law, Report: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (April 13, 2006) (finalized by Martti Koskenniemi) [hereinafter Koskenniemi Report]. G.A. Res. 61/34 (Dec. 4, 2006). U.N. Int’l Law Comm’n, Report on the work of its 58th session (1 May – 9 June and 3 July – 11 August 2006), U.N. Doc. A/61/10, para. 251.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 323-354.

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and unified system of international law, unaffected by the “difficulties” that have only emerged in our epoch. Thus, it would seem that strenuous efforts must be undertaken to return to that “golden epoch.” One may, however, nurture serious doubts as to the correctness of that idyllic picture. It is true that already the first one of the classics of international law, Francisco de Vitoria, described the world as a community held together by legal ties: “Humankind as a whole, which in some sense is a polity, has the power to enact laws equitable and suitable for everyone, which belong to international law.”4 This dictum had as its foundation a deep conviction that natural law provided a framework that was binding irrespective of the consent given by the monarchs who claimed for themselves the monopoly of sovereign power. However, in the course of the following centuries, in particular after the Westphalian Peace of 1648, the doctrines of divine and natural law gradually lost their dominant place in legal thinking through the ongoing process of secularization.5 At the end of the nineteenth century, the sovereignty of the nation-State had become the dominant feature of the system of international law. Only few traces of the universal “polity” perceived by Francisco de Vitoria remained. The most solid stone of that common house were the Hague conventions of 1899 and 1907. Otherwise, however, international relations were largely viewed as a power struggle in which, day after day, new coalitions had to be forged according to political expediency. Academic voices never ceased to invoke the unity of international law. But their real impact was minimal. The European nations were engulfed in chauvinistic ambitions, each one of the bigger powers seeking to establish some kind of hegemony. Common projects did not exist so that key concepts like co-operation or solidarity, which today permeate the entire texture of any relevant textbook, did not even belong to the language of international law. In one crucial respect, fragmentation was present as a major hallmark of international law until the middle of the twentieth century. It was the exclusion of the peoples under colonial domination from the processes of ordering international relations which reflected the co-existence of two worlds, the world of the holders of power, essentially European nations or nations of European descent, and the world of those who had been subjugated, being unable to shape their own destiny. Until the beginning of the nineteenth century, slavery was the most palpable expression of that state of affairs. For centuries, the people from the African continent had been treated like cattle. Only in a world that respects the dignity of the human being could the exclusion of a large part of humankind from the helm of the world’s governing institutions and their concomitant humiliation be ended. Thus, if looked at with a slightly higher degree of accuracy and human empathy, the affirmation that classical international law constituted a coherent whole, looks fairly hollow. Ovid’s aurea aetas cannot be found in the past centuries when international law made its first appearance.

4

5

“Habet enim totus orbis, qui aliquo modo est una respublica, potestate(m) ferendi leges aequas et convenientes omnibus, quales sunt in jure gentium.” De potestate civili, section 21 (1528), in Relecciones Teológicas del Maestro Fray Fr. De Vitoria 207 (L.G.A. Getino ed., 1934). See Wilhelm G. Grewe, The Epochs of International Law 349 et seq. (2000).

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

It should not be denied that international law existed not only as an academic discipline but also as a practice from the eighteenth to the twentieth century, notwithstanding the division of humankind in different groups with unequal stature. International law has always been conceived of as a system of interaction with specific peculiarities. In particular, it was invariably held that treaties entered into by a State must be complied with: pacta sunt servanda. Thus, international law was able to create foundations upon which mutual trust and confidence could grow among its participants. Law is not as susceptible to political changes as purely political promises although it is not totally secluded from the course of history. In that sense, international law has always constituted an order endowed with a specific systemic identity. The essential question, however, is how that complex of principles and rules can be defined from today’s viewpoint, in particular concerning its structure and content. In that regard, a perusal of early academic treatises is most revealing. At first glance, one notices that international law did not comprise much substance ratione materiae. In fact, for lengthy periods international law had as its main function to separate the jurisdictional spheres of sovereign States from one another. States were considered to be, and saw themselves as, self-reliant fortresses. Before international trade commenced its transboundary expansion in the nineteenth century, even smaller States, and to a great extent also tiny States, could attain a high degree of real autonomy. In daily practice, outside armed conflict, human lives were subject to the occurrences in their home States. No foreign authorities enjoyed any power to affect them in an adverse manner. International institutions endowed with governmental jurisdiction did not yet exist. Thus, international law comprised a small circle of matters only. Thus, Georg Friedrich Martens, in his Précis du droit des gens moderne de l’Europe,6 writes some pages about States, the acquisition of territory and the principle of equality, but the bulk of his observations is devoted to diplomatic relations and to war—and how to make peace after war. His dry treatment of the subject matter was continued by Johann Ludwig Klüber7 who, similarly, lacked any kind of forward-looking imagination, having become lulled in Spitzweg-like dullness.8 In Henry Wheaton’s treatise of 1836,9 the emphasis is still very similar. Large parts of the book deal with “rights of legation” and with the rules of warfare. Still, it is only the individual State which is deemed worthy of being mentioned. As far as international co-operation is concerned, Wheaton confines himself to referring to “treaties of alliance.” August Wilhelm Heffter, who published Das Europäische Völkerrecht der Gegenwart in 1844,10 had much more to say about international treaties but still was 6 7 8 9 10

Georg Friedrich Martens, Précis du droit des gens moderne de l’Europe (2d ed. 1801). Johann Ludwig Klüber, Europäisches Völkerrecht (1821). Cf. the sarcastic comments by Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960, at 19-22 (2001). Henry Wheaton, Elements of International Law (1836). His book remained influential in Germany, an eighth edition appeared more than fifty years later. August Wilhelm Heffter & F. Heinrich Geffcken, Das Europäische Völkerrecht der Gegenwart (1888).

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not able to identify any overarching structures of an international community that would have tied together the States as the building blocks of the international legal order. Indeed, the academic writers could not but take note of the political situation as it prevailed in their time. In the introduction of his treatise, Heffter draws attention to the Holy Alliance concluded between the leading European powers in the aftermath of the Napoleonic wars,11 but he views the Alliance as no more than a political modus vivendi. According to him, European stability is guaranteed by an equilibrium, founded on “national power and reciprocal respect” as factual elements.12 Thus, the law has no real role to play in maintaining the delicate configuration as it had crystallized after the Vienna Peace Treaties of 1815. With the advent of industrialization and the expansion of international trade in particular in the second half of the nineteenth century, the parochial sovereignmindedness of European lawyers subsided to some extent. On the German side, it was Johann Caspar Bluntschli, a Swiss national teaching in Heidelberg, who introduced new ideas about the legal unity of human kind. In the second one of his 862 propositions about international law, he states that “the common human nature is the natural bond which binds together all peoples to form one human kind.”13 Significantly enough, he participated in the foundation of the Institut de droit international whose aim it was precisely to overcome the narrowness of nationalistic thinking. But at the level of practical politics, the Institut was not particularly successful.14 Apparently, the catastrophe of two world wars was necessary before Europe could agree on such principles as peace and human rights also appearing on the political agenda of its leaders. B. The Formal Unity of International Law—Theory and Practice As just hinted at, the law of treaties was a structural component already in those early treatises of the nineteenth century. It is common knowledge that indeed the law of treaties is considered by some to constitute the primary source of international law, the pacta sunt servanda rule even encapsulating the very essence of international law. Indeed, the law of treaties is a set of rules that cut across all fields of life. Treaties have no specific subject-matter of their own. They are multi-purpose instruments. Accordingly, the law of treaties was just a mechanical tool, usable for any political strategy. If States wish to co-operate with effect beyond their borders, they need some device permitting them to establish (relatively) stable and trustworthy relations between the relevant parties. But this flexible character of treaties does not confer on them any intrinsic value beyond their technical suitability. In the eighteenth century, 11 12

13 14

Id. at 9-10. By contrast, Grewe, supra note 5, at 282, is of the view that the principle of balance of power had been elevated to the rank of a “fundamental constitutional principle of the Droit public de l’Europe.” Das moderne Völkerrecht der civilisirten Staten als Rechtsbuch dargestellt 54 (1868). See Koskenniemi, supra note 8, at 39 et seq.

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

treaties served to carve up Poland between Austria, Prussia, and Russia (1772, 1793, and 1795),15 and the unequal treaties that China had to conclude with the Western powers after it had fallen prey to Western colonialism are still bitterly remembered in that country.16 The United States succeeded in concluding a number of one-sided treaties with Latin American countries, among which the treaty of February 16, 1903 with Cuba, under which Guantánamo was leased to the United States,17 stands out today as the most problematic one with a chain of unpredictable repercussions. The Versailles Treaty was imposed on Germany, which was not given the slightest opportunity to participate in its negotiation and drafting,18 and some years later, in 1939, Hitler Germany and the Soviet Union concluded a secret agreement that divided up the Baltic States and Poland between themselves.19 A balance sheet demonstrates that before 1969, when the concept of jus cogens was accepted by the international community, treaties were just an instrument for the implementation of power politics.20 Consequently, it is hard to accept the proposition that the law of treaties should have embodied the unity of international law at a time when it was not yet imbued with some kind of moral substance. Another one of the systemic features international law has been, from its inception, the rules on State responsibility. Indeed, the principle of pacta sunt servanda and State responsibility go perfectly together. The promise enshrined in pacta sunt servanda needs some kind of sanction to be effective. If a breach of a treaty or other rule of international law did not entail any consequences, the logical concept of law—as embodying reliable expectations—would almost necessarily collapse. The bindingness of international law must also be reflected in rules providing for a lawful response by the aggrieved party. In this respect, legal commitments differ from commitments that are solely based on a code of good political or social conduct. 15 16 17

18

19

20

See, e.g., Jerzy Lukowski & Hubert Zawadzki, A Concise History of Poland 12032 (2d ed. 2006); Gotthold Rhode, Geschichte Polens 311-27 (1966). Anne Peters, Treaties, Unequal, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2008), available at http://www.mpepil.com/. Agreement between Cuba and the United States for the Lease of Lands for Coaling and Naval Stations (Feb. 16, 2003), 192 Cons. T.S. 429, XCVI U.K.F.S. 546. Analysis of that treaty by Alfred de Zayas, The Status of Guantánamo Bay and the Status of the Detainees, 37 U.B.C. L. Rev. 277 (2004). See Christian Tomuschat, The 1817 Peace Treaty between France and Germany and the 1919 Peace Treaty of Versailles, in Peace Treaties and International Law in European History 382, 388 (Randall Lesaffer ed., 2004). For the text of that protocol (in German), which was annexed to a German-Soviet Treaty of non-aggression of 23 August 1939, see http://www.ns-archiv.de/krieg/sowjetunion/ vertrag/nichtangriffspakt.php (visited 29 April 2009). For an extensive commentary, see Dietrich A. Loeber, Legal Consequences of the Molotov-Ribbentrop Pact for the Baltic States on the Obligation “to Overcome the Problems Inherited from the Past,” 1 Baltic Y.B. Int’l L. 121-66 (2001). But see Heffter & Geffcken, supra note 10, at 47-48, who argues that the introduction of maintenance of slavery can never be validly promised, since such a stipulation would be contrary to the “moral world order.”

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Again, it is revealing to have a somewhat closer look at the rules on State responsibility as they are enunciated in the early treatises of international law of the nineteenth century. To be sure, responsibility for breach of contract or breach of diplomatic immunities, in particular, was invariably mentioned. But the treatment of the topic was generally confined to a few sparse observations. Thus, Klüber deals with the rights of an injured State within the framework of his chapter on war,21 and the same classification is to be found in Wheaton’s treatise where forcible measures short of war are presented under the heading “commencement of war, and its immediate effects.”22 This rather cursory discussion shows how little developed international law was at that time as a true comprehensive system. It was only after the emergence of arbitration as a device resorted to by diplomatic practice for the solution of difficult international disputes that the law of State responsibility broadened and received more elaborate rules through the ensuing case law. A path-finding role was played here by the famous Alabama arbitration in 1872.23 Essentially, however, before the outbreak of World War II international law provided rules for a limited number of subject-matters only which stood largely in isolation from one another. There was little or no overlapping between those different sectors. Each one could be managed independently, notwithstanding some political inter-relationships as they naturally exist in dealings between nations. Indeed, it is obvious why the law of State responsibility could not be fully developed at the heyday of the sovereign State. With the disappearance of natural law and the rejection of the doctrines of just war, it had become clear that war, a fact of life, was not placed under a ban by international law. Nations were entitled to resort to war if they felt, at their unilateral discretion, that their rights had been violated by some other nation. Plans to establish a general prohibition on war foundered at the two Hague Peace conferences of 1899 and 1907; instead, the conferences had to confine themselves to stating sets of jus in bello among which the Hague Rules on War on Land are the most famous ones. As a whole, therefore, the obligation to comply with obligations under international law was placed under a defining reservation, namely that any changes that could be brought about by the unleashing of war. Thus, the whole of international law stood on clay feet. At any time, a State could overturn the network of international obligations in which it was enmeshed by resorting to armed force as the “supreme arbiter” in international disputes.24 It is significant, in this respect, that the first special rapporteur of the ILC on the topic of State responsibility, Cuban national F.V. García Amador, approached the topic from the viewpoint of diplomatic protection. For him, State responsibility was nothing else but a supplement to the law of aliens which requires State to grant a certain minimum of rights to foreign nationals. It took a number of years before the

21 22 23 24

Klüber, supra note 7, at 377-83. Wheaton, supra note 9, at 209-12. 20 Martens NRG 767. Cogently observed by 2 L. Oppenheim & H. Lauterpacht, International Law 179 (7th ed. 1952).

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

ILC distanced itself from this course.25 Only in 1963, at the outcome of the work of a subcommittee specifically appointed for that purpose, did the ILC determine that its work on state responsibility should focus on the general rules which are the same for all kinds of unlawful acts (secondary rules), without any regard for the substantive categorization of the primary rules concerned.26 With this decision, which approved the so-called “Ago concept,”27 the unity of the topic was formally acknowledged and ceased to be only an academic postulate. Apart from the law of treaties and the law of State responsibility there existed, during the nineteenth century and the early twentieth century, relatively few sectors of international law where truly cross-boundary regimes had emerged. The jus in bello was already mentioned, which after the two Hague Conferences of 1899 and 1907, where quite a considerable number of conventions concerning the laws and customs of war had been adopted, reached another culmination point in 1929 with the Geneva Convention Relative to the Treatment of Prisoners of War.28 The law of aliens expanded especially in the aftermath of the Mexican revolutions inasmuch as the settlement of the injurious consequences of those upheavals was entrusted, in 1923/1924, to a general claims commission.29 These developments already lead into the twentieth century, where the basic axioms of international law changed dramatically after the end of World War II. Of course, this short summary can only reflect general lines of development. The nineteenth century already saw the beginnings of co-operation in the economic field and for the promotion of technical co-operation. Thus, the International Telegraph Union came into being in 1865,30 when hardened nationalists still saw their own State as the true and only centre of the world, and the General Postal Union was established in 1875/75.31 One might also mention the First European Danube Commission,32 which may truly be called the first international organization endowed with administrative decision-making powers vis-à-vis individuals. However, in general terms, these institutions were clearly confined to administering narrow sectors of activity. Occasionally, conflicts may have arisen which were not publicized and cannot be remembered more than a century later. On the whole, however, the

25 26 27 28 29 30 31 32

For a summary of the work of the ILC on State responsibility, see The Work of the International Law Commission 121-35 (5th ed. 1996). U.N. Int’l Law Comm’n, Report on the work of its 15th session (6 May – 12 July 1963), U.N. Doc. A/5509/224, para. 52. Roberto Ago was the chairman of the sub-commission which studied the issue in 1963 and thereupon became the rapporteur on the topic. Geneva Convention Relative to the Treatment of Prisoners of War (July 27, 1929). See General Claims Commission (Mexico and United States), available at http://www.lib. utexas.edu/taro/utlac/00024/lac-00024.html (visited Apr. 29, 2009). See Siegfried Magiera, ITU—International Telecommunication Union, in 2 United Nations: Law, Policies and Practice 821 (Rüdiger Wolfrum ed., 1995). See Siegfried Magiera, UPU—Universal Postal Union, in id. at 1382. See Ignaz Seidl-Hohenveldern, Danube River, in 1 Enc. Pub. Int’l L. 934-37 (1992).

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different regimes operated separate from one another. Additionally, there was hardly any need for some kind of interlinkage. In conclusion, one may say that during the nineteenth-century international law showed all the characteristics of a coherent system. But that system constituted a unity only in a formal sense. The main building blocks were national sovereignty on the one hand and the maxim pacta sunt servanda on the other. Regarding its content, however, international law was essentially shaped by the will of its actors, sovereign States. International law could carry any form of substance. The values upon which the legal order rested were anchored in layers of moral and religious convictions, but did not rest on legal foundations. This balance sheet is a far cry from any ideal representation of international law as a coherent unit in substance that might have been destroyed in our time only. III. The Current Position The current position in the first decade of the twenty-first century has greatly changed by comparison with the position under “classical” international law. Despite of the centripetal tendencies to be described in the following, international law, however, will never attain the cohesiveness of a national legal system. The elementary facts are well-known to any international lawyer.33 A. Institutional Variety 1. No Centralized Legislature Rightly, Michael Reisman has observed that there is “no extant ‘global state”’ and that there is neither “an incipient one.”34 First, the international legal order lacks a centralized legislature, and the emergence of such a legislature is not to be expected in the near future. State sovereignty has been considerably curtailed through the growth of international organizations with decision-making powers. But to adhere to such organizations is still a decision which States can take freely. States are not even obligated to join the United Nations. A people, organized in a State, is not hindered from seeking an existence in isolation from the rest of the world if it so chooses. Of course, political constraints will normally prevent such isolationism, but in legal terms the so-called “obligation to intercourse,” which was a favorite topic of the nineteenth and early twentieth century,35 has not crystallized as customary law. Only in the field of international peace and security have changes taken place that offer a vast potential 33

34

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For a summary of the relevant arguments, see Joost Pauwelyn, Conflict of Norms in Public International Law. How WTO Law Relates to Other Rules of International Law 13 et seq. (2003). W Michael Reisman, On the Causes of Uncertainty and Volatility in International Law, in The Shifting Allocation of Authority in International Law 33, 34 (Tomer Broude & Yuval Shany eds., 2008). Franz von Liszt & Max Fleischmann, Das Völkerrecht 126 (12th ed. 1922); Alfred Verdross, Völkerrecht 201 (1937).

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

for development in the future. There is no need to explain at great length the relevant resolutions of the Security Council. Resolution 1373 (2001) has established the claim of the Security Council to issue resolutions that have a regulatory character with a wide scope ratione materiae and ratione personae, resolutions that may truly be called international statutes from the viewpoint of substance. While Chapter VII of the UN Charter has served with regard to Resolution 1373 as the basis for combating the financing of terrorism, Resolution 1540 (2004) provides that weapons of mass destruction may not be made accessible to private actors. Notwithstanding some criticism, international diplomatic practice has already acknowledged the power of the Security Council not only to act in view of specific crisis situations, but also to combat threats of a general nature.36 At the present juncture, it cannot be said what use the Security Council will make of that (new?) regulatory competence. But it should be borne in mind that it is not subject to any kind of legal review within the UN system and that it has consistently shown a certain tendency to adopt a broad, extensive interpretation of the powers conferred on it under Chapter VII. One may safely assume, therefore, that the Security Council will act in each and every instance where it feels that in the interest of humankind as a whole specific measures are urgently required.37 In such instances, the permanent members can be expected to act together without making use of their blocking veto power. Apart from that, regulatory variety will persist. Also in the future the international treaty will remain the main instrument of law-making, whereby States can make effective use of their sovereign power to regulate, without undue outside interference, their internal and external matters as they see fit. However, the danger of fragmentation resulting from law-making by treaty remains within relatively narrow boundaries, particularly because bilateralism is on the wane. After 1945, resort to multilateral treaties has significantly altered the landscape of treaty-making. Whenever such treaties are elaborated at the universal level, fragmentation ratione personae can be avoided, provided, of course, that the instrument concerned receives the support of individual States through formal acceptance. It is, unfortunately, not a rare occurrence that State representatives feel impelled, in international meetings, to subscribe to commitments which later they cannot justify vis-à-vis their domestic audiences. The International Labour Organization has been hit especially hard by such ambivalent posturing.38

36

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Suggested at an early stage by Christian Tomuschat, Obligations Arising for States Without or Against Their Will, 241 Recueil des cours 195, 344 (1993-IV); thereafter by Daniel H. Joyner, Non-Proliferation Law and the United Nations System: Resolution 1540 and the Limits of the Power of the Security Council, 20 Leiden J. Int’l L. 489 (2007); Roberto Lavalle, A Novel, If Awkward, Exercise in International Law-Making: Security Council Resolution 1540 (2004), 51 Neth. Int’l L. Rev. 411 (2004); and Stefan Talmon, The Security Council as World Legislature, 99 Am. J. Int’l L. 175 (2005). Underlining the difficulties impeding its effectiveness is Reisman, supra note 34, at 47. See Alfred Wisskirchen, The Standard-Setting and Monitoring Activity of the ILO, 144 Int’l Labour Rev. 253-89 (2005).

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It must be admitted, on the other hand, that multilateral treaty-making does not completely prevent the threat of fragmentation ratione materiae.39 When governments convene to draw up international treaties, they are normally represented by civil servants with specific competence in the field under discussion. Specialists in human rights law are sent to the UN Human Rights Council and the General Assembly, and experts in international trade law are delegated to WTO conferences where new instruments are being considered. The highest degree of specialization may be present in international meetings devoted to environmental issues. Few participants in such meetings have, as generalists of international law, a general overview of the entire field of international law to avoid any conflicts with other sets of rules in the legal framework to be established. Mostly, however, the texts of treaties themselves are not marred by any inconsistencies. Conflicts will only emerge afterwards in the process of implementation of the legal regime concerned. The incompatibilities that may arise between commitments under the different WTO regimes and obligations resulting from other specialized treaties, in particular in the field of environmental protection, have given birth to a huge quantity of legal writings. Reflection on the cohesiveness of international law has thereby been greatly enhanced. 2. No Centralized Adjudicatory Body It is also clear that, for the foreseeable future, there will be no stream-lined system of international adjudication. Under the Statute of the International Court of Justice, consent remains the key element for the purpose of establishing jurisdiction. Accordingly, States can quite simply block judicial settlement of disputes opposing them to other States by not expressing that consent. Although consent can be given in advance, either by accepting a general clause of judicial settlement in a treaty (Article 36(1), second alternative ICJ Statute) or by making a unilateral declaration (Article 36(2) ICJ Statute), access to the ICJ remains difficult. Generally, the relevant treaty clauses are narrowly framed, and on the other hand unilateral declarations may be restricted by so many reservations that their scope is reduced to a minimum that leaves no real room for bringing a dispute to adjudication.40 Thus, the principle of free choice of means for the settlement of international disputes, as it is laid down in Article 33(1) of the UN Charter, seriously hampers adjudication. Some well-known departures from free choice of means have made their appearance in recent decades, but they remain rare examples. There is no need to go into details. The most complete system of judicial adjudication has emerged in the European Community where even private individuals are admitted as claimants. Democratization has replaced the former monopoly of seizure held by governments. The second great success story of adjudication is the European Court of Human Rights (ECtHR) inasmuch as it holds sway over forty-seven member States. 39

40

For a recent discussion of that state of affairs, see Dirk Pulkowski, Structural Paradigms of International Law, in The Shifting Allocation of Authority in International Law, supra note 34, at 51, 52 et seq. A fine case in point is the Indian declaration of Sept. 18, 1974, available at http://www. icj-cij.org/jurisdiction/index.php? p1=5&p2=1&p3=3&code=IN (visited April 30, 2009).

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

All of the governmental acts of those States can be challenged before the Strasburg Court, provided that the contention of a breach of one of the guarantees of the European Convention on Human Rights (ECHR) is plausibly advanced. The next model of compulsory adjudication to be mentioned is that provided for by the UN Law of the Sea Convention where, pursuant to Article 286, the parties have accepted to settle their disputes through one of the channels listed in Article 287. Lastly, it is also a truism to state that the dispute settlement system of the World Trade Organization (WTO) has become a mechanism of ever-growing importance. Apart from these exceptional mechanisms of adjudication, there is no likelihood that the general structure of adjudication may undergo dramatic changes in the coming decades. In conformity with the principle of free choice, States will continue to establish procedures of dispute settlement according to their specific needs. Proposals to introduce a procedure of preliminary rulings, to be issued by the ICJ following the model of Article 234 of the EC Treaty, are doomed from the very outset.41 Quite a number of States are still not prepared to accept the ICJ as the highest instance in matters of international law. On the other hand, as the example of the ECtHR shows with abundant clarity, the ICJ would hardly be able to cope with a considerable additional burden of work. It has already reached the outer limits of what it can shoulder under the given circumstances, given its composition and the groundwork it can rely upon in terms of legal staff and other resources. Institutionally, therefore, the unity of international law is not well safeguarded. B. Unity of Substantive Law? However, as far as substantive law is concerned, international law seems to have embarked on a journey of rising homogeneity, contrary to the fears that were the driving force behind the ILC’s study on fragmentation. It cannot be denied that there is a clear “correlation between norm fragmentation and authority fragmentation.”42 And yet, notwithstanding the lack of institutional unity, some degree of unity ratione materiae can be perceived. For a Cartesian thinker, whose mode of reasoning is premised on the model of the sovereign State, these characteristics may seem to be too modest to really matter. But the international community is the product of a slow process of growth, like the British Constitution, with all the imperfections deriving from that origin. One cannot expect it to be in mathematically perfect shape.

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Convincingly discussed by Tullio Treves, Fragmentation of International Law: The Judicial Perspective, 23 Comunicazioni e Studi 821, 828 et seq. (2007); see also the negative assessment by Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int’l L. 553-79 (2002). Tomer Broude, Fragmentation(s) of International Law: On Normative Integration as Authority Allocation, in The Shifting Allocation of Authority in International Law, supra note 34, at 99, 105.

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1. The Unity of Systemic Features First of all, it should be emphasized once again that the systemic particularities of international law have not changed by comparison with the “good old times” of international law. International law remains a legal system, thought to be binding on States once the general requirements for the emergence of a legal rule, as defined in particular by Article 38 of the Statute of the ICJ, have been fulfilled. Moreover, the close relationship between bindingness and liability in case of non-respect or breach is generally not called into question. Only few voices depart from that majority view. Following the views expounded by Jack L. Goldsmith and Eric A. Posner, international law contains no more than a few lessons of political expediency that can and should be disregarded as soon as the “national interest” establishes other priorities.43 Should that view prevail, it would strike the death bell for international law. Bindingness cannot be proven according to legal reasoning since law must be entrenched in the social conscience of its constituency, something which the Kelsenian school of law has never been willing to acknowledge. On the other hand, however, bindingness is a necessary premise of a legal order. If legal rules were no more than somewhat vague guidelines that could be dismissed by governments according to their free political discretion, they would lose their specific identity as elements of an order which is distinct from the dictates of factual power and might. As an autonomous set of norms for the regulation of social interactions, law would have to be scrapped. It is significant, in this regard, that Third World countries, when they attained their political independence in the second half of the last century, did not reject the international law which they found on their first steps in the international arena. In principle, the observation that international law had originated within the group of European States, could have led to the conclusion that a group of States prevented from participating in the shaping of the present-day legal order, could not be bound by its rules. However, this claim was not pursued, in the awareness that the rules which had evolved for the mutual relationships between sovereign European States were perfectly suitable also for relationships to which the new States were parties.44 What was good for European States could be deemed to be good also for African States. Above all, for them the concept of sovereignty was a precious gift since it gave legal expression to the right of self-determination for which they had been struggling for decades. The combination of sovereignty and equality, as expressed in Article 2 (1) of the UN Charter, proved even more helpful since it put small and weak States on the same level as the powerful and rich States that had dominated the modern world for long periods.45

43 44

45

Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005). See Pierre-Marie Dupuy, Some Reflections on Contemporary International Law and the Appeal to Universal Values, 16 Eur. J. Int’l L. 131, 132 (2005); Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century: General Course on Public International Law, 281 Recueil des cours 37-39 (1999). But see the complaint by the Chinese member of the ILC, Xue Hanquin, that excessive specialization operates to the detriment of Third World countries, which lack experts

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

2. The Growth of International Law As far as the density of international regulation is concerned, it is trivial to state that international law has conquered wide spaces that were thought to be unfit for international regulation a century ago. Not only within the European Union, where according to some voices 80 of domestic legislation is pre-determined by European decisions, but also at the general level of international law the impact of international determinations is tremendous. The first place in the hierarchy of importance can certainly be claimed by human rights. Human rights is a subject-matter which is not confined to the limited number of guarantees listed in the great instruments providing for international protection. Human rights permeate the entire structure of domestic systems, cutting across all sectors of legal regulation, given, in particular, the positive dimension which the practice of the relevant human rights bodies has evolved over the years. One only needs to have a look at the General Comments of the UN Committee on Economic, Social and Cultural Rights on the right to health46 to realize to what great extent a human rights regime may interfere with the national ordering of a given sector of public policies. The second element with far-reaching repercussions in the heartland of national sovereignty is environmental law. If certain climate goals are to be reached, for instance, national strategies in the most diverse fields must be scrutinized and harmonized, going from agriculture and forest management to traffic regulations and town planning.47 In the long run, the requirements of combating climate change may require the transformation of a liberal State into a police State where any private activity is placed under strict supervision. To date, that stage has not been reached, and it may seem extremely doubtful whether it will ever be possible to subject the nations of the world to such a tight discipline. Additionally, legal regimes that formerly were taken to regulate no more than truly international relations of States have become fairly sophisticated sets of rules which, in order to enhance their effectiveness, encompass ancillary activities whose actual location is on national territory. Thus, UNCLOS not only deals with human activities on the seas, but also establishes rules for the prevention, reduction and control of pollution of the marine environment from land-based resources (Article 207). The GATT rules not only specify that trade barriers may not be erected, consisting of tariffs and quantitative restrictions, but also enjoin States not to hamper trade by, for instance, subsidies that distort competition (Article XVI). Likewise, the freedom of States to enforce restrictions on imports for the purpose of protecting public morals or human, animal or plant life or health (Article XX) is allowed only to the extent that such measures are “necessary.” Accordingly, the scope of autonomous national decision-making has considerably shrunk. National legislatures encounter obstacles to their power at every corner.

46 47

in many fields: Fragmented Law or Fragmented Order?, 17 Finnish Y.B. Int’l L. 55, 61 (2006). U.N. Doc. E/C.12/2000/4, Aug. 11, 2000, adopted May 11, 2000. Nele Matz, Wege zur Koordinierung völkerrechtlicher Verträge. Völkervertragsrechtliche und institutionelle Ansätze (2005).

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In sum, international regulation has grown both in quantity and intensity. A tight network of international obligations has been constructed that reaches far into areas that formerly were considered as being essentially domestic in nature. This also means that the vastly extended international regimes, once neatly separated from one another, have moved so close to one another that instances of overlapping and even open conflict have become a fact of life to be reckoned with. This new state of affairs should not cause any panic.48 The qualitative difference that existed between domestic and international law in the “classical” time of international law has almost vanished. Whereas in national legal systems there has always been an awareness of the necessity of coordination, such coordination was not deemed to be needed in the early stages of international law. On the one hand, customary law seemed to be immunized against providing for conflicting rules through its process of emergence: State practice can never go into two opposite directions at the same time, and treaty law normally established only sectoral rules that had no legal connection with one another. In our time, by contrast, the quantitative growth ratione materiae has brought international law close to the situation to be found in any other legal order where possible conflicts are sought to be avoided by the concepts of coordination and hierarchy. C. Constitutional Unity 1. Article 103 of the UN Charter Whereas classical international law lacked a hierarchical categorization of its norms, such categorization has come into being in the post-1945 epoch. It may well be true that this “constitutionalization” process is still in its infant stage. But a hierarchy has emerged.49 It can be identified by indicating specific rules that are part of positive international law. Accordingly, when talking about norms of higher and lower rank, one does not deal with purely academic constructions. First of all, Article 103 of the UN Charter must be mentioned. Pursuant to that provision: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

As has been rightly observed by commentators, Article 103 does not provide for the nullity of a treaty commitment that comes into conflict with an obligation under the Charter, but confines itself to directing that such conflict must be resolved in favor of the latter obligation. Hence, in an actual conflict situation, where the addressee is faced with two contradictory orders, the obligation existing under the Charter must 48

49

See Isabelle Van Damme, ILC Study Group Report on the Fragmentation of International Law: WTO Treaty Interpretation against the Background of Other International Law, 17 Finnish Y.B. Int’l L. 21, 23 (2006). Pulkowski, supra note 39, at 67-72, calls it “the hierarchical paradigm.”

18 Christian Tomuschat, International Law as a Coherent System: Unity or Fragmentation?

prevail. The authority charged with finding the law is bound to prefer that latter obligation. Notwithstanding the lack of nullity, the practical effect is hardly any less substantial. Rightly, therefore, the Koskenniemi Report has underlined the importance of Article 103 as a legal device securing the unity of international law.50 Article 103 does not refer exclusively to the Charter itself, but to “obligations … under the present Charter.” This means that secondary acts of the United Nations organs, to the extent that they are endowed with binding effect, also partake of the primacy determined by that provision. In the Lockerbie case, the ICJ has acknowledged that resolutions of the Security Council under Chapter VII of the Charter enjoy such precedence.51 Although international peace and security, the requirements that must be fulfilled for action under Chapter VII, encompass only a small sector of international relations, one should not overlook the tendency of the Security Council to interpret those two criteria in an expansive manner. On the whole, Article 103 lends itself to classification as a constitutional principle of the international community. Currently, almost all States of the world are members of the United Nations. Accordingly, they have accepted Article 103. Ratione materiae, the Charter contains an astounding wealth of principles and rules. A perusal of Articles 1 and 2 together with the Preamble permits the conclusion that the United Nations is authorized to act in all fields of life that are in any manner whatsoever of international concern. Thus, its jurisdiction has almost no limits. Long gone are the days when individual members complained that a specific item should not have been placed on the agenda of the General Assembly inasmuch as it touched upon their domestic matters. Rightly, the General Assembly has taken the view that it is the authoritative arbiter for tracing the boundary line between matters of domestic jurisdiction and matters of international concern, notwithstanding all the learned commentaries on the exact definition of that line.52 The only obstacle impeding Article 103 from taking full effect is the lack of determinacy of many of the clauses of the Charter. Generally, the Charter enjoins member States to cooperate with one another. Generally, this command requires further concretization. But many clauses do not presuppose any particularization for becoming applicable to a dispute at hand. There is general agreement to the effect that in particular most of the principles listed in Article 2 are suitable for direct application, the principle of sovereign equality (Article 2(1)) and non-use of force (Article 2(4)) taking the top position in that regard. Since Article 2 embraces the basic axioms of the present-day international legal order, it may be characterized as a “mini-constitution” of the international community. To date, the unifying force of Article 103 has only rarely been noted in international practice. Some examples are given in the Koskenniemi Report. In the Nica50 51 52

Koskenniemi Report, supra note 1, at 166-81, paras. 324-360. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.K.), 1992 I.C.J. 3, 15 para. 39 (Apr. 14). See the masterful exegesis by Gaetano Arangio-Ruiz, Le domaine réservé. L’organisation internationale et le rapport entre droit international et droit interne, 225 Recueil des Cours (1990-VI).

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ragua case, the ICJ emphasized that any regional arrangement under Chapter VIII of the Charter remains subject to Article 103,53 and in the Lockerbie case it rejected Libya’s contention that it had, under the Montreal Convention of 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the sovereign right to try, under its own responsibility, any person charged with committing crimes against an aircraft. In a short sentence, the Court observed that pursuant to Article 103 “the obligations of the Parties … prevail over their obligations under any other international agreement.”54 In a limited a number of its resolutions, the Security Council has also explicitly drawn the attention of member States to the binding character of its enactments. This, however, is obviously not necessary since any resolution adopted under Chapter VII acquires its intrinsic force from the legal foundation on which it is based, irrespective of whether the Security Council has explicitly stressed this particular character or not. It need not be underlined that the superior legal force conferred by Article 103 should never be used as a pretext in order to set aside other legal obligations. In its judgment in Al-Jedda,55 the House of Lords interpreted Security Council Resolution 1546 (2004) in a rather bold way as requiring a person arrested in Iraq to be held under detention without charge or trial. Although in a letter annexed to that resolution (by Secretary of State Colin L. Powell) the word “internment” had been used,56 no argument whatsoever could be found that would have indicated that specifically AlJedda should be held under conditions incompatible with Article 5 of the ECHR. The only concern of the Security Council was to provide a basis for measures designed to ensure public order. By no means, however, did the Security Council require that this must be done in a way susceptible of contravening existing international obligations. It is painful to see the highest judges of a country resort to such an arbitrary construction.57 In any event, however, Al-Jedda is an isolated case. In general, it would appear that Article 103 constitutes one of the basic pillars of the edifice of modern international law. A framework has been set within which any international activity of States is confined. In particular, on the basis of Article 2(4) the principle of international peace has become an unassailable component of the international legal order. Although to date little use has been made of Article 103, this does not detract from the fact that the potential of the provision is enormous, provided that the General Assembly and

53 54 55 56 57

Military and Paramilitary Activities (Nicar. v. U.S.), 1984 I.C.J. 392, 440, para. 107 (Nov. 26). Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.K.), 1992 I.C.J. 3, 15, para. 39 (Apr. 14). [2007] UKHL 58. The letter of June 5, 2004 mentioned “internment where this is necessary for imperative reasons of security.” For a comment, see Christian Tomuschat, Al-Jeddah v Secretary of State for Defence. Human Rights in a Multi-Level System of Governance and the Internment of Suspected Terrorists, 9 Melbourne J. Int’l L. 391-404 (2008).

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the Security Council succeed in activating its substance through consensual methods. 2. Jus Cogens Jus cogens is the second one of the devices that have provided a constitutional background to international law. Jus cogens had made its appearance in academic writings already during the nineteenth century. Above, reference was made, for example, to Heffter’s thesis that slavery treaties could never be validly concluded under international law.58 In the first half of the twentieth century, Alfred Verdross was the main advocate of jus cogens.59 It took many decades, however, before jus cogens was generally recognized as a concept of universal applicability. Only with great difficulties did the Vienna Diplomatic Conference of 1969 adopt the provisions on jus cogens in Articles 53 and 64 of the draft that would become the Vienna Convention on the Law of Treaties (VCLT).60 The decisive breakthrough, however, was not achieved at that point in time. Quite a number of countries opposed the VCLT precisely because it had recognized jus cogens as a rule of positive law.61 France was the leader of that group of opponents. To this very date, it has shied away from ratifying the VCLT, and so has the United States, while China and the Russian Federation have become parties to it. Accordingly, there remain some subtle doubts regarding the concept as such. However, international tribunals have cast overboard any reservations they had (may have) entertained originally. The International Criminal Tribunal for the Former Yugoslavia (ICTY) embraced jus cogens in its Furundzija decision,62 and the European Court of First Instance based its judgments in the famous Kadi case, where orders freezing the assets of persons charged with terrorist activists or supporting such activities had to be assessed, entirely on the concept of jus cogens which, it held, restricted also the powers of the Security Council.63 This line of reasoning is in full accord with the prevailing opinion that sanctions imposed by the Security Council must comply with general standards of human rights law and humanitarian law.64 58 59 60 61

62 63 64

See also Bluntschli, supra note 13, at 21 (“Slavery contradicts the law of human nature and the sense of commonality of humankind.”). Alfred Verdross, Forbidden Treaties in International Law, 31 Am. J. Int’l L. 571 et seq. (1937). 1155 U.N.T.S. 331. The French position at the Vienna Conference is analyzed by Deleaux, Les positions françaises à la conférence de Vienne sur le droit des traités, 14 Annuaire français de droit international 7, 14-20 (1969); Hélène Ruiz Fabri, La France et la Convention de Vienne sur le droit des traités : Éléments de réflexion pour une éventuelle ratification, in La France et le droit international 137, 139-41 (Gérard Cahin et al. eds., 2007). Prosecutor v. Anto Furundžija, Case No. IT-95-17/1, at 58, para. 153 (Dec. 10, 1998). Case T-315/01, Kadi (Sept. 21, 2005). W. Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int’l. L. 86-141 (1998); Christian Tomuschat, Human Rights: Between Idealism and Realism 101 (2d ed. 2008).

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Unreserved praise for jus cogens was also given by the Inter-American Court of Human Rights.65 The redeeming word was eventually spoken by the ICJ when, in 2006 after many years of hesitation where as a replacement the concept of “intransgressible principles of international law” had been coined,66 it acknowledged that some core principles of international law deserve classification as jus cogens.67 Given this state of affairs, it would seem that French and U.S. resistance to jus cogens cannot be maintained much longer. Essentially, the French attitude had been prompted by the idea that jus cogens might be launched as a legal weapon to undermine France’s reliance on nuclear arms for defence purposes. Eventually, France seems to have gained the insight that the battle, if any, has to be fought on another front.68 In any event, jus cogens is not really called into question at the present juncture. The Koskenniemi Report, for instance, takes it as a normal ingredient of today’s international legal order.69 In legal doctrine, critical voices have disappeared. On the contrary, one must be afraid that the enthusiasm for jus cogens goes too far, trying to unfold it in a beautiful new world where no established rule can stop its advance—as if the existing rules and mechanisms were just the product of whims and fancies, inattentive to basic human needs.70 Many times, advocates of a broad understanding of jus cogens commit the mistake of not distinguishing between the primary rules, which aim to avert evil and injurious occurrences, and the secondary rules that fall to be applied in case a jus cogens rule has been breached.71 Whereas any conceivable effort must be made to prevent the commission of a crime that amounts to a breach of a jus cogens rule, many arguments have to be carefully weighed in order to find out what legal consequences should flow from a breach that has actually happened. Is there an obligation to put the responsible perpetrators on trial? Should the responsible State owe punitive damages? Do third States have an obligation to provide a civil forum to persons who wish to pursue reparation claims against a wrong-doing 65 66 67

68 69

70 71

Inter-Am. Ct. H.R., Advisory Opinion OC-18-03, Juridical Condition and Rights of the Undocumented Migrants, paras. 98-101 (Sept. 17, 2003). ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 I.C.J. 226, 257, para. 79 (July 8). Armed Activities on the Territory of the Congo (New Application: 2002), para. 64 (Feb. 3, 2006); reconfirmed in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), para. 147 (Feb. 26, 2007). See Ruiz Fabri, supra note 61, at 137-50. Koskenniemi Report, supra note 1, at 181-92, paras. 361-379. Individually, however, Koskenniemi had shortly earlier ridiculed jus cogens as “kitsch.” Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 Eur. J. Int’l. L. 113, 122 (2005). For an illustrative example of that tendency, see Alexander Orakhelashvili, Peremptory Norms in International Law (2006). For a full exposition of that argument, see Christian Tomuschat, L’immunité des Etats en cas de violations graves des droits de l’homme, 109 Revue générale de droit international public 51-74 (2005).

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State? Should a wrong-doing State be disallowed to invoke its sovereign immunity? All these are questions which require careful consideration72 and which cannot be brushed aside by pointing to the nature of the wrong in issue as a breach of a jus cogens rule.73 It is significant that more often than not these wider issues are not even taken into consideration by the proponents of a jus cogens assault on the concepts and institutions which, like the sovereign immunity of States, protect a wide range of interests of the international community and are simply misrepresented as devices whose only object it is to permit a wrongdoing State to escape accountability. In particular, it would be highly problematic to impose on States an obligation to provide a forum for suits against a foreign State brought by individuals claiming to be a victim of jus cogens violations.74 In any event, however, it is clear by now that the concept of jus cogens has left the narrow confines of a parameter suited only to assess the validity of treaties. In accordance with a broader understanding that has gained wide ground, jus cogens rules designate conduct that is deemed to be impermissible under any circumstances, in whatever form it may be put into operation. The making of treaties, the issuance of unilateral legal acts, the performance of factual acts—whenever such conduct conflicts with a rule of jus cogens it cannot produce any valid legal effects. An instructive example illustrating the actual scope of jus cogens is provided by the German reunification. In 1999, the Four Victorious Allied Powers of World War II still clung to the rights which they had assumed in June 1945 after the defeat of Nazi Germany.75 They considered that, even more than 50 years later, issues of reunification were still under their jurisdiction. However, it was far from certain that those rights could be opposed to the wish of the German people to reunite peacefully. Generally, the right of self-determination is recognized as pertaining to the class of jus cogens, and the wish to reunite emanated from that right. In 1945, the assumption of supreme power with regard to Germany was justified by the criminal character of the Nazi regime. World peace had to be secured. However, the two German States were admitted to the United Nations in 1973, being both recognized as “peace-loving.” Therefore, no valid reasons could be held against the realization of their common project. Fortunately, the Four Powers agreed voluntarily to renounce their occupation powers. A hard test regarding the real substance of self-determination could thus be avoided. 72

73 74 75

An analysis of those issues can be found in The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Christian Tomuschat & Jean-Marc Thouvenin eds., 2006). Unpersuasive is the reasoning by Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 Eur. Rev. Int’l L. 491, 501 (2008). Eur. Ct. H.R., Al-Adsani v. U.K., App. No. 35763/97 (Nov. 21, 2001). Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic (June 5, 1945), available at http://avalon.law.yale.edu/wwii/ger01. asp.

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At the end of this short review of jus cogens, we may note that together with Article 103 of the Charter it has introduced an essential new component into international law. Where formerly individual philosophers were free to speculate about the moral foundations of international law, not committing anyone else than themselves, the international legal order has by now been provided with firm underpinnings which stem from that same ground, but which are now acknowledged as true legal principles. No State can claim that, choosing outsider freedom, it can untie itself from the legal bonds of the international community. The traditional loose assemblage of individual States, the “anarchical society,”76 has opted for a constitutional groundwork that aims to aims to keep peace and basic human rights, and has thereby transformed itself into a legally constituted international community sharing common values—at least to a minimum extent. This is the opposite of fragmentation. Unfortunately, the scope ratione materiae of jus cogens has never been accurately defined. It was already pointed out that for some writers jus cogens overwhelms all of the established legal categories of the past. In a debate at the Finnish Society of International Law in 2006 Christine Chinkin defended the idea that jus cogens should be used as a tool to promote the interests of marginalized groups.77 In particular, she lamented the fact that hitherto the idea of gender equality had not been relied upon with a view to making further headway in the effort to establish equality between men and women. Sharpening her criticism, she argued that the substantive hierarchy was biased, and by “failing to label certain values as underpinning peremptory norms” the lesser status of the marginal groups found itself legitimated.78 In a rebuttal, Alain Pellet rightly observed that jus cogens should not and cannot be conceived of as a tool of dynamic change. Like all other norms of international law, it is subject to the general rules of law-making.79 Jus cogens cannot be produced like a treaty, but has to grow in accordance with the requirements of crystallization of custom on the basis of custom and opinio juris. There is no need to go into the problem of effectiveness, which opens up a vast field. In any event, one should not believe that effectiveness can be measured by the number of judicial pronouncements which explicitly mention the word jus cogens. Most importantly, jus cogens has a preventive effect. Thus, today, no government would have the audacity of authorizing the expulsion of twelve million people from their ancestral homes as did the Allied Powers in 1945 through the Potsdam Agreement, under the impression of the unspeakable atrocities perpetrated by the German armed forces in Eastern Europe. After the Iraqi invasion of Kuwait had been repulsed,

76 77 78 79

Hedley Bull, The Anarchical Society: A Study of Order in World Politics (3d ed. 2002). Christine Chinkin, Jus Cogens, Article 103 of the UN Charter and Other Hierarchical Techniques of Conflict Solution, 17 Finnish Y.B. Int’l L. 63 et seq. (2006). Id. at 69. Alain Pellet, Comments in Response to Christine Chinkin and in Defense of Jus Cogens as the Best Bastion against the Excesses of Fragmentation, 17 Finnish Y.B. Int’l L. 83-90 (2006).

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the Security Council deliberately refrained from imposing a new boundary line on the aggressor State, requiring only a new demarcation of the existing boundary.80 The concept of unity of international law is completed by the assumption, explicitly articulated in the Kadi judgment of the European Court of First Instance,81 that the Security Council, too, is bound by jus cogens. Logic militates in favor of that conclusion since the Security Council is mandated to act “in accordance with the Purposes and Principles of the United Nations” (Article 24(2) of the Charter) and since the Charter is nothing else than a multilateral treaty, hence subject to the general rules governing the legal status of treaties. On the other hand, the question of quis judicabit arises by necessity. Under the Charter, no legal review of resolutions of the Security Council is provided for. This deliberate omission of the framers would be rendered nugatory if any court of any member State could review the compatibility of Security Council resolutions with standards of jus cogens, which means: standards which some judge believes to form part of jus cogens. This is the less comforting side of the audacious decision in the Kadi case. 3. Obligations Erga Omnes No new aspects regarding the issue of unity of international law emerge from a closer look at obligations erga omnes. The concept of jus cogens includes all the relevant aspects: International transactions of States must not hurt the basic values of the international community. That is also the point of departure for the doctrine of obligations erga omnes, as can be gleaned from the Barcelona Traction judgment of 1970.82 Some violations of international law, because of their seriousness, entitle third States not directly affected to bring reparation claims against a wrongdoing State. Thus, an erga omnes entitlement, now codified by the ILC in Article 48 of its set of rules on the responsibility of States for internationally wrongful acts (hereinafter: ILC Articles),83 is the result of a secondary rule. For the purposes of the present inquiry it suffices to note that as of now international law comprises a number of primary rules whose impact can be found in all legal fields, with various consequences, one of them being that third States have been elevated to the rank of guardians of international legality. 4. Human Rights It stands to reason that not all human rights can aspire to the rank of jus cogens. This is true of conventional human rights regimes—one may think of freedom of expression, for example—but also of human rights founded on customary law. The right of access to a court in criminal cases as well as for the defence of civil rights (or in a suit at law, which is the language of the ICCPR), has certainly become a customary rule, over and beyond its entrenchment in the universal and regional human rights treaties, but lacks the imperative, absolute nature which characterizes a jus cogens norm. 80 81 82 83

S.C. Res. 687, para. 3, U.N. Doc. S/RES 687 (Apr. 3, 1991). Supra note 63. Barcelona Traction, Light and Power Company, 1970 I.C.J. 3, 32, paras. 33, 34 (Feb. 5). Taken note of by General Assembly Resolution 56/83 (Dec. 12, 2001).

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In this regard, the Kadi judgment has not erred. The international community does not suffer grave and irreparable harm if, for some legitimate reason and to a limited extent, individuals are denied access to a judicial procedure in matters of civil law. However, all human rights, irrespective of their formal rank in a hierarchy of sources, belong to the constitutional background against which any rights and obligations under international law must be viewed.84 By accepting a comprehensive human rights treaty, a State accepts at the same time the proposition that its actions must at all times remain in conformity with the obligations flowing from that treaty. Hence, it is under an obligation to reconcile its specific obligations with that general constitutional background. This obligation does not have the same razor-sharp effectiveness as a rule of jus cogens. But it is a general principle of international law that concurrent obligations should be harmonized to the greatest extent possible.85 We do not overlook the fact that outside the narrow circle of jus cogens, which by definition binds all States, major divergence exists as to the further human rights that have become part and parcel of the common heritage of humankind. It is impossible to range all the guarantees listed in the two Covenants of 1966 into that category. The Covenants have not been ratified by all countries, and some of the rights are not supported on a world-wide scale. One cannot deny, for example, that most Muslim countries do not share the belief in equal rights of men and women. But core elements of human dignity cannot be left to “national and regional particularities and various historical, cultural and religious backgrounds,” as suggested by the World Summit Outcome in 2005.86 Genital mutilation of young women and denial of school attendance for girls, for example, constitute unjustifiable encroachments in any circumstances, and the right to life can in no way be relativized by local customs. D. Inter-Systemic Connections in Practice Article 31(3)(c) of the VCLT, a provision largely overlooked in the first years after the entry into force of the Convention, gives explicit expression to the idea of harmonization within the entire system of international law. With regard to the interpretation of treaties, it directs the interpreter to “take into account,” together with the context, “any relevant rules of international law applicable in the relations between the parties.” In the Oil Platforms case,87 this rule obtained all of a sudden wide notoriety when the ICJ ruled that in the interpretation of the treaty regime existing between Iran and the United States, the principle of non-use of force required being consid-

84

85 86 87

Stephen Gardbaum, Human Rights as International Constitutional Rights, 19 Eur. J. Int’l L. 749-68 (2008); Antonio Pastor Ridruejo, Droit international et droit international des droits de l’homme, Unité ou fragmentation?, in Human Rights, Democracy and the Rule of Law: Liber amicorum Luzius Wildhaber 537, 549 (Stephan Breitenmoser et al. eds., 2007). Koskenniemi Report, supra note 1, at 25-28, paras. 37-43. General Assembly Resolution 60/1, para. 121 (Sept. 16, 2005). Oil Platforms (Iran v. U.S.), 42 I.L.M. 1334, 1352, para. 41 (Nov. 6, 2003).

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ered. Article 31(3)(c) has been cogently analyzed in the Koskenniemi report,88 and it has emerged that some pivotal questions remain unresolved, namely among whom the relevant rules must be applicable and what the relevant point in time is, the moment of the conclusion of the treaty concerned or the moment of its application, when an actual problem of interpretation must be resolved. And yet, no matter how arduous the task of a correct interpretation may prove to be, the fact is that Article 31(3)(c) encapsulates the axiom of the unity of the international legal order. Treaties do not stand in a vacuum, but are part of a comprehensive system within which they have to be interpreted and implemented. The expression “systemic integration” reflects in a felicitous way the accord sought not only with regard to the interpretation of treaties, but in the application of any rule of international law.89 Obviously, going beyond the scope proper of a specific treaty regime encounters different degrees of difficulties. No disagreement whatsoever exists as to the necessity to have recourse to the general rules of interpretation as they are reflected in the VCLT. Not only does the ICJ follow the orientations indicated by the VCLT, all the other specialized bodies follow suit. In fact, to what other rules on interpretation should they turn instead? One of the most prominent pronouncements is the very first Report of the Appellate Body under the dispute settlement system of the WTO which, in referring for interpretive purposes to the VCLT, stated that the GATT “is not to be read in clinical isolation from public international law.”90 Under the ICSID system, in the same way a common understanding has emerged to the effect that general international law as codified in the VCLT provides the relevant parameters of interpretation.91 As a matter of routine, the Human Rights Committee under the International Covenant on Civil and Political Rights (HRCee) bases its construction of the Covenant on the rules set out in the VCLT.92 The regional human rights courts

88 89

90

91

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Supra note 1, at 206-244, paras. 410-480. See also Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 279-319 (2005); Van Damme, supra note 48, at 21-38. United States—Standards for Reformulated and Conventional Gasoline (Apr. 29, 1996), AB-1996-1, 35 I.L.M. 603, 621 (1996). Article 3(2) of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes explicitly refers to the “customary rules of interpretation of public international law.” See, e.g., AMCO v. Indonesia, ICSID Case No. ARB/81/1 (Sept. 25, 1983), 23 I.L.M. 351, 359 (1983); Azurix v. Argentine Republic, ICSID Case No. ARB/01/12 (July 14, 2006), para. 307. Human Rights Committee, Alberta Union of Provincial Employees v. Canada, Communication 118/1982 (July 18, 1986), 2 Selected Decisions under the Optional Protocol 34 (1982-1988), para. 6.3; General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 4 (Mar. 29, 2004).

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have also embraced the VCLT. The European Court of Human Rights acknowledges its authority93 as well as the Inter-American Court of Human Rights.94 It is infinitely more problematic to apply other crucial concepts of the VCLT or of the ILC Articles on State Responsibility notwithstanding the fact that they may be counted among the systemic components of the international legal order. However, in this regard, too, a rich practice has emerged also in specialized fields. The clausula rebus sic stantibus, codified in Article 62 of the VCLT, was applied by the Court of Justice of the European Communities in Racke.95 By no means did it opine that because of the specificity of the European legal order that clause allowing the termination of a treaty relationship could not be invoked within the European Community context. Another issue widely discussed in legal doctrine is whether the ILC Articles on State Responsibility apply in any circumstances. There can be no doubt that States are free to establish, under a treaty regime, their own rules on international responsibility by leaving the general scheme as it has been codified by the ILC. Thus, for instance, the dispute settlement scheme of the WTO restricts quite considerably the general faculty of States to take countermeasures in case of a breach of the obligations owed to them. But the main question is whether the ILC Articles, as a codification of customary law, may automatically be relied upon as a fall-back position if the treaty concerned remains silent about the applicable secondary rules. Article 55 of the ILC Articles leaves the door wide open for the establishment of special regimes. Bruno Simma has rightly cautioned against light-handed assumptions about the existence of self-contained regimes, a popular catchword after the judgment of the ICJ in the Tehran case.96 It is now almost unanimously accepted that, after the special mechanisms of a self-contained regime have proven to be abortive, the aggrieved party seeking redress for the injury it has suffered may as ultima ratio invoke the general rules on State responsibility by resorting to countermeasures. Otherwise, however, the ILC Draft Articles are generally considered as encapsulating the legal regime which extends to all sectors of international relations, especially with regard to the origin of international responsibility.97

93 94 95 96

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Eur. Ct. H.R., Mamatkulov & Askarov v. Turkey, Applications No. 46827/99 & 46951/99, para. 111 (Feb. 4, 2005). Inter-Am. Ct. H.R., Advisory Opinion OC-1/82, “Other treaties” subject to the advisory jurisdiction of the Court, paras. 33, 45 (Sept. 24, 1982). Case C-162/96, paras. 48-57 (June 16, 1998). Bruno Simma, Self-Contained Regimes, 16 Neth. Y.B. Int’l L. 111 (1985); Bruno Simma & Dirk Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, 17 Eur. J. Int’l L. 483, 490-523 (2006); see also Isabelle Buffard, Une relecture de la théorie des sous-systèmes en droit international, in International Law Between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner 13 (2008). See, in particular, Biwater Gauff v. Tanzania, ICSID Case No. ARB/05/22 (July 24, 2008), paras. 466, 479-484.

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In the practice of the Strasburg Court of Human Rights, the immunity of States or international organizations has more than once proved to come into play by ricochet, when a State party refused the (alleged) victim of a human rights violation by a State outside Europe a forum for the vindication of claims it meant to have against the wrongdoing State. Under Article 6 of the ECHR, everybody has a right of access to a court with a view to pursuing a civil right. Obviously, this right cannot be denied on arbitrary and whimsical grounds. The ECtHR had first to assess whether it could be legitimate to deny staff of an international organization established in Germany (European Space Agency, ESA) access to German courts, given stipulations to that effect in the ESA Convention. In Waite and Kennedy v. Germany it acknowledged the justifiability of the German attitude since Germany had no other intention than to comply with its international obligations vis-à-vis the organization concerned.98 Additionally, the ECtHR took into account the fact that the applicants were offered a suitable alternative remedy through arbitration. In McElhinney 99 and Al-Adsani,100 it confirmed State immunity, although such an alternative did not exist. In Al-Adsani the applicant had wished to bring a suit before British courts against the State of Kuwait and high-ranking members of the Government of that country, based on allegations of torture. The minority of the judges, who issued a strong dissenting vote, erred manifestly in stating that a conflict between a rule of jus cogens and an “ordinary” rule of international law was before them. The only rule of jus cogens is the prohibition of torture, the primary rule; secondary rules determining the remedies available to jus cogens victims do not belong to the realm of jus cogens. In the practice of the ICSID panels, the applicability of Article 25 of the ILC Articles on State responsibility proved to be another bone of contention in recent years. Many claims had been brought against Argentina because of its decision, taken in 2002, to permit debtors to pay back their dollar obligations in Argentinean pesos (“pesificación”) although the peso-dollar exchange peg of one-to-one was abrogated. ICSID panels were faced with the question as to whether the “pesificación” was justified by the intention of the government to avert a final breakdown of the Argentinean economy. Whether the economic calamity had reached such catastrophic dimensions as to justify recourse to Article 25 was judged in a contradictory fashion by two panels. While in CMS v. Argentine Republic the panel found that Argentina’s crisis did not come within the ambit of Article 25,101 a later panel in LG&E v. Argentine Republic came to the opposite conclusion.102 One of the central issues in these proceed98

Eur. Ct. H.R., Waite & Kennedy v. Germany, App. No. 26083/94, paras. 67-72 (Feb. 18, 1999). 99 Eur. Ct. H.R., McElhinney v. Ireland, App. 31253/96, para. 37 (Nov. 21, 2001). 100 Eur. Ct. H.R., Al-Adsani v. U.K., App. No. 35763/97, para. 61 (Nov. 21, 2001). 101 ICSID Case No. ARB/01/8 (May 12, 2005), 44 I.L.M. 1205 (2005). 102 ICSID Case No. ARB/02/1 (Oct. 3, 2006), 46 I.L.M. 36 (2007) (with an introduction by August Reinisch). Strangely enough, the Tribunal in Enron v. Argentine Republic, ICSID Case No. ARB/01/3 (May 22, 2007), based its findings on the position taken by the arbitrators in the CMS case without even mentioning the LG&E case although one of the arbitrators participated in both proceedings.

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ings was the question whether Article 25 could be resorted to alongside the relevant clause in the applicable investment treaty or whether Article 25 was displaced by that clause. An Ad Hoc Committee on the Application for Annulment established after Argentina had applied for annulment found that indeed the first panel had erred in basing its decision primarily on Article 25.103 In principle, however, the parties were in agreement that, if no derogation from the common standard had been agreed upon, Article 25 provided a yardstick that could be relied upon. In this connection, it should also be stressed that the administrative tribunals of international organizations, established in order to secure their autonomy vis-à-vis their members and especially vis-à-vis the relevant host countries, have evolved a practice of referring to one another with regard to common issues of the international civil service. In strictly legal terms, the Administrative Tribunal of the African Development Bank has nothing to do with the Administrative Tribunal of the United Nations (UNAT), the Administrative Tribunal of the International Labour Organization (ILOAT) or the Administrative Tribunal of the Inter-American Development Bank (IADBAT). However, all these tribunals feel that the law of the international civil service should not disintegrate into different islands of separate identity. In that endeavour, they are greatly helped by the admirable monograph of Amerasinghe104 which was able to collect the case law of the international administrative tribunals, synthesizing that rich material to give it a uniform content and structure.105 Numerous other examples evidence the simple truth that the competent lawapplying agencies do not lose sight of the general framework within which they are moving. Thus, for instance, the Inter-American Court of Human Rights, at its initial stage, regularly referred to the ECHR and to the case law of its Strasbourg counterpart—until it had to note that the European body did not bother much to respond to the views of its new partner.106 Currently, reference to European judgments has become a scarce commodity. In defence of the Strasbourg judges it may certainly be said that their huge burden of work prevented them from taking up the arguments from the other side of the Atlantic. In any event, however, it must be lamented that the initial efforts to initiate a dialogue were stalled after a few years. A fine example of disconnected action moving in the same direction by taking inspiration from the case law of other similar bodies can be found in the jurisprudential developments concerning the binding force of interim measures. It is significant 103 CMS v. Argentine Republic, ICSID Case No. ARB/01/8, 46 I.L.M. 1136 (Sept. 25, 2007). 104 Chittharanjan Felix Amerasinghe, The Law of the International Civil Service (2d ed. 1994). 105 Obviously, an updated third edition of that book would be urgently required. 106 See, e.g., Advisory Opinion OC-1/82, “Other treaties” subject to the consultative jurisdiction of the Court, para. 16 (Sept. 24, 1982); Advisory Opinion OC-2/82, The effect of reservations on the entry into force of the American Convention on Human Rights, para. 29 (Sept. 24, 1982); Advisory Opinion OC-4/84, Proposed amendments to the naturalization provision of the Constitution of Costa Rica, paras. 12, 56 (Jan. 19, 1984); Advisory Opinion OC-5/85, Compulsory membership in an association prescribed by law for the practice of journalism, paras. 43, 44 (Nov. 13, 1985).

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that the least powerful body, the Human Rights Committee, took the lead in stating that its requests for interim measures under Rule 86 of its Rules of Procedure were provided with binding authority. In Dante Piandiong and Others v. The Philippines, it held that it was incompatible with the obligations of States under the Optional Protocol “to take any action that would prevent or frustrate the Committee in its consideration and examination” of a communication107—a fairly audacious statement, given that the final views of the Human Rights Committee on individual communications lack binding force. A few months later, the ICJ overcame the scruples it had entertained for decades by determining that the “indication” of provisional measures under Article 41 of its Statute engendered truly binding international obligations.108 The courage of these two bodies inspired the European Court of Human Rights to follow suit. In Mamatkulov & Askarov v. Turkey it ignored the weakness of the legal foundations on which to indicate interim measures—Rules of the Court (Rule 39) brought into force by the Court alone, without any requirement of consent by the member States of the Council of Europe—by following the rationale expounded by the Human Rights Committee, concluding that indeed such interim measures were a source of binding obligations.109 The most illustrative examples are provided by cases where human rights, which do not belong to the classical “general part” of international law, have been taken into account by international adjudicatory bodies. The first case to be mentioned in this connection is a case which has not yet been discussed in the legal literature on the topic of fragmentation. It stems from the jurisprudence of the Administrative Tribunal of the African Development Bank (ADB). In the case of J.N.N., where the judgment was handed down on July 19, 2002, the Tribunal was faced with a general release which the applicant had signed when he received a termination allowance on his dismissal from the ADB. Pursuing remedies against this dismissal, he was confronted with the terms of that release according to which “I release and forever discharge the ADB from all actions, proceedings, claims and demands that I might otherwise have … .” The Respondent argued that the action was foreclosed. The Tribunal, however, did not accept that contention. It held: The right to defend his/her right is granted to every member of the staff of the Bank by virtue of Article II.1 of the Statute of the Tribunal. This provision reflects Article 8 of the Universal Declaration of Human Rights and Article 14 (1) of the International Covenant on Civil and Political right pursuant to which everyone has a right to a judicial proceeding when a binding determination is to be made on his/her civil rights. Access to judicial protection belongs to the core rights of every human person.

107 HRCee, 7 Selected Decisions under the Optional Protocol 133, 135 para. 5.1 (Oct. 19, 2000). 108 LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466, 501-6, paras. 98-109 (June 27). 109 Applications Nos. 46827/99 & 46951/99, paras. 99-128 (Feb. 4, 2005).

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Consequently, construction of a waiver clause under which a (former) staff member of the Bank renounces his/her right to defend any claims he/she may believe to have against the Bank must proceed with the greatest caution.110

Human rights have also influenced the case law of the WTO bodies. It is true that the treaties assembled under the roof of the WTO do not directly pursue human rights objectives. But they are not out of touch with the prevailing philosophy of the international community. Their primary aim to promote international trade is meant to contribute to “raising standards of living, ensuring full employment and a large and steadily growing volume of real income,” which is perfectly in line with the International Covenant on Economic, Social and Cultural Rights. Because of its origins in the forties of the last century, GATT, the main one of the WTO-covered treaties, is rather parsimonious with references to human rights. Yet, to some extent, Article XX permits the entry of human rights concerns into the realm of trade law in that reference is made to “public morals” (paragraph a) as well as to “human health” (paragraph b). The Asbestos case is one of the main examples evincing the importance which the Appellate Body attaches to safeguarding human health, concluding that the ban imposed by France on the import of asbestos and products containing asbestos was in conformity with the EC’s obligations under GATT.111 Although the right to life or the individual right to health are not mentioned explicitly, they clearly constitute the background of the findings of the Appellate Body. In legal writings about the WTO, it is hotly disputed whether the dispute-settlement bodies are authorized to reach beyond the scope ratione materiae proper of the different covered treaties, in order to take account of legal norms that protect commonly shared values of the international community.112 In any event, it would certainly not be correct to state that they are not prepared to listen to such arguments which, since amicus curiae briefs are generously admitted,113 come to their knowledge in quantitatively big numbers.114 The sole fact 110 Af. Development Bank, Admin Trib., Judgments, Vol. 2 (2002-2006), at 11, 21-22, paras. 42-43. 111 WTO Appellate Body, Report on Measures Affecting Asbestos and Asbestos Containing Products, AB-2000-11 (March 12, 2001), 40 I.L.M. 1193, 1224 et seq., paras. 157 et seq. 112 For a wide mandate of jurisdiction, see, in particular, Ernst-Ulrich Petersmann, Human Rights, International Economic Law and “Constitutional Justice,” 19 Eur. J. Int’l L. 76998 (2008) (if we understand him correctly; indeed, his article has given rise to a harsh reply by Robert Howse, 19 Eur. J. Int’l L. 945-53, and a rejoinder by Petersmann, id., at 955-60). Opposing this view are Boyan Konstantinov, Human Rights and the WTO: Are They Really Oil and Water?, 43 J. World Trade L. 317, 337; and Gabrielle Marceau, WTO Dispute Settlement and Human Rights, 13 Eur. J.Int’l L. 753-814 (2002). For a cautious approach, see Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, 95 Am. J. Int’l L. 535, 551-52 (2001). 113 WTO Appellate Body, Report on Import Prohibition of Certain Shrimp and Shrimp Products, AB-1998-4 (Oct. 12, 1998), 38 I.L.M. 121 (1999). 114 See also Francesco Francioni, WTO Law in Context: the Integration of International Human Rights and Environmental Law in the Dispute Settlement Process, in The WTO at Ten : The Contribution of the Dispute Settlement System 143-154 (Gior-

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that this institutional channel exists makes human rights an unavoidable key element in decision-making. As far as ICSID is concerned, few panel decisions delve into the realm of human rights. But this scarcity of explicit references is explained by the fact that measures adversely affecting foreign investment can rarely be presented as directly enhancing the enjoyment of human rights in the circumstances to be assessed. Yet, whenever necessary, the competent panels seem to be conscious of the involvement of the ICSID scheme in the general system of international law. Thus, in TECMED the arbitrators relied on the jurisprudence of the European Court of Human Rights to define what could be meant by the term “indirect expropriation” contained in a bilateral investment treaty (BIT).115 Moreover, it is obvious that when the panel in LG&E v. Argentine Republic found that the economic crisis that had rolled over the country in 2001 amounted to a state of public necessity within the meaning of the emergency clause of the BIT and of the ILC Articles at the same time,116 it had not only the abstract connotation of that State’s weakness in mind, but took primarily account of the suffering of the population. On the whole, however, a certain reluctance of the ICSID tribunals to take conflicting treaty obligations into account has been noted.117 A last example from the case law of the ICJ sheds a particularly illuminating light on the function of human rights in the interpretation and application of regimes that in the past were considered to be largely separate from human rights. According to the ICJ, the former watertight boundary line between humanitarian law and human rights cannot be maintained. The understanding of those two regimes has gradually shifted over the years. Whereas originally the two were deemed to be totally disconnected—either the law of peace or the law of war had to be applied,118 the ICJ stated in its Advisory Opinion on Nuclear Weapons “that the protection of the International Covenant on Civil and Political rights does not cease in times of war,” embracing however at the same time, in a somewhat contradictory fashion, the theory of lex specialis by stating that: whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only

gio Sacerdoti, Alan Yanovich & Jan Bohanes eds., 2006); Friedl Weiss, The Limits of the WTO: Facing Non-Trade Issues, in id. at 155-90. 115 WTO Appellate Body, Report in TECMED v. U.S., ICSID Case No. ARB(AF)/00/2 (May 29, 2003), 43 I.L.M. 133, 164, para. 122 (2004). 116 Supra note 102, at paras. 226-240 and 246-259. 117 See Moshe Hirsch, Conflicting Obligations in International Investment Law: Investment Tribunals’ Perspective, in The Shifting Allocation of Authority in International Law, supra note 34, at 323, 328 et seq. For an extensive use of other legal sources outside the specific ICSID rules, see Anne van Aaken, Fragmentation of International Law: The Case of International Investment Law, 17 Finnish Y.B. I.L 91, 92 (2006). 118 Friedrich Berber, Lehrbuch des Völkerrechts, Vol. II: Kriegsrecht 64 (2d ed. 1969); Alfred Verdross, Völkerrecht 293 (1937).

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be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.119

Eight years later, in 2004, the Court had to re-examine the relationship between human rights and international humanitarian law (IHL) when it was called upon to assess the lawfulness of the construction of a wall in the occupied Palestinian territory.120 In that connection, it became necessary to pronounce on the obligation of the Israeli authorities to respect, over and beyond IHL, the rules of human rights law, in particular the provisions of the Covenant. This time, the language of the Court was much more differentiated, without, however, entirely clarifying the problématique. The Court distinguishes three modes of co-existence. In the first place, it reiterates with resolute firmness that the protection of the conventions on human rights does not cease in case of armed conflict. And then it continues as follows: As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.121

In the judgment of 2005 in the dispute between the Democratic Republic of the Congo and Uganda, it reconfirmed that holding.122 Just recently, in the order issued on October 15, 2008 in respect of the dispute between Georgia and Russia, the Court assumed without any hesitation that the International Convention on the Elimination of All Forms of Racial Discrimination applies in any event during an armed conflict.123 This jurisprudence does not yet seem to be fully consolidated. However, one thing is absolutely clear. The ICJ approaches the interpretation of IHL law bearing in mind the commitments which States have undertaken under human rights conventions. Humanitarian law, although carried by a humanitarian spirit, as its name says, has evolved around the central idea of military necessity. The entire concept therefore deserves reconsideration, not with a view to total replacement, but in a cautious process of weighing the pros and cons of reform in a time when human rights play a greater role than ever in human history. The concept of collateral damages is one of the first candidates for such review. In many other fields, no hierarchical configuration in the relationship between different legal regimes can be observed. Then the classical recipes of lex posterior and 119 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 240, para. 25 (July 8) (emphasis added). 120 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136 (July 9). 121 Id. at 178, para. 106. 122 Armed Activities on the Territory of the Congo, para. 216 (Dec. 19, 2005). 123 ICJ, Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, 2008 I.L.M. 1013, 1034, para. 112 (Oct. 15, 2008).

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of lex specialis must be unearthed. Much less than in a domestic system of law do they provide adequate solutions in international law.124 Human rights can hardly ever be discarded by the lex posterior nor by a lex specialis since they are meant to constitute the stable permanent foundations of the international legal order. In instances of such conflicts, the decision-maker is called upon to do what judges and administrative authorities in domestic contexts do routinely on a daily basis: they ascertain the scope of the two conflicting rules, identify the interests lying behind those rules and balance them against each other.125 Many of such overlappings have been discussed in the legal literature.126 In German constitutional jargon the result of this weighing process is called “praktische Konkordanz”—a suitable term since it reflects well the pragmatic character of the intellectual operation for which no general rules can be established.127 IV. Concluding Observations The preceding analysis, which of course cannot be of an exhaustive nature, has shown that the allegations of fragmentation of international128 law are greatly exaggerated. Although many specialized mechanisms and fora have popped up, the responsible institutions show normally a high degree of awareness of their being enmeshed in the wider network of general international law with its new constitutional background. The wide variety of international procedures and decision-making bodies should not be seen as a threat to international law, but instead as the reflection of a living reality where international law has become a major factual power able to exert a decisive influence on societal developments. Since international law can never be the emanation of the will of an individual State and is therefore shielded against inherent arbi-

124 We agree with Carmen Thiele, Fragmentierung des Völkerrechts als Herausforderung für die Staatengemeinschaft, 46 Archiv des Völkerrechts 1, 5-10 (2008). 125 See also Koskenniemi & Leino, Fragmentation, supra note 41, at 574 (2002); Nele MatzLück, Harmonization, Systemic Integration and ‘Mutual Supportiveness’ as Conflict-Solution Techniques: Different Methods of Interpretation as a Challenge to Negative Effects of Fragmentation?, 17 Finnish Y.B. Int’l. L. 39-53 (2006). 126 See, e.g., Dario Bevilacqua, The International Regulation of Genetically Modified Organisms: Uncertainty, Fragmentation, and Precaution, 16 Eur. Envtl. L. Rev. 313-36 (2007); Benn McGrady, Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC-Biotech Products and the Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties, 42 J. World Trade 589-618 (2008); Jan Wouters & Bart De Meester, The UNESCO Convention on Cultural Diversity and WTO Law: A Case Study in Fragmentation of International Law, 42 J. World Trade 205-40 (2008). 127 See Hirsch, supra note 117, at 327. 128 A particularly somber diagnosis was provided a couple of years ago by Gerhard Hafner, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Int’l L. 849-68 (2004).

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trariness, the growing impact of its general rules deserves unreserved support and encouragement.129

129 For a positive assessment, see also Eyal Benvenisti, The Future of International Law Scholarship in Germany: The Tension between Interpretation and Change, 67 Heidelberg J. Int’l. L. 585, 589-90 (2007); Pierre-Marie Dupuy, L’unité de l’ordre juridique international: Cours général de droit international public, 297 Recueil des cours 157 (2003); and Anne Peters, Die Zukunft der Völkerrechtswissenschaft: Wider den epistemischen Nationalismus, 67 Heidelberg J. Int’l. L. 721, 723 (2007).

Chapter 19 Entrenchment—Human and Divine: A Reflection on Deuteronomy 13:1-6 J.H.H. Weiler*

There is no such thing as an unexplored text of the Bible. But Deuteronomy 13, verses 1-6, has received less juridical analysis than it might merit. Seemingly straightforward, I will attempt to show that it raises the most challenging and profound moral and theological questions, as well as intricate constructs of law and jurisprudence, that echo through the centuries and millennia of juridical praxis and theory. The chapter opens with the following canonical phrase integral to the re-elaboration (Deutero-nomos Mishneh Torah) of the Mosaic Codex: “What thing soever I command you, observe to do it: thou shalt not add thereto, nor diminish from it.”1 This would seem in many ways to be part of the Grundnorm of Mosaic law. We are instructed with that same divine authority that set out the material content of the long list of Mosaic commandments, that the list is finite and immutable. We may neither add, nor delete. Deuteronomy 13:1 seeks to entrench the Mosaic law. The modern German constitution—its basic law—famously tries to do the same thing in relation to some key provisions such as the inviolability of human dignity. The Constitution holds this provision as “unamendable.”2 The intention is clear—the provision is so fundamental we somehow want to entrench it against all possible human tampering. Human nature being what it is, painfully present in the minds of the drafters of the modern German Constitution, they wanted to put that provision beyond the hands of shifting majorities, even constitutional majorities. However, the authority of the constitutional norm on the inviolability of human dignity is the same as the authority of the constitutional norm making a provision “unamendable.” They both derive from the author of the constitution—some process and form (such as a constitutional assembly) representing the sovereignty of the German people. The *

1 2

For many years when responding to requests to write for a festschrift, I have adopted with no exception, the habit of contributing an essay on the Bible—something outside the normal realm of our work, as an expression of friendship, esteem, and affection towards the person honored. I dedicate this piece to Michael Riesman with all these feelings and some to spare. Deuteronomy 13:1. In some traditions these are the closing words of chapter 12. Grundgesetz [GG] [Constitution] art. 79(3) (F.R.G.).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 355-361.

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problem of trying to entrench in this manner a constitutional provision is obvious enough: Why would one give a constitutional assembly convened in, say, 1949 the power to tie the hands of a subsequent assembly, similarly constituted and reflecting in the same manner the sovereignty of the German people? It is a tricky question that may be asked regarding all constitutional amendment provisions. I do not intend to replicate here the extensive learning on this topic. But ultimately, even our common legal sense dictates that, at least procedurally, if we were to reconstitute the power that made and gave authority to the original constitution, it would be hard to explain and justify why a subsequent authority similarly constituted would not be able to change the provisions of the constitution, including the provisions on amendability. The authority of the most basic norm of our legal system is found outside that legal system. If that authority is invoked, the basic norm may be altered. In the case of God’s law and the entrenchment in Deuteronomy 13—at first blush the problem seems easier. Man should not be able to add or diminish from the commandments of God. One should not even understand the issue as one of entrenchment, but simply one of higher law. Deuteronomy 18:18-22 lays down the general provisions concerning prophets with the instruction that they must be obeyed and followed, whereas a false prophet must die. The test of the prophet is the veracity of his prophecy over time. Interestingly and significantly, the question of entrenchment does not arise. The issue of such a prophet advocating straying from the law is not even discussed. It is self evident that a prophet, whose authority is explicitly derived from the law, would have no authority if he himself undermines that very law. You cannot ask to be followed in the name of the law and at the same time claim to be above that law. The authority of the “normal” prophet is found within the legal system itself. It is subject to the Grundnorm of neither adding nor diminishing. But what if we appeal to the authority on which that very norm is predicated? That same common legal sense tells us that, if the alteration would come with the authority of God Himself and authentically in his name, of course, one could legitimately add or diminish from the Law. God, the author of the law, could of course change it. So, if God were to reveal himself to a new Moses—after all, the transmission of God’s will and word was through the human agency of the Prophet Moses, and through such new revelation add or diminish, that mutation would have to be considered authentic and overriding the norm of thou shalt neither add nor diminish. God himself, the author of the norm of neither adding nor diminishing could not be bound by that very same norm. Is there anyway one could entrench the law in these circumstances? It would be possible to seek to entrench in these circumstances by a procedural device: To make, say, the procedure of public revelation in Sinai part of the requirements for authentic expression of divine will. But that does really not entrench: For if that procedure is replicated, if God were to reveal himself again in public and authenticate a new Moses, the immutable law could legitimately be changed. Now let us consider the startling wisdom of Deuteronomy 13:

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If there arise among you a prophet, or a dreamer of dreams, and giveth thee a sign or a wonder, And the sign or the wonder come to pass, whereof he spake unto thee, saying, Let us go after other gods, which thou hast not known, and let us serve them; Thou shalt not hearken unto the words of that prophet, or that dreamer of dreams: for the LORD your God proveth [tests] you, to know whether ye love the LORD your God with all your heart and with all your soul. Ye shall walk after the LORD your God, and fear him, and keep his commandments, and obey his voice, and ye shall serve him, and cleave unto him. And that prophet, or that dreamer of dreams, shall be put to death; because he hath spoken to turn you away from the LORD your God, which brought you out of the land of Egypt, and redeemed you out of the house of bondage, to thrust thee out of the way which the LORD thy God commanded thee to walk in. So shalt thou put the evil away from the midst of thee.

Nota bene: The prophet who giveth a Sign (Ot) or a wonder (Mofet) is not a magician, a sorcerer or any one of the operators of supernaturalism which the Biblical world and word acknowledges. When God sends Moses and Aaron to Pharaoh they give Signs and Wonders (Otot u Moftim) to verify their provenance and authenticity.3 When some of these are precisely replicated by Pharaoh’s underlings, that does not make these underlings prophets: They are called magicians and sorcerers. And the very same acts or Signs or Wonders—the terminology for a divine signal—are renamed “enchantments” (Lahatutim). An Ot or a Mofet—a Sign or a Wonder—is the common terminology to indicate authentic divine provenance. The people were told that they were not to add or diminish from the commandments of God re-elaborated in the Duteronomic Codex. But surely if a Prophet, adding or diminishing, with the authenticating authority of Signs and Wonders from God, these changes would be valid? He who maketh, taketh? Apparently not. The commandments are entrenched even in this eventuality. For even if the Messenger were to enjoy an unmistakable sign and wonder, which in all respects replicated the signs that authenticated Moses4 at the moment the Prophet so authenticated were to inveigh a breach of the Mosaic law, that content is to be taken as sign of a divine test. The meaning of that test being that the message should not be followed since we are instructed that the messenger in question, with the authenticating signs and wonders, was sent by God, to “proveth” (menaseh ani otchem)—to test. To test the love, loyalty, and fidelity of the people to God’s revealed word to Moses at Sinai expressed in the Mosaic Codex. This is legally ingenious: Should a mere human come along, a brother, a son, a mother, as explicated immediately afterwards in Deuteronomy 13, and entice one (mesit) to stray from God’s commandments, that very fact of enticement would condemn him as violating the law of God, since clearly humans with their own agency may neither add nor diminish. But even if a Prophet comes, with Signs and Wonders 3 4

Exodus 4:1-9. Exodus 19:9.

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authenticating his divinely sanctioned authority, you may still not follow him, because the real purpose of exercising that divinely sanctioned authority is to test the recipients, proving their loyalty to the Sinaitic event. Heads you lose, tails I win. It is not only legally ingenious but of unique theological import. It is through the seemingly legalistic device of entrenchment that we come to understand the profundity of the revolution of Covenantal Monotheism. Typically in the discourse of entrenchment one is concerned with the ability of the constituent power, the subject, to bind its successors, the object, through some entrenching device to specific legal provisions. The subject attempts to tie the hands of the object. In our normal legal and constitutional landscape, in which the authority of one sovereign is hard to stipulate as greater than that of a successor sovereign, the ultimate answer seems to be that this cannot be achieved since at the moment the object can replicate the authoritative conditions of subjecthood and become subject himself, by virtue of that authority what was entrenched can be “untrenched.” What is special about the entrenchment in Deuteronomy 13 is the stunning realization that in binding the community for ever to his eternal law, God has at one and the same time tied his own hands. For, even if God were to replicate the conditions which, as in Exodus,5 authenticated Moses as the giver of the Law, it could, would and should be construed as coming under the Deuteronomic test. God binds the community, but at the same time he binds himself. When He covenants Chukat Olam, a law for ever, it is covenantal, like an indissoluble marriage. In human affairs, Till death do us part, means just that; and in this divine scheme, forever, ad olam, also means just that. In the words of Hosea: “And I will betroth thee unto me for ever; yea, I will betroth thee unto me in righteousness, and in judgment, and in lovingkindness, and in mercies.”6 Insisting on the Omnipotence of God, should not be confused with the capriciousness of God. God’s omnipotence is manifest in his ability to make an eternal covenant. To say that he can break such in the name of Omnipotence, leads to the opposite result—it actually demonstrates that he is unable to make an eternal Covenant—because even the possibility of unmaking the eternal covenant, means that it is no longer eternal, but a covenant at God’s Pleasure. The Mosaic codex is not only immutable, but eternal. It is termed a Chukat Olam, a law forever. This raises a second inextricable issue of equal complexity. Veritable immutability of this kind is inconsistent with a living and functional legal system especially one with the capacious reach of the Mosaic Codex—a law for life. There are two classical problems: First, what if you have, say, in the Codex laws regarding divorce, but not laws regarding marriage? Divorce, implies marriage, but the codex is silent. Does the prohibition on “adding” mean that you are prohibited from enacting and regulating marriage? If so, you would effectively be diminishing divorce, since if no one can marry, no one can divorce. So there must be a mechanism of deducing from that which is given, expressis verbis, that which is implied. Second, the express provisions of the Codex cannot envision all situations, especially as time goes by. The 5 6

“And the LORD said unto Moses, Lo, I come unto thee in a thick cloud, that the people may hear when I speak with thee, and believe thee for ever.” Exodus 19:9. Hosea 2:19.

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Codex prohibits all vehicles in the park, at a time when all vehicles were, say, heavy chariots pulled by noisy and dirt producing animals. Would the prohibition apply to the latest technological innovation, a self-propelled contraption called a bicycle, which is both silent and clean? Maybe it does, maybe it does not, but only some system of interpretation can give an answer. Interpretation is part of the ontology of any legal codex, more so when the codex itself is a higher law and even more so if it is designed to be immutable and eternal—where one cannot say: Lets leave that to the legislator; or that will require a constitutional amendment. One cannot overstate the importance of this point, but one can restate it in slightly different terms. If an immutable Codex is to remain also a timeless Codex—an eternal covenant, or at least one till the end of days—and not dead letter writ on stone, interpretation becomes its living breath, an essential component. To say that interpretation is part of the ontology of a Codex—be it the Deuteronomic Codex or the Constitution of the United States is not to minimize the delicacy of that proposition and certainly not to second-guess the complex issue of what should be the appropriate norms of interpretation. The boundary between legitimate judicial interpretation and illegitimate judicial legislative or constitutional usurpation masquerading as interpretation, is notorious and I am thankful that I do not have to address that issue. But most of us will agree that there is a category difference between an act of interpretation that would, for example, reach the result that roller skates are not to be considered as a vehicle and hence the prohibition does not apply to them and, by contrast, a decision that the prohibition simply is null and void. In the first case, we give huge respect to the codex prohibition on vehicles in the park. We consider it normative and binding. We seek, through interpretation, to determine its scope and boundaries. In the second, we either disrespect the norm and its author or regard ourselves as enjoying an authority of at least equal value that gives us the freedom to mutate the norm—to add, or to diminish. The practical effect might be exactly the same. The line may sometimes be so difficult to draw that the distinction might seem academic. Still, if, say, in today’s world we were rid of all vehicles except, say, skateboards and roller skates, though the end result is the same, there would be a difference between holding on to the prohibition but simply interpreting its scope as not applying to skateboards and roller skates, or abolishing the prohibition itself. Let us consider the emotions that overreaching decisions of, say, the Supreme Court of the United States in interpreting the American Constitution evoke, decisions in which the line between interpretation and judicial legislation is transgressed by whatever standard the observer considers appropriate. For some, the concern is mostly the material content of the decision: If the substantive result serves my interest, I do not care much how they reached it. But to others, many, perhaps most, the process is as important. It is of course in part an issue of institutional power—power that should, say, vest in the legislature or the Presidency and is seen to be arrogated by the judicial branch. But the matter goes deeper. The rage is not based on just a calculus of interests. The vocabulary one finds in the heat of these debates is telling: Presumption, Arrogance, Usurpation, disrespect to the Constitution, Disrespect to the people. And the rage is shared by left and right: When, in the eyes of its beholders the Court transgresses the line and strays from its interpretative role it seems to

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be tampering, subverting, yes, a sacred document. How much more so if one were dealing with a truly sacred document. This line, too, has significant and obvious consequences—a privileging of the interpreter, a power accruing to the learned and other obvious social effects. Yes, it empowers decisors, judges, courts. But it has, too, profound theological and spiritual consequences. For it gives a whole different meaning to “original intent.” Original intent in this type of system is not about a hermeneutic rule in case of indeterminacy. It is a rule of closeness, of communion, and of fealty, since through the ontology and inevitably of interpretation, two things happen simultaneously. The Law Giver is forever present, alive, renewed, and fresh, and at the same time close. It is in reality the opposite to the typical and common antinomian critique. Moreover, it is interesting that Jewish law is extraordinary interested in espousing a tendency to acknowledge a diffuse and decentralized system; in accepting the ability of everyone to engage in learning and even decisorship. Throughout its history it has encountered countertendencies to centralize through formal and informal institutions, such as the current practice of deference to The Great Ones. There has been on this reading an ongoing Reformation and Counterreformation reflecting a tension between the functional and the spiritual. The purely “Catholic” structure would have been a lot more functional—but it would rob the law of its diffuse spiritual function, a way for everyone to feel a connection to the Law Giver—the Almighty Himself. Let us now turn from the legal aspects of Deuteronomy 13 to some moral and theological concerns. The first is to underline a point made previously in passing. The messenger here is termed a Prophet. He is not an “… observer of times, or an enchanter, or a witch. Or a charmer, or a consulter with familiar spirits, or a wizard, or a necromancer.”7 Likewise, he is not authenticated by “enchantments”—but by Signs and Wonders, terms typically reserved to those acting on behalf of God. It is commonplace that the actions of evil people can serve the ends of God. But this does not seem at all to be the case here. The appellation, the authentication, and the purpose all indicate agency. This is someone sent by God to test the people. It is not at all self-evident, and thus also the subject of considerable speculation, why God would want to test or prove the people in the manner suggested by these verses. Let us consider. If they are transgressing, as they seemed regularly to do throughout the Biblical narrative, from Joshua through Chronicles, there is nothing to test or prove. And if they are actually following the ways of the Almighty and observing his commandments, why seek to entrap them? And yet, Deuteronomy clearly envisages that God contemplates such a test. We may receive some illumination from the most conspicuous antecedent: “Now it came to pass after these things that God tested Abraham, and said to him, ‘Abraham!’ ”8 That test, which uses the same verb we find in Deuteronomy, is, too, replete with deep theological issues and we must resist the temptation to digress too much. In contemplating the Binding, we are inclined to reject the simple notion of test—to 7 8

Deuteronomy 18:10, 11. Genesis 22:1.

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see whether or not Abraham would obey his Creator and construe the Hebrew verb NSH as Nisayon, an experience, a Trial—as in trial and error. This trial of Abraham, is meant to give Abraham the experience, to put him through a test of fire and water. It is a trial so that he would emerge transformed. Likewise, we are inclined to construe the phrase uttered by the Angel: “For now I know that you fear God” not in the simple meaning of knowledge acquired as a result of the test which would jar with an omniscient God, but as a different type of knowledge. You are different after the trial, after the Nisayon, and I know you in different way. Understandably, the trial achieved its aim of redefining the relationship between God and Man. Under this perspective (and I am aware of course that there are as many interpretations to the Akeyda as there are readers) the “test” makes sense. It comes at a very unique moment and is formative and transformative in the relationship between God and the father of his nation, the father of all nations. Could it be that such a testing, such a trial, is necessary and desirable precisely at those moments when “prophets” of all manner and shape come with tantalizing signs and wonders, which appeal to hearts and minds and where the humdrum of normal fealty and closeness are not sufficient—when even the law of God, immutable and eternal, needs to be reconsidered, justified and followed through conviction and introspection, autonomously and not merely through habit and obedience to human agents of the law? We are faced with the same stunning realization about the audacity of the text. Just as we saw that the binding of man was at one and the same time the binding of God himself, we see here that the test and the trial of man, is an invitation to a test and trial of God. God has created us free, has given us choice. The ultimate freedom, being the freedom to say No to our Creator. By testing us, He invites us to test Him. He wants our fealty through conviction and internalization, not through coercion and habit. Covenantal monotheism at its most glorious.

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Chapter 20 Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations Rüdiger Wolfrum*

I. Introduction International law may, to the extent it contains mandatory obligations, either order or prohibit a particular behavior of States.1 The international obligation in question may address the prescriptive, the executive or (then mostly indirectly) the adjudicative function of States. Both orders and prohibitions imply per definitionem some kind of restraint on the freedom of State action. Such limitation of State action or obligation to act may materialize on the international as well as on the domestic level or on both. This means that the State in question either has to undertake a particular action vis-à-vis other States or the community of States or it has to enact a particular legislation or to modify its executive or its adjudicative actions. Regardless of the level where the international obligation materializes itself according to Article 26 of the Vienna Convention on the Law of Treaties2 it is the obligation of each individual State to ensure the implementation of its international treaty obligations in good faith. The content of this provision seems to be quite straightforward. As far as the implementation of international obligations are concerned, the Draft Articles of the International Law Commission on State Responsibility (ILC) in their

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I thank Holger Hestermeyer, Chie Kojima, Nele Matz-Lück, Anja Seibert-Fohr and Silja Vöneky for their valuable suggestions to this contribution. The basis for this contribution is that international obligations are of a legally binding nature and can thus limit the freedom of decisions of States in international relations although not necessarily all provisions of an international treaty impose such limits. This approach deviates, to some extent, from the one of Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005), which places more emphasis on the coincidence of interest, coordination, cooperation and coercion, id. at 10 et seq., and even more fundamentally from the one of Robert Kagan, Of Paradise and Power. American and Europe in the New World Order (2005). But there is no place here to discuss their approaches. 1155 U.N.T.S. 331.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 363-383.

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first reading3 painted a more complex picture of what constitutes a breach of international law. They distinguished between two kinds of international obligations, namely obligation of conduct and obligation of result. The former were defined as obligations that must be implemented through conduct, i.e. means specifically determined by the international obligation itself which is not true for the obligation of result. With “obligation of result” the ILC meant an international obligation that requires the State to ensure the obtainment of a particular situation—a specified result4—and leaves it for that State to achieve such a situation or result by means of its own choice. In other words, the distinction between obligations of conduct and those of result depends on whether the international obligation concerns the performance (or omission) of a particular act or the establishment/maintenance of a particular situation.5 This distinction is not reflected in the final version of the ILC Articles on State Responsibility since the ILC intentionally refrained from specifying the content of the primary rules of international law and the obligation thereby created for a particular State.6 As stated explicitly in the commentary to the Articles on State Responsibility, it is not for these rules to determine the scope and content of an international obligation.

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Article 20 read: “There is a breach by a State of an international obligation requiring it to adopt a particular course of conduct when the conduct of that State is not in conformity with that required of it by that obligation.” The Sixth Report of the Special Rapporteur on State responsibility, Roberto Ago, had originally recommended the following definition: “A breach by the State of an international obligation specifically calling for it to adopt a particular course of conduct exists simply by virtue of the adoption of a course of conduct different from that specifically required.” Article 20, [1977] 2 Y.B. Int’l L. Comm’n pt. 1, at 8. Article 21 reads in its relevant part: “1. There is a breach by a State of an international obligation requiring it to achieve, by means of its own choice, a specified result if, by the conduct adopted, the State does not achieve the result required of it by that obligation.” The definition of the Special Rapporteur read: “(1) A breach of an international obligation requiring the State to achieve a particular result in concreto, but leaving it free to choose at the outset the means of achieving that result, exists if, by the conduct adopted in exercising its freedom of choice, the State has not in fact achieved the internationally required result.” Id. at 20. See, on this draft and the classification of international obligations as those of result or conduct, Jean Combacau, Obligations de résultat et obligations de comportement: Quelques questions et pas de réponse, in Mélanges offerts à Paul Reuter, Le droit international: Unité et diversité 181 et seq. (D. Bardonnet ed., 1981). This result can be defined positively or negatively, for example, not to resort to military force, in violation of Article 2, paragraph 4, of the U.N. Charter. It has to be acknowledged that it will be sometimes difficult to distinguish between an obligation of omission and an obligation to maintain a particular situation. 37 I.L.M. 440 (1998). Article 12 of the Articles on State Responsibility reads: “There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”

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This must be undertaken, according to the Commentary, upon an interpretation of the international instrument in question.7 That the distinction between obligations of conduct and of result is not merely academic is illustrated by the Declaration of Michael Reisman on the Judgment of the Arbitral Tribunal in the Dispute Concerning Access to Information under Article 9 of the OSPAR Convention.8 He raised the question whether Article 9 of the OSPAR Convention requires the Contracting Parties to establish an internal regime providing for a procedure through which the information can be sought by persons requesting it (obligation of conduct) or whether it requires Contracting Parties to make the information available (obligation of result). Article 9, paragraph 1 of the OSPAR Convention provides: The Contracting Parties shall ensure that their competent authorities are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person’s having to prove an interest, without unreasonable charges, as soon as possible and at the latest within two months.

Michael Reisman took the view that the relevant provision should have been considered as an obligation of conduct rather than an obligation of result since the United Kingdom had only to establish an internal regime that provides the possibility to obtain the relevant information. From that he drew conclusions concerning the jurisdictional powers of the Arbitral Tribunal. The Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America)9 is another example demonstrating that the proper classification of a particular international obligation has a bearing upon the responsibility of the States concerned. Mexico understands paragraph 153(9) of the Judgment in the Case Concerning Avena and Other Mexican Nationals as imposing an obligation of result on the United States and states that, “by its actions thus far,” the United States understands the Judgment “to constitute merely an obligation of means, not … of result.” The United States explains that the implementation of the Avena Judgment has met with some problems stemming from the federal structure of the country but it has “clearly accepted that the obligation … is an obligation of

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James Crawford, The International Law Commission’s Articles on State Responsibility 124 (2002). Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ir. v. U.K.) (Perm. Ct. Arb. 2003), available at http://www.pca-cpa.org/upload/files/ OSPAR20Award.pdf. Order of July 16, 2008, Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mex. v. U.S.), available at http://www.icj-cij.org/docket/files/139/14639.pdf

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result.”10 The International Court of Justice has invoked these terms in the past more frequently while modifying their meaning to a certain extent.11 This is not the place to consider or rather reconsider the interpretation of Article 9 of OSPAR or to assess paragraph 153(9) of the Judgment in the Case Concerning Avena and Other Mexicans. It is, instead, the objective of this contribution to inquire whether international obligations may properly be classified only as obligations of conduct or obligations of result or whether further classifications are called for and which conclusions are to be drawn from any such classification as to State responsibility and to the role of the international court or tribunal in question. In his Declaration Michael Reisman has dealt in particular with the latter aspect. II. Obligation of Result/Obligation of Conduct and Other International Obligations A. In General It is questionable whether the view originally held by the ILC that international obligations define either the conduct or the result of State behavior is describing international obligations exhaustively or, in other words, with sufficient differentiation. The definition does not reflect that international obligations—irrespective of whether they require a conduct or a result—vary as to the discretion they leave to States Parties in the implementation of such obligations. An example from international environmental law may serve as an illustration. Although there are international obligations which set down fixed standards several international environmental regimes only provide a framework for considering and weighing issues against each other in order to subsequently establish what is required. Additionally, some international treaties allow States Parties temporarily or in part to suspend the implementation of an international obligation entered into if they consider this would obstruct the achievement of national policies considered particularly important.12 It is to be acknowledged that these cases do not put into question the distinction between international obligations of conduct and of result in general although they indicate that this distinction is not an exhaustive description of the nature and scope of international obligations. One of the shortcomings of a definition along the lines of “conduct” and “result” is that it does not adequately reflect the fact that international obligations may also be qualified as goal-oriented. Goal-oriented, in this context, means that States com10 11

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See id. para. 50. See, e.g., Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), Judgment of February 16, 2007, paras. 429 et seq. International economic law offers additional examples, for example, the national security exception contained in numerous treaties allowing States Parties to disregard obligations under the treaty. See, e.g., General Agreement on Tariffs and Trade (GATT), art. XXI; TRIPS Agreement, art. 73. Other such exceptions limit obligations than can be derogated from or enumerate different policy goals that allow derogations. See, e.g., GATT, art. XX.

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mit themselves to set into motion an evolutionary process leading into a particular direction.13 The process may be designed to be permanent without a concrete result envisaged or, alternatively, the process may mean to lead to a concrete result albeit in some (distant) future. The former alternative is closer to an obligation of conduct and the latter closer to an obligation of result. An example of the former alternative are the obligations under Article 55(a) of the U.N. Charter to promote higher standards of living, full employment, and conditions of economic and social progress. They are goal-oriented without a concrete result envisaged or a concrete conduct prescribed.14 As examples where a result is envisaged by a goal-oriented obligation, albeit in distant future one may refer to Article 2, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights, 1966,15 and from among international environmental law to Article 2 of the Convention on the Protection of the Alps16 as being goal-oriented. The decisive criterion to distinguish goal-oriented obligations from ones of result is that the obligations of result focus on the achievement of a specific and concrete change of facts. If such changes have been achieved the respective obligation may become moot in the sense that the State in question has fulfilled its obligation and encounters no further obligation except the one not to revise the facts. It is well establish that continuous obligations may exist. Goal-oriented obligations differ from such continuous obligations since they lack the specificity of the former. In comparison to obligations of conduct which focus on the establishment of a particular procedure, goal-oriented obligations do not require the States under obligation to set up a particular procedure. For example, the obligation to cooperate without emphasizing an objective aimed for clearly constitutes an obligation of conduct whereas the obligation to improve the friendly relations among States and to promote higher standards of living, full employment, etc.—without further specifications, particularly as to the concrete conduct the State has to follow or a target date when certain results are to be achieved,—should be considered goal-oriented obliga-

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It has been alleged that such obligations, for example, in the ambit of economic, social and cultural rights under the International Covenant on Economic, Social and Cultural Rights, 992 U.N.T.S. 3, are more hortatory or programmatic. See E. W. Vierdag, The Legal Nature of Rights Granted by the International Covenant on Economic, Social and Cultural Rights, 9 Neth. Y.B. Int’l L. 69, 83 (1978); Michael Bothe, Les concepts fondamentaux du droit à la santé: Le point de vue juridique, in Le droit à la santé en tant que droit de l’homme, The Right to Health as a Human Right (René-Jean Dupuy ed., 1979), Recueil des Cours 1978 Colloque 14, 21. There is a growing consensus that these provisions contain binding obligations with immediate effect. See, e.g., Holger Hestermeyer, Human Rights and the WTO 89-94 (2007). On this provision, Rüdiger Wolfrum, Art. 55(A) and (B), in 2 The Charter of the United Nations 897 (Bruno Simma ed., 2d ed. 2002). This does not imply that the provision does not impose obligations with immediate effect. See Committee on Economic, Social and Cultural Rights, General Comment No. 3 (1990). 31 I.L.M. 767 (1992).

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tions. In particular, the use of the word “promote”—couched in mandatory terms—is an indicator for an international goal-oriented obligation. Goal-oriented obligations belong to a separate category of obligations for the following reasons. On the one hand, States are not committed to achieving a concrete result immediately although it is feasible to evaluate whether the obligation has been implemented adequately by assessing the progress having been made. On the other hand, States owe not only a particular conduct but rather a conduct leading into a particular direction. Advocating the existence of a particular type of international obligations qualified as being goal oriented is not intended to place in question the fact that every international obligation has a particular objective. The typology advocated here is meant to highlight the differing focus of international obligations and to indicate that such a focus is of relevance for international adjudicative bodies and has, probably, some bearing on the responsibility of States. Goal-oriented obligations focus on an objective without requesting a specifically defined or definable result to be achieved and without requiring a particular procedure to be set up. The decision on what constitutes the focus depends upon the intent of the States Parties concerned as reflected in the international treaty in question and is a matter of interpretation. Although the definition seems to indicate a “softer” kind of obligation, States are obliged to comply, that is, doing nothing that could raise the issue of responsibility for a lack of performance. Equally, a differentiation as to conduct and result only does not adequately cover those cases where the international obligation is, in fact, addressed to natural or juridical persons and where the implementation of such an international obligation depends upon States to effectively inducing or forcing the addressees to honor it. It is problematic to qualify an obligation of the States establishing the necessary domestic legal framework and monitoring the behavior of natural or juridical persons as one of either of result or of conduct. This would not adequately reflect the obligation entailed for the States concerned. Accordingly such obligations also should be considered as belonging to a separate category. They may raise particular problems in the context of State responsibility and dispute settlement as will be demonstrated. Finally, international obligations may combine obligations of result as well as of conduct or as a matter of fact any other combination of the obligations referred to above. Concerning this typology, the presentation will concentrate on the combination of obligations of result and of conduct. These should be considered an extra category since such obligations may again raise particular questions in the context of State responsibility and dispute settlement as will be demonstrated. As a hypothesis and in conclusion of the above it is argued that the following types of international obligations should be distinguished: (1) obligations of result; (2) obligations of conduct; (3) goal-oriented obligations; (4) obligations which, in fact, address natural and juridical persons and, finally, (5) international obligations of conduct as well as of result. In domestic law the same differentiation can be made as on the international level which demonstrates that such differentiation is inherent to any legal system and is meant to steer the conduct of States or of individuals as the case may be.

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In the following pages, which will concentrate on obligations under international rather than national law, this hypothesis will be tested against concrete examples of international obligations enshrined in various international agreements or formulated by judgments of international adjudicative bodies. B. Obligations of Result 1. The Obligation Obligations of result have been described above as those where States have to achieve a specific factual situation the prescription of which may be either prohibitive or commanding. Proceeding from this definition a typical example for an obligation of result is Article 2 of the Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 as adjusted and/or amended.17 This article provides for a gradual phasing out of the consumption of certain controlled substances.18 In effect, this obligation means that after January 1, 2010, the calculated level of production of these substances shall be zero. This constitutes a clearly defined international obligation of result. Equally, an obligation of result, although defined negatively, is formulated by Article 7 of the Protocol of Environmental Protection to the Antarctic Treaty.19 It prohibits “any activity relating to mineral resources, other than scientific research.” The obligation is equally a prohibitive and continuous one. Phrased in mandatory terms the obligation, nevertheless, leaves States Parties considerable discretion as to the conduct of activities in Antarctica since it may be difficult to distinguish fundamental research, including research on mineral resources, from prospecting the latter qualifying as mineral resource activity.20 This provision addresses the States Parties of the Protocol. The obligation of States Parties in respect of activities undertaken by natural or juridical persons in Antarctica is a different issue and will be addressed below. Another example to be mentioned as an obligation of result—equally a prohibitive and a continuous one—is the obligation to refrain from the use of military force contrary to Article 2, paragraph 4, U.N. Charter.21 Finally, the obligation under Article 2, paragraph 1, of the International Convention on the Elimination of All Forms of Racial Discrimination, 196622 should be qualified as one of result. It reads:

17 18 19 20

21 22

Available at http://www.unep.ch/ozone/Montreal-Protocol/Montreal-Protocol2000. shtml. Group I, Annex A of the Protocol. Available at http://www.antarctica.ac.uk./about_antarctica/geopolitical/treaty/update_1991.php. See, for example, art. 2, Annex III, of the United Nations Convention on the Law of the Sea, although this provision does not apply in the context of the Protocol of Environmental Protection to the Antarctic Treaty. As to the content of this provision, see, inter alia, Albrecht Randelzhofer, Article 2(4), in 1 The Charter of the United Nations, supra note 14, at 112. 660 U.N.T.S. 195.

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All States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local shall act in conformity with this obligation.

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It is the obligation of States Parties to eradicate discrimination as defined in Article 1 of this Convention; States Parties enjoy wide discretion on how to achieve this result. Frequently, States Parties have argued that it was sufficient for them to have developed norms prohibiting racial discrimination, for example, a constitutional or statutory prohibition of racial discrimination, a view consistently rejected by the Committee on the Elimination of Racial Discrimination, the monitoring body of that Convention, on the ground that it was the effective elimination of racial discrimination which counted and not the adaptation of the national legal system to the Convention alone. As the Committee has stated frequently, it is for the States Parties to prove that national norms are applied effectively, required preventive measures as well as repressive measures have been taken, and social indicators revealing tendencies of racial discrimination are being monitored and that such tendencies are being countered. The Committee further emphasized that although States Parties were free in choosing how to achieve the result required by the Convention, the Committee could question the efficiency and the adequacy of the means adopted.23 The qualification of international obligations where the committed States are under an obligation to take certain steps to prevent the occurrence of specific acts the given international instrument seeks to prohibit, such as the prevention of torture according to Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 198424 may be controversial. The International Court of Justice (ICJ) considers such obligations as enshrined in Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide, 194825— the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 1973;26 the Convention on the Safety of United Nations and Associated Personnel, 1994;27 the Convention on the Suppression of Terrorist Bombings, 199728 are equally mentioned in this context—as one of conduct rather than of result.29 The reasoning of the Court is quite explicit: 23

24 25 26 27 28 29

As to the legislative history of Article 2 of the U.N. Convention on the Elimination of All Forms of Racial Discrimination, see Natan Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination 34 et seq. (2d ed. 1980). 1465 U.N.T.S..85. 78 U.N.T.S. 277. 1035 U.N.T.S. 167. 2051 U.N.T.S. 363. 2149 U.N.T.S. 284. See supra note 11, para. 429.

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[I]t is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; …30

This jurisprudence, in fact, may lead to an amelioration of the obligations entered into by States Parties. In the case of genocide and torture one may wonder whether such jurisprudence is reconcilable with the overwhelming majority opinion that acts of genocide or torture are in violation of ius cogens. Apart from that it is doubtful whether the arguments advanced by the Court are really coherent, since it states that “a State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. …” 31 This would be indicative of an obligation of result rather than one of conduct. The jurisprudence of the Court, however, has one positive consequence also. Qualifying such obligations to prevent something as obligations of conduct would allow the assessment of whether the State concerned has really taken all necessary measures required to prevent the acts the international agreement in question seeks to prohibit irrespective of whether the act actually occurred. The wording of Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment points in this direction,32 whereas, Article I of the Convention on the Prevention and Punishment of the Crime of Genocide does not focus on domestic measures to be undertaken by a State Party. However, Articles III to VII of that Convention include detailed provisions concerning the duty to punish the crime of genocide. The taking of a comprehensive view of the obligations under the Convention may have been the reason why the obligation to prevent is qualified as one of conduct although the more convincing approach would have been to consider these obligations as one of conduct as well as of result. 2. Establishing Compliance or Non-Compliance To establish whether the State in question has lived up to its international obligation of result, it is necessary to compare the envisaged result with the factual situation at the time when the result was to be achieved or when an incident occurs. If the facts do not coincide with the envisaged result (for example, the emission or production of gases harmful to the ozone layer was not brought to zero) it is to be concluded in accordance with Article 12 of the Articles on State Responsibility that the committed State is in breach of its international obligation. In such a situation it is only the result which matters; the State in question cannot argue that it has enacted the necessary legislation or has given the necessary instructions to its judiciary, the executive or—in the case of a federal State—to its states. This issue seems to be the decisive point in the Request for Interpretation of the Judg30 31 32

Id. para. 430. Id. para. 431. Article 2 (1) reads: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

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ment of March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States).33 Mexico understands paragraph 153(9) of the Judgment in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States)34 as imposing an obligation of result on the United States including all its component organs at all levels to provide the requisite review and reconsideration irrespective of any domestic law impediment. Mexico alleges that the United States understands the Judgment to constitute merely an obligation of means and acted accordingly. On its part, the United States acknowledges that the obligation is one of result but at the same time refers to domestic law restraints. If, in fact, the obligation “… to provide by means of its own choosing, review and reconsideration of the convictions and sentences …” is one of result the only issue that matters is that the convictions and sentences are reviewed which requires the application of an appropriate review procedure, and are reconsidered in substance. A similar issue came up in the LaGrand case.35 In its Order of March 3, 1999, on Provisional Measures, the Court indicated that “[t]he United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings.” 36 This obligation was qualified by the Court not to be one of result. In doing so, the ICJ evidently emphasized the words “take all measures at its disposal” rather than “that Walter LaGrand is not executed.” 37 One may reasonably have some doubts as to whether the Court’s interpretation of its own Order is well founded considering its interpretation of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of July 8, 1996,38 where the emphasis was put on the objective to be achieved rather than on the obligation to negotiate in good faith. The objective of the Order in the LaGrand case was to achieve at least a temporary stay of execution and not only a particular conduct. Probably the Court did not consider it necessary to elaborate on this point since it qualified the actions taken by the various organs of the United States as insufficient and therefore contrary to the Order of March 3, 1999. When it comes to the assessment of compliance, qualifying an international obligation as one of result has a protective effect for the State concerned. If a State has achieved the desired result, it cannot be argued that it should have taken a different course of action although other States may have reached that very result through different though perhaps more efficient means. For example, the Committee on the 33 34

35 36 37 38

See Order of 16 July 2008, Request for the Indication of Provisional Measures, supra note 10. Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31). Equally relevant in this context is the Order of the ICJ in the Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 99, which is documented in W. Michael Reisman et al., International Law in Contemporary Perspective 11 et seq. (2004). LaGrand (F.R.G v. U.S.), 2001 I.C.J. 466 (June 27). LaGrand (F.R.G. v. U.S.), 1999 I.C.J. 9, 16, para. 29 (Mar. 3). See supra note 35, at 474. 1996 I.C.J. 226; on this, see infra note 46.

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Elimination of Racial Discrimination frequently discussed whether under Article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination39 States Parties were under an obligation to enact a comprehensive antidiscrimination law. In spite of some contrary views the Committee held that the obligations under Article 2 of the Convention may be implemented by various means whereas the implementation of Article 4 of the Convention required an amendment of the penal code.40 A further, hypothetical example from international environmental law may underline this point. If the international instruments for the protection of the world climate had only limited the emission of certain gases calculated on the basis of the territory of each single State, it would have been possible for the States to achieve such a narrowly defined objective by employing different means tailored to their national needs however defined. This would have not been sufficient to protect the world climate which requires a coordinated action. It is for this reason that States Parties are not free to choose how to achieve the envisaged objective under the climate regime in force. C. Obligations of Conduct 1. The Obligation Whether an obligation is one of conduct or one of result was an issue dealt with by the ICJ in its Advisory Opinion of April 29, 1999, on Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights.41 Malaysia argued that Article VI, section 22 of the Convention on Privileges and Immunities of the United Nations was only an obligation of result, not of means to be employed in achieving that result. Malaysia further stated that it had complied with its obligation under section 34 of the General Convention which provides that a party to the Convention must be “in a position under its own law to give effect to its terms” by enacting the necessary legislation.42 The ICJ, however, argued that the relevant obligation was one of conduct and on that basis issued the opinion that Malaysia had not complied with its obligations.43 Obligations of conduct have been defined above as those where the State concerned is required to undertake a particular action. There are numerous typical examples of this. All international obligations to cooperate may be qualified as obligations of conduct, unless a goal of the cooperation is stated in which case the obligation may be goal-oriented. Such obligations are manifold. Another typical example 39 40

41 42 43

See supra note 23. Michael Banton, International Action Against Racial Discrimination 205 (1996); Rüdiger Wolfrum, Das Verbot der Rassendiskriminierung im Spannungsfeld zwischen dem Schutz internationaler Freiheitsrechte und der Verpflichtung des einzelnen im Allgemeininteresse, in Kritik und Vertrauen. Festschrift für Peter Schneider 515, 515 et seq., 520 (Erhard Denninger et al. eds., 1990). 1999 I.C.J. 62, 86 et seq., paras. 57 et seq. Id. at 86, para. 58. Id. at 87, para. 62.

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of obligations of conduct are jurisdictional clauses requiring recourse to diplomatic negotiations prior to initiating judicial proceedings. There exists ample jurisprudence of the ICJ and the PCIJ concerning the meaning and scope of such clauses.44 A further typical obligation of conduct is the one to enter into negotiations. However, such qualification may not be uncontroversial if the final objective of such negotiations is predetermined. This is the case for Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, 196845 to give one example. According to this provision the States Parties commit themselves to faithfully undertake negotiations with a view to putting an end to the nuclear arms race. The ICJ alluded to this provision in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of July 8, 1996,46 qualifying it as an obligation of result. Actually under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons two types of obligations are to be distinguished, namely negotiations and conduct, which are meant to lead subsequently to a reduction of such weapons, as a result. However, States do not owe such a result individually since the negotiations may fail. Additionally thereto nuclear weapon States are to discourage other States to obtain nuclear weapons, clearly an obligation of conduct. The jurisprudence of the ICJ qualifying the obligation under Article VI as one of conduct marginalizes the obligation to negotiate and does not clearly distinguish between individual and common obligations of the nuclear weapon States. Additionally this jurisprudence is difficult to reconcile with, for example, the jurisprudence of the ICJ that obligations to prevent certain acts to occur (genocide, torture) are obligations of conduct since in such a situation States are meant to have full control of the situation whereas the result depends upon negotiations they do not exercise such control. So far, examples have been introduced where the conduct required is to be implemented on the international level (negotiation, co-operation), the situation becomes more complex if the required conduct has to take place on the national level (in particular the obligation to enact a particular legislation). The general obligation of Article 2 of the Vienna Convention on the Protection of the Ozone Layer47 may serve as an example for an obligation of conduct. States Parties to the Convention commit themselves to take measures to protect human health and the environment against negative effects resulting from human activities which modify or may modify the ozone layer. This general obligation is further specified by Article 2, paragraph 2 of the Vienna Convention; such specifications refer to monitoring activities or legislative and executive measures. Another obligation of conduct requiring action on the domestic level is enshrined in Article 22 of the Vienna Convention on Diplomatic

44

45 46 47

See, e.g., Mavrommatis Jerusalem Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, at 13; Right of Passage over Indian Territory, 1960 I.C.J. 6, 31 et seq.; South-West Africa, Preliminary Objections, 1962 I.C.J. 319, 344 et seq.; Border and Transborder Armed Actions (Nicar. v. Hond.), 1988 I.C.J. 69, 99 et seq., paras. 77 et seq. 729 U.N.T.S. 161. See supra note 38, at 263 et seq. 1513 U.N.T.S. 293.

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Relations, 1961.48 The International Court of Justice has treated this obligation as one of conduct (without using such terminology, though).49 Less easy to qualify is Article 2 of the Protocol of Environmental Protection to the Antarctic Treaty. According to it: [T]he Parties commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems. And hereby designate Antarctica as a natural reserve devoted to peace and science.

Considering that Article 3 of the Protocol spells out several environmental principles and Annexes I to VI promulgate on that basis procedural as well as substantive obligations, it is safe to conclude that the obligation is one of conduct although one may be tempted to qualify this obligation as one which is goal-oriented. As already indicated, the ICJ qualified certain international obligations to take steps domestically to prevent acts the international agreement in question seeks to prohibit as obligations of conduct. This focuses on obligations to take action domestically as, for example, enshrined in Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,50 rather than on the result to be achieved. It seems to be more appropriate to consider such legal regimes as providing for obligations of both result (to ensure the elimination of torture) and as one of conduct (to enact the required legislation). The examples given indicate that there are several, one may say classical, types of obligations of conduct, such as the obligation to cooperate, to negotiate and to settle disputes by peaceful means. Such obligations have to be implemented on the international level and they are in general of a procedural nature. Other obligations of conduct are to be implemented on the domestic level. The States concerned are to enact legislation or to take certain administrative actions. In such cases it may be much more problematic to distinguish between obligations of result and those of conduct as can be seen from the adjudication in the LaGrand case, the Avena case and the arguments voiced in respect of the Advisory Opinion on the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights. 2. Establishing Compliance or Non-Compliance To establish whether a State has complied with its obligations of conduct, it is necessary to compare the conduct prescribed with the actual conduct undertaken. When the action or omission noted is, in fact, not in conformity with the conduct specifically required there is a breach of the obligation in question, without any other condition being required for such finding.51 The latter point is essential; in such a case it 48 49 50 51

500 U.N.T.S. 95. Case Concerning United States Diplomatic and Consular Staff in Teheran (U.S. v. Iran), 1980 I.C.J. 3, 30, paras. 61 et seq. (May 24). See supra note 24. In detail, Special Rapporteur Roberto Ago, supra note 3, at. 6, para. 7.

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is irrelevant whether, for example, the inadequate legislation has also lead to a result not in conformity with international law. For example, Article 10 of the International Covenant on Economic, Social and Cultural Rights requires that the employment of children harmful to their morals or health or dangerous to life should be punishable by law. A State Party to that Covenant not having enacted the respective legislation is liable for having breached its international obligation; the argument that no such employment existed in that country would be irrelevant. Article 12 of the ILC Articles on State Responsibility is phrased broadly enough for the task of establishing compliance or non-compliance adequately. There is also ample jurisprudence on how to establish non-compliance with the obligation of conduct. For example, in the Teheran Hostages case the ICJ scrutinized the actions or rather the non-actions of the Iranian Government in detail so as to state: that on 4 November 1979 the Iranian Government failed altogether to take any “appropriate steps” to protect the premises, staff and archives of the United States’ mission against attacks by the militants , and to take any steps either to prevent this attack or to stop it. … 52

As indicated above, the required conduct may have to be undertaken on the international as well as on the domestic level. This distinction is of significance for the role of international adjudicative bodies so far underestimated. Where the obligation has to materialize on the international level, for example, to hand over to another State certain assets, the task for the adjudicative body in question is to establish whether the obligation met is an ordinary one. Where certain actions have to be taken on the domestic level, for example to enact a certain legislation, it falls upon the adjudicative body in question to examine not only whether, as in the Teheran Hostages case, the executive measures taken conform to the international obligation but also whether legislative acts or even decisions of the judiciary are in conformity with the international obligation. This fundamentally changes the role of the international adjudicative bodies. The reasoning advanced by the ICJ in the LaGrand judgment can serve as an example where it dealt with the “procedural default rule” under national U.S. law in general and its application in the particular case from the point of view of the international obligation of the United States.53 The role to be assumed by the international court or tribunal in such cases is comparable to the one of constitutional courts or supreme courts assessing the constitutionality of inferior national law.54 D. Goal-Oriented Obligations Goal-oriented obligations have been defined above as duties of States to set into motion an evolutionary process leading into a particular direction although not to a

52 53 54

See supra note 49, at 31, para. 63. See supra note 35, at 497. See also the European Court of Justice in its Judgment of March 13, 2007, in Case C-432/05 scrutinizing the Swedish system of judicial protection.

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specifically defined or definable result. The process may be designed to be permanent without a specific result envisaged. Parts of the International Covenant on Economic, Social and Cultural Rights, 196655 may be appropriately used to exemplify this particular category of international obligations. According to Article 2, paragraph 1 of the Covenant, States Parties commit themselves to undertake to achieve step by step the full realization of all rights recognized by the Covenant. Another typical goal-oriented international obligation can be found in Article 2 of the Treaty of Friendship and Co-operation between the French Republic and the Republic of Djibouti, of 27 June 1977,56 a treaty which does not deviate significantly from other similar international agreements. Article 2 of that Treaty reads: The High Contracting Parties proclaim their firm intention of maintaining and strengthening the ties of co-operation and friendship existing between their two countries, to work towards the strengthening of peace and security, and to promote all forms of international co-operation aimed at fostering peace and cultural, economic and social progress.

Equally, the obligation entered into under Article IV of the Treaty on Amity, Economic Relations, and Consular Rights of 15 August 1955 between the United States of America and Iran57 should be qualified as goal-oriented. According to this provision the Contracting Parties are obliged to accord fair and equal treatment to nationals and companies of the other side. The ICJ dealt with the obligations under this agreement in its Judgment on the Case Concerning Certain Questions of Mutual Assistance in Criminal Matters 58 and its reasoning sheds some light on the scope and content of goal-oriented international obligations. The Court pointed out that while the provisions in the Treaty of Friendship between the two States referred to the realization of aspirations it was not bereft of legal content. These goals were to be achieved by the employment of certain procedures and institutional arrangements. From that and based upon previous jurisprudence the Court concluded that the objective of the Treaty as expressed in its Article I throws light on the interpretation of other treaty provisions as well as related treaties.59 Similar issues arose in the Case Concerning Oil Platforms.60 As can be seen from this jurisprudence, goal-oriented international obligations differ in nature and scope from other international obligations. This should not—as indicated by the General Comment to Article 2 of the Covenant on Economic, Social and Cultural Rights—be interpreted that such obligations are bereft of concrete obligations. 55 56 57 58 59 60

See supra note 13. 1482 U.N.T.S. 196. 284 U.N.T.S. 93. Djibouti v. France, Judgment of June 4, 2008. See supra note 60, at para. 109 et seq. Oil Platforms (Iran v. U.S.), 1996 I.C.J. 803, 814, para. 28.

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The task for international adjudicative bodies in respect to them comprises two functions either to concretize the obligation in a given specific case or—and that should be the more common situation—to use the goal-oriented obligation to shed light on the interpretation and application of other international rules as the ICJ has done in its Judgment on the Case Concerning Certain Questions of Mutual Assistance in Criminal Matters. E. International Obligations Addressing Natural or Juridical Persons While international law still primarily addresses States many treaties also aim to establish obligations for individuals, often in addition owed by the parties or resulting from the behavior owed by the latter. One example to that extent is to be found in Article 13 of the Protocol on Environmental Protection to the Antarctic Treaty, 1991.61 According to this provision, each Party is obliged to take “appropriate measures within its competence, including the adoption of laws and regulations, administrative actions and enforcement measures, to ensure compliance” with the Protocol. This means that the implementation and enforcement of the obligations under the Protocol rest entirely in the competence of the State Party concerned. This is so although the obligations under Annex II to the Protocol (Conservation of Antarctic Fauna and Flora) and under Annex III (Waste Disposal) evidently address individuals and not States Parties. The question that arises with respect to such a legal regime is whether the States Parties concerned owe the promulgation of the appropriate law only, or whether they are under an obligation vis-à-vis other States Parties to ensure there is no “harmful interference” with the Antarctic Fauna and Flora62 or that certain waste has to be removed from Antarctica.63 The same question arose in respect of Article 9 of the OSPAR Convention64 as Michael Reisman has pointed out. The following paragraph shows that an answer to the question can be obtained by comparing the regime to other international regimes. A somewhat different approach to the same situation—and an explicit answer to the question to what extent a result beyond the promulgation of laws is owed—is provided for in Article 139 of the U.N. Convention on the Law of the Sea (LOS)65 in combination with Article 4 of Annex III to that Convention. According to Article 139 LOS, States Parties are obliged to ensure that mining activities in the deep seabed (Area) are carried out in conformity with the legal regime governing seabed mining. While Article 4, paragraph 4, of Annex III to LOS is meant to specify the obligation under Article 139 LOS which it reiterates in its first sentence it continues to say in its second sentence:

61 62 63 64 65

See supra note 19. Art. 3 of Annex II to the Protocol on Environmental Protection, supra note 17. Arts. 1 and 2 of Annex III to the Protocol on Environmental Protection, supra note 17. See supra note 8. 1833 U.N.T.S. 3.

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A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.

The provision of Article 4, paragraph 4 of Annex III to the Law of the Sea Convention reduces the obligation of States Parties to an obligation of conduct; the State Party concerned has no liability regarding the result, namely the regime-conforming action of a contractor as long as the required laws and regulations have been adopted and the appropriate administrative measures been taken. The State concerned only owes due diligence. The reason for the difference between the approach taken under the Protocol to the Antarctic Treaty and under the Convention on the Law of the Sea is that under the latter an international mechanism exists to enforce the legal regime on deep seabed mining against contractors whereas there is no such international enforcement system under the Antarctic legal regime and—in consequence thereof—such enforcement relies on the measures taken at the national level of States Parties. In consequence, the States Parties will have to guarantee the full implementation of all the obligations private entities encounter under the Antarctic legal system. This interpretation of Article 13 of the Protocol on Environmental Protection to the Antarctic Treaty does not contradict Articles 4 to 11 of the ILC Articles on State Responsibility. This interpretation is not an attempt to construct the responsibility of a State for actions of private actors, an approach not accepted under customary international law but is the result of the fact that the treaty imposes parallel responsibilities. The private actors are under an obligation through States Parties to take certain actions or to omit taking them whereas the States Parties encounter an additional although supplementary obligation that the private actors perform as prescribed. Such interpretation is confirmed by Articles 15 and 16 of the Protocol which further specify the responsibility of the States Parties concerned. The States Parties have attempted to limit State responsibility to an obligation of conduct by adopting Annex VI to the Protocol66 dealing with liability arising from environmental emergencies. Its Article 10 promulgates: A Party shall not be liable for the failure of an operator, other than its Sate operators, to take response action to the extent that that Party took appropriate measures within its competence, including the adoption of laws and regulations, administrative actions and enforcement measures, to ensure compliance with this Annex.

Since this clause only covers part of the supplementary obligation of conduct of States Parties, States Parties remain internationally responsible if they do not live up to their general obligation of conduct to ensure that private actors respect all the obligations enshrined in the Antarctic Treaty regime.

66

See supra note 19 (not yet in force).

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There is no international jurisprudence yet dealing with these interrelated obligations of private entities and States. Certainly the obligation of the States in these cases is one of conduct which means the suitability as well as the efficiency of the measures taken on the national level would have to be assessed in the case a legal dispute arises. In that respect, the task of the adjudicative body concerned is identical to the one described in respect of assessing the implementation of obligations of conduct alone. Even where the State is not liable for every violation by private entities it may be assumed that a violation by a private entity would create a strong assumption that the national measures taken by the State concerned were not as comprehensive and efficient as required. F. Obligations of Conduct and Result The Convention on the Elimination of Racial Discrimination provides an appropriate example for an obligation of conduct as well as of result. Article 4 of this Convention promulgates: States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and rights expressly set forth in Article 5 of this convention inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin … .67

This obligation is requesting a particular conduct of States Parties to criminalize incitement to racial hatred or racially motivated violence. It is not sufficient for States Parties to argue that they do not experience racial hatred in their respective countries and therefore enacting respective provisions of penal law or modifying penal law was unnecessary. The obligation under Article 4 of the Convention is only fully complied with if the penal law of the State Party in question reflects Article 4 of the Convention. Although this may be qualified as an obligation of conduct it would not be in keeping with the objective of the Convention to reduce the obligation of States Parties to merely promulgating the appropriate criminal law. It is for that reason that the Committee on the Elimination of Racial Discrimination requested States Parties to also report about cases decided by national courts so as to find out whether the

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See General Recommendation XV on Article 4 of the Convention, adopted 1993, U.N. Doc. HRI/GEN/1/Rev.8, at 248 (May 8, 2006).

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national penal system was implemented effectively.68 That means Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination also includes an obligation of result. Contrary to the reasoning of the International Court of Justice in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide,69 obligations to prevent certain acts from happening are to be qualified as obligations of conduct as well as of result. This means in a given legal dispute that the adjudicative body would have to asses whether the State concerned has taken all the necessary steps to ensure certain actions do not happen. If such actions have nevertheless happened (for example, genocide or torture) this would not only result in a presumption that the obligations of conduct of the State concerned have been violated, but this would also mean a violation of the obligation of result. This is quite relevant in practice. Different from the reasoning of the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the approach advocated here leaves no doubt that States are under an absolute obligation to prevent genocide, torture, etc. and that the means to be employed are means to that end and are not themselves the primary objective. Certainly under such an approach a State which was unable to prevent genocide could not exonerate itself by arguing that the appropriate legislation had been enacted and that it had acted with due diligence in enforcing it. III. Conclusions The conclusions can only be tentative ones. There are ample references in international judgments and accompanying declarations or opinions to the nature of international obligations. So far, the jurisprudence of the ICJ refers to international obligations of result, those of conduct and goal-oriented obligations, the latter category not being fully developed yet. It has been argued in this contribution that it is necessary to add two further categories, namely international obligations which are, in fact, addressed to private entities (although via States) and where the States encounter supplementary responsibilities and obligations which combine obligations of result and conduct. So far, international jurisprudence does not seem to have fully developed the criteria on how to distinguish between the various types of international obligations and even less what consequences this differentiation entails for state responsibility. It is acknowledged that international obligations which do not require a specific course of conduct of the State but which are limited to achieve a specific result are characterized by a certain amount of discretion on the side of the State concerned. This discretion includes, in particular, the freedom to choose between various means 68

69

Para. 2 of General Recommendation (note 65) reads in its relevant part: “[2] The Committee recalls its general recommendation VII in which it explained that the provisions of article 4 are of a mandatory character. To satisfy these obligations, States parties have not only to enact appropriate legislation but also to ensure that it is effectively enforced. …” See supra note 11.

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available under national law of achieving the desired result.70 This means that these international obligations do not intervene as heavily into the internal affairs of States as international obligations of conduct. Nevertheless, this does not mean the view of the Special Rapporteur Roberto Ago has to be followed, that an obligation of result is inferior to one of conduct.71 It seems to be preferable to conclude that the two types of international obligations are of a different nature trying to achieve different objectives and that no hierarchy exists between the two. The Avena case72 may help to clarify whether a prescribed conduct combined with a clearly defined objective should be treated as one of conduct as in the LaGrand case or as one of result as in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons concerning Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons. Considering the jurisprudence of the of ICJ concerning the obligation to prevent genocide which was classified as one of conduct73 it not yet clear whether the Court will opt for a classification as an obligation of result, one of conduct or—as one of conduct and result as is recommended here. Anyhow, in cases where States owe a result as well as a particular conduct leading to this result care should be taken to not shift the focus from result to conduct to ameliorate the obligation of the States concerned. It should be taken into account that the role of international adjudicative bodies differs when it comes to assessing whether an obligation of result or an obligation of conduct has been complied with. Whereas in the case of an obligation of result it is only necessary to compare the anticipated situation at the given time with the actual facts, in case of an obligation of conduct it may be the task to assess whether national laws and regulations conform to what has been required by the international treaty in question. The competence can go quite far as the Judgment of the International Tribunal for the Law of the Sea proves in the Tomimaru case.74 This development entrusts international adjudicative bodies with competences similar to the ones of Supreme Courts or Constitutional Courts since they not only assess whether the wording of the required national law conforms to the international treaty in question but also whether the application of such law conforms to the international obligations. This becomes quite evident in the reasoning of the ICJ in the LaGrand case.75 The legal consequences of an internationally wrongful act are, according to Part Two of the ILC Articles on State Responsibility,76 the obligation of the responsible State to cease the wrongful conduct (Article 30) and to make full reparation for the 70

71 72 73 74 75 76

Special Rapporteur Roberto Ago, supra note 3, at 12, para. 24; without going into details, one may, in this respect, have recourse to mechanism of directives of the European Union and the jurisprudence of the European Court of Justice on that issue. Special Rapporteur Ago, supra note 3, at 8 et seq., paras. 15 et seq. See supra note 9. See supra note 30. Japan v. Russian Federation, Judgment of August 6, 2007, paras. 78 and 79. See supra note 35, at 497 et seq. See supra note 6.

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injury caused by the internationally wrongful act (Article 31). The forms of reparation are restitution, compensation and satisfaction (Article 34). The principle governing the determination of reparation for an internationally wrongful act is, as has been stated by the Permanent Court of International Justice in the Factory of Chorzów case—as reconfirmed by the ICJ frequently—that the reparation must, to the extent possible, wipe out all the consequences of the illegal act and re-establish the situation which would in all probability have existed if that act had not been committed.77 It may be safely assumed that the breach of obligations of result, of conduct, goaloriented obligations and obligations which require a particular conduct of private entities may have a bearing with respect to the form and content of reparation.

77

P.C.I.J. Series A, No. 17, at 47; Judgment of the ICJ in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 11, para. 460.

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Part III Making and Applying Human Rights Law

Chapter 21 Secession or Independence—Self-Determination and Human Rights: A Japanese View of Three Basic Issues of International Law Concerning “Taiwan” Nisuke Ando*

Several years ago, while I was serving as a member of the Human Rights Committee established under the International Covenant on Civil and Political Rights (ICCPR), one of my friends from Taiwan came to see me in Geneva, where I was attending the Committee meetings. He wanted to solicit the opinions of the Committee members on whether Taiwan may join Covenant. I introduced him to other Committee members and conveyed his request. Their opinions were unanimous: it is a political, not a legal, question. Article 48(1) of the Covenant provides: “The present Covenant is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to the present Covenant.” Taiwan, also known as the Republic of China (ROC), is not a member of the United Nations or of any of its specialized agencies. Nor is it a party to the Statute of the International Court of Justice. Finally, given the current position of the People’s Republic of China (PRC), it is highly unlikely that the General Assembly will invite Taiwan to become a party to the Covenant in the foreseeable future. So the Committee members were right to tell my friend that Taiwan’s joining the Covenant is not a legal but a political question. This essay analyzes three basic issues of international law with regard to Taiwan: first, the issue of Taiwan’s formal secession from mainland China or a declaration of Taiwan’s sovereign independence, questions pertaining to the international legal status of Taiwan; second, the issue of self-determination for Taiwan or the Taiwanese people; and third, the issue of the Taiwanese people’s human rights. To explore these

*

For twenty years, the author served as a member of the Human Rights Committee established by Part IV of the International Covenant on Civil and Political Rights. Regarding Part I, dealing with history, the author acknowledges his heavy dependence on: Is Taiwan Chinese? A History 0f Taiwanese Nationality (Hsueh Hua-yuan et al. eds., 2005).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 387-394.

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questions, the history of Taiwan will be briefly canvassed, then Taiwan’s relations with Japan will be discussed, and finally, the foregoing three issues of international law will be analyzed. The terms Taiwan and ROC will be used interchangeably, although the former tends to be used in a geographical context and the latter in a political context. I. A Brief History of Taiwan A. Down to the Ch’ing Dynasty According to a recent study by a famous Taiwanese scholar, the first reliable reference to Taiwan appears in one of the Chinese historical records: A Brief Record of the Island Barbarians, published during the Yuan (Mongolian) Dynasty (1260-1368). In this record, following the reference to the Penghu archipelago, the term Liouciou appears, which the document uses to denote the island of Taiwan. Yet while the Mongol Dynasty sometimes sent its officials to the archipelago, it never controlled Taiwan itself. That situation did not change during the Ming Dynasty (1368-1644). It is, however, recorded that Zheng He, a dynasty naval officer known for commanding a big maritime fleet that traveled in or to South East Asia, the Indian Ocean, the Persian Gulf, and even the east coast of Africa (1405-33), stopped at the port of Tainan on the island of Taiwan. From the late sixteenth to the early seventeenth century, Portuguese, followed by Spanish and Dutch, explorers found Taiwan and struggled to colonize the island. Although the Dutch ultimately won this struggle, they were kicked out of Taiwan by Zhen Chenggong’s army, which moved in from mainland China in order to reestablish the Ming Dynasty, which had been destroyed by the Ch’ing (Manchurian) Dynasty. Zhen Chenggong tried to consolidate his reign by encouraging immigration from the cross-straight regions of Fujian and Guangdong. In 1686, after his death, the Ch’ing Dynasty occupied Taiwan. The Ch’ing Dynasty further encouraged immigration from the Chinese mainland, and the whole island gradually developed industrially and economically. In 1885, the Ch’ing Dynasty separated Taiwan from the Province of Fujian to form the new Province of Taiwan. But, immediately afterward, as a result of the Sino-Japanese War of 1894-95, the Ch’ing Dynasty ceded Taiwan, including the Penghu archipelago, to Japan. B. Japanese Rule (1895-1945) Japanese rule of Taiwan took the form of direct government. A Japanese High Commissioner stood at the top of the governmental hierarchy, and all important governmental officers were dispatched from Japan. Also, Japanese occupied chief positions in local or provincial governments. The same was true of the major financial institutions of Taiwan. In addition, Japanese economic policies in Taiwan were designed to augment the Japanese economy at home: Taiwan was to export rice, sugar, tea, banana, camphor, and salt to Japan, as well as raw materials for Japanese industry. The construction of powerhouses and irrigation systems, together with the development of transportation facilities, furthered these policies. Japan faced sporadic Chinese resistance to its rule, in various forms, but military resistance ended in about 1915.

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Thus, the Japanese rule of Taiwan cannot be separated from its colonial character. At the same time, it advanced Taiwan’s modernization process. It set up an infrastructure for Taiwanese life and society by introducing uniform standards of customs regulations, a unified currency, overall land survey and land reform, residential registration, and new agricultural technology. Japan later built highways and railroads, set up postal and telecommunications services, and constructed power stations to fuel light and heavy industry. It also established a modern legal system for Taiwan, organized a local administration system, and established local assemblies. Finally, Japan introduced primary and secondary education, public health and sanitary services, and the modern calendar—developments that promoted modernization. C. ROC and Kuomintang Government (1945-1988) In August 1945, Japan accepted the Potsdam Declaration by which it surrendered to the Allied Powers, bringing World War II to an end. By the terms of the Declaration, Japanese territory was to be limited to the four main and adjacent small islands. By virtue of the Cairo Declaration of 1943, which the Potsdam Declaration incorporated, Japan was also to return Taiwan, including the Penghu archipelago, to the ROC. After Japan’s surrender, however, fighting on the Chinese mainland between the Kuomintang (KMT) army led by Chiang Kai-shek and the Communist army led by Mao Zedong resumed. In time, the latter drove the former out of the Chinese mainland and confined it to the area of Taiwan. In October 1949, Mao proclaimed the establishment of the PRC in Beijing, while the ROC moved its capital to Taipei. In Taiwan, a distinction is made between, on the one hand, “native” Taiwanese, that is, descendants of Chinese people living in Taiwan before World War II and, on the other, “newcomers,” that is, members of the KMT or their descendants. On February 28, 1947, the native Taiwanese rebelled against the newcomers, challenging the oppressive conduct of KMT. The KTM quelled the revolt by mobilizing the army. More than five thousand natives died, and many others were wounded. In 1946, the KMT adopted the ROC Constitution by a legislative council, which it had unilaterally convened, and in 1947 it chose members of the new National Assembly, the supreme state organ under the Constitution. Members of the Assembly serve for life. Chiang Kai-shek, following an election by the National Assembly, assumed the post of President, the highest executive authority. He occupied this office from 1950 until his death in 1975, and his son, Chiang Ching-kuo succeeded him, holding the office from 1978 until his death in 1988. Under the KMT, Taiwan lacked political freedom. Fearful of another revolt by the natives, the KMT suspended the Constitution, imposed martial law, and allowed no political party except itself. Hence the newcomers, who were to liberate the natives from Japanese colonial rule, proved to be as or more oppressive than the latter. D. Lee Teng-hui’s Reforms, and the Tenure of Chen Shui-bian (1988-2007) Lee Teng-hui served as vice-president during Chiang Ching-kuo tenure as Taiwan’s president. But unlike Chiang, Lee was a native. In 1987, martial law was lifted, thirty-

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eight years after it had been imposed. In 1988, following Chiang Ching-kuo’s death, Lee assumed the presidency and gradually introduced political reforms. First, in 1991, the provisional stipulation of the Constitution, which had formed the legal basis for the ROC to fight to regain control of mainland China, was abolished. At the same time, the territory of the ROC was defined as consisting of the island of Taiwan, the Penghu Archipelago, and the islands of Quemoy and Matsu. Subsequently, through amendments of the Constitution, the composition of the National Assembly and the Legislative Council was entirely reorganized so that those bodies would henceforth elect their members by direct popular vote. In 1996, the Constitution was again amended to provide for direct election of the President. In the presidential election of 2000, Chen Shui-bian was elected to succeed Lee Teng-hui. Chen belongs to Democratic Progressive Party, which leans toward favoring independence for Taiwan. Through his two-term, eight-year presidency, he further promoted the political liberalization and democratization of Taiwan. E. Ma Ying-jeou’s Policy (2008-) In 2008, the Taiwanese people elected Ma Ying-jeou, the KMT candidate, as president. Unlike his predecessor, who tended to favor independence from the PRC, Ma’s policy has been to develop closer ties (particularly economic ties) with mainland China. Yet after Li’s and Chen’s governance for over twenty years, the KMT today is not the KMT of yesterday. Ma’s political stance is characterized by his “Three No Policy,” viz.: “No independence, no unification, and no use of force!” Because the PRC has made it clear that it would use force to prevent Taiwan’s independence, the people of Taiwan seem to have chosen Ma based in part on his less hostile and more practical policy toward the PRC. His election testifies that democracy is working well in Taiwan’s current political process. II. Taiwan’s Relations with Japan Taiwan’s relationship with Japan during the era of Japanese colonial rule has been analyzed above. What follows is an analysis of that relationship during three later periods: (1) after the Japan’s defeat in World War II (1945); (2) after the Allied Peace Treaty with Japan (1951) and Japan’s Peace Treaty with the ROC (1952); and (3) subsequent to the Joint Declaration between Japan and PRC (1972). A. Japan’s Defeat in World War II (1945) As noted, Japan surrendered to the Allies in August 1945 by accepting the terms of the Potsdam Declaration. By virtue of the Declaration, Japanese territory was limited to the four main and adjacent small islands and, according to the terms of the Cairo Declaration that had been incorporated in the Potsdam Declaration, Japan was to return Taiwan and the Penghu Archipelago to the ROC. At the time of Japan’s defeat, there were large numbers of Japanese in the areas to be returned, military as well as civilian. Of those, members of the military were repatriated first, followed by the ci-

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vilians. But some of the repatriated Japanese left their property behind. Furthermore, some of those living in the areas to be returned to the ROC, in particular, natives, possessed Japanese nationality. The disposition of Japanese property and the nationality of these native Taiwanese were issues left to be settled by a prospective peace treaty between Japan and the ROC. B. Allied Peace Treaty with Japan (1951) and Japan’s Peace Treaty with the ROC (1952) The Allied Peace Treaty with Japan, which the parties signed on September 8, 1951, in San Francisco, entered into force on April 28, 1952. At the time, however, the United States had recognized the ROC’s government as representing China while the United Kingdom had decided to transfer its recognition from the ROC to the PRC. For this reason, no Chinese delegation was invited to come to San Francisco to sign the Peace Treaty with Japan, and pursuant to Article 26 of the Treaty, Japan was obligated to conclude a separate bilateral peace treaty with the ROC “on the same or substantially the same terms as provided in the present Treaty.” Hence Japan signed a peace treaty with the ROC on the same day as the Allied Peace Treaty entered into force, and this bilateral peace treaty entered into force on August 5, 1952. Japan’s peace treaty with the ROC formally declared the end of any state of war between the two states. Japan also renounced its territorial rights and claims over Taiwan and the Penghu Archipelago. Furthermore, the disposition of Japan’s and its citizens’ claims against the ROC and ROC residents in Taiwan and the Penghu Archipelago, as well as the final disposition of the ROC’s and ROC residents’ claims against Japan and Japanese citizens, was to be settled by a special agreement between the two states. The Japan-ROC peace treaty also provided that natives of Taiwan and the Penghu archipelago should be granted ROC nationality. C. PRC-Japan Joint Declaration of 1972 and Subsequent ROC-Japanese Relations Immediately after the establishment of the PRC in Beijing in 1949, the PRC contacted the United Nations and asked that Chinese representation in the organization be transferred from the ROC to the PRC. But while the issue remained under discussion in the organization, the Korean War broke out. The assistance given to the North Korean army by the so-called irregular Chinese forces militated against the PRC’s position in the United Nations. It took twenty years before the question of Chinese representation in the United Nations was finally settled. Nevertheless, with the passage of time, more and more member states of the United Nations withdrew recognition from the ROC and instead recognized the PRC. In 1971, the U.N. General Assembly likewise voted to change the Chinese representation to the PRC. This prompted Japan to change its own China policy. On September 29, 1972, the PRC and Japan concluded and published the Joint Declaration whereby Japan recognized the PRC as the sole legitimate government of China. Moreover, Japan proclaimed that it “respects and fully understands” the position of the PRC that Tai-

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wan forms an inalienable part of the PRC’s territory. At the same time, Japan “firmly maintain[ed]” its position based on “Paragraph 8 of the Potsdam Declaration.” Because that paragraph incorporated the Cairo Declaration—by which Japan returned Taiwan and the Penghu Archipelago to the ROC and renounced its claims over the areas in the 1952 Peace Treaty with the ROC, which Japan had at that time recognized as the legitimate government of China—Japan did not oblige itself to recognize that these areas came under the effective control of the PRC government. In fact, the PRC wanted Japan to “recognize” its position in the Joint Declaration. It also wanted Japan to “recognize” the 1952 Peace Treaty with the ROC as null and void. Japan rejected both of these demands and instead, as noted, merely said that it “respects and fully understands” the PRC’s position on the territorial question but “firmly maintains” its previous position on that question. The PRC also wanted to provide in the Joint Declaration, as a corollary of the invalidity of the 1952 Peace Treaty, that the Declaration would terminate the state of war between China and Japan. But Japan insisted that the state of war between the two states had already been validly terminated by the 1952 Peace Treaty. This explains why the Declaration provides that the “abnormal state” that hitherto existed between the two states would end. It should be added that the Japanese Minister of Foreign Affairs stated on the day of the Joint Declaration’s conclusion that, as of that day, the 1952 Peace Treaty would lose its significance and terminate. Subsequent to the 1972 Joint Declaration, the official relations between the ROC and Japan ended. Based on unofficial agreements, however, economic relations between Taiwan and Japan continue to this day. Hence vessels and airplanes of both sides visit sea and air ports of the other, and exchange of commodities and persons continues. Both Taiwan and Japan maintain unofficial missions in Tokyo and Taipei, respectively. In short, apart from official diplomatic relations, the relations between Taiwan and Japan continue to exist much as they did before 1972. This is the case with many other states that at some point switched their recognition from the ROC to the PRC—and yet do not “recognize,” but merely “acknowledge” or “take note of,” the PRC’s position on Taiwan. III. Some Basic Issues of International Law Concerning Taiwan As indicated in the Introduction, three specific issues concerning Taiwan will now be analyzed: those of secession or independence, self-determination, and human rights. A. Secession or Independence: International Legal Status of Taiwan Secession means the separation of part of the territory of an existing state to form a new state or accede to another existing state. While the PRC insists that Taiwan is an inalienable part of China, it has never extended its control over Taiwan, which has been, and remains, under the effective control of the ROC. In fact, more than twenty states, though not influential ones in the international community, continue to maintain diplomatic relations with the ROC, and the ROC meets three conditions of statehood in international law: it has a defined territory, a permanent popu-

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lation, and an effective government controlling that territory and population. As to the fourth condition, that is, independent management of international relations, the ROC’s competence is limited in practice by dint of the PRC’s insistence on its claim to Taiwan—a claim that is not recognized, but noted, by many other states. Thus, Taiwan’s international legal status is indeed unique and, at the same time, unsettled. This situation frustrates many Taiwanese, particularly those who favor independence. Yet, as noted, the PRC has made clear that it would prevent Taiwan’s independence even by the use of force if that were to prove necessary, and in the presidential election of 2008, the Taiwanese people chose Ma Ying-jeou in large part based on his policy in favor of closer ties with the PRC. Ma’s “Three No Policy” is not so much political as economic. That is, it seeks closer economic ties with mainland China but not political unification. Given the size of the PRC’s population and its economic power relative to Taiwan, however, closer economic ties may gradually lead to the former’s swallowing the latter. In any event, apart from the case of Taiwan, the issue of secession is a difficult one in international law. Generally speaking, both in theory and practice, the right to secede has seldom been admitted in recent times. The United Nations did not support either Katanga’s secessionist struggle from the Congo from 1960 to 1963 or Biafra’s struggle to secede from Nigeria from 1967 to 1970. Of course, this does not mean that international law always forbids secession. The birth of Bangladesh, Kosovo, and East Timor shows that international law may allow secession if the parent state seriously and systemically violates the human rights of a certain part of its population. Otherwise, most instances of secession—for example, those of the Czech Republic and Slovakia or the separation of the former Soviet republics from the Russian Federation—result from the agreement of the states concerned. The breakup of Yugoslavia gave rise to war, violence, and serious human rights atrocities. But with the help of the European Community and the United States, it also ended with agreements between the parties concerned. B. Self-Determination Whichever direction Taiwan ultimately will take, its future should be determined based on the will of the Taiwanese people in accordance with the principle of the self-determination of peoples. The principle of self-determination arguably dates back to the American Declaration of Independence or the French Revolution, and it influenced the unification of modern Italy and Germany. Woodrow Wilson also championed the principle of self-determination in his famous Fourteen Points. During the League of Nations era, however, it remained a political rather than a legal concept. Self-determination developed as an international legal principle after its incorporation into the U.N. Charter. Through the practice of the United Nations, self-determination evolved, although its scope of application and definitional content remain unclear. The principle of self-determination drove the decolonization process and helped former colonies to attain independence from former colonial powers. This is the socalled external self-determination. Subsequently, however, some have emphasized

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so-called internal self-determination. Many states include more than one racial or ethnic group, and if each group relies on the principle of external self-determination principle to form a separate state, then the situation will be unstable and may collapse into violence, as it did in the former Yugoslavia. Internal self-determination guarantees a wide range of autonomy to each ethnic group or “people” within the framework of one united state, thus realizing diversity in uniformity. This is the case in Canada, for example, where many groups of Inuit live, as well as the Francophone Québécois. The same is true in Scandinavian countries where many Samis, for example, raise reindeer. The Taiwanese people may opt for internal self-determination if secession or independence does not work. Of course, in the case of Taiwan, the racial question as such does not exist vis-à-vis the people of the Chinese mainland. Instead, there are some native or indigenous racial groups living on high-mountain areas in Taiwan, and the Taiwanese government has adopted special measures in their favor. As previously described, before Lee Teng-hui started the gradual political liberation and democratization of Taiwan, the people of Taiwan had never been given the opportunity to exercise their right to self-determination. But the presidential election of 2008 clearly proved that democracy can be managed maturely in Taiwan. In that same fashion, the people of Taiwan will at some point exercise their right to self-determination. C. Human Rights I began this essay with an anecdote about the potential for Taiwan to become a party to the ICCPR. Now, the PRC is not a party to the ICCPR, although it is a party to the International Covenant on Economic, Social and Cultural Rights. The PRC has not joined the ICCPR, perhaps, because it has adopted one-political party system in order to secure the political dictatorship of Communist Party. In my view, the essential difference between dictatorship and democracy is that, in the latter, people can work to change a policy of the government, and if the government refuses to change the policy, then people can change the government itself, all by peaceful means. In a dictatorship, in contrast, people can change the government or its policies only by the use of force! In that sense, the Taiwanese people should be proud of what they have and show the people of mainland China the virtue of democracy. They may not be able to join the ICCPR. But so long as they have a democratic system, as well as human rights equivalent to those enshrined in the Covenant, they need not join the Covenant. It must be added, however, that both in Hong Kong and Macau, the ICCPR has been applied, because it formerly applied to both the regions during their governance by the United Kingdom and Portugal, respectively—and, before taking back sovereignty over these regions, the PRC agreed to the ICCPR’s continuing application to them. A similar arrangement may be possible for Taiwan, so that it can enjoy the benefits of the Covenant, although it is not essential. What is essential is for the people of Taiwan to realize the famous phrase of Abraham Lincoln: government of the people, by the people, and for the people.

Chapter 22 Reflections on the Torture Policy of the Bush Administration (2001–2008) M. Cherif Bassiouni

Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety. —Benjamin Franklin1

The institutionalization of torture in the United States between 2001 and 2008, in violation of treaties, the Constitution, and laws which prohibit this abhorrent practice, is a blot on this nation’s history. It requires a thorough investigation of the facts that led to it and of those who developed the torture policy and carried it out in practice.2 Despite the existence of legal and political institutions that should have prevented the policy and stopped the practice, it continued for eight years. The September 11, 2001, attacks on the United States traumatized the nation. It was the first time “Fortress America” found itself vulnerable to an external attack— one that did not come from a formidable enemy like the Soviet Union in the Cold War years, with its conventional military power and array of weapons of mass destruction, but rather from a shadowy group of individuals known as “al-Qaeda,” which means “the base” in Arabic.3 1 2 3

Benjamin Franklin, Reply to Gouverneur Morris (Nov. 11, 1755), in 6 The Papers of Benjamin Franklin 238, 244 (Leonard Labaree ed., Yale Univ. Press 1963). See, M. Cherif Bassiouni, The Institutionalization of Torture by the Bush Administration (2010). The best intelligence estimates indicate that al-Qaeda consists of an organizational nucleus of roughly one hundred to two hundred operatives working primarily out of Afghanistan and Pakistan. These operatives function like a headquarters unit, which is networked with an unknown number (somewhere between ten and one hundred) of organizations and individuals located in as many as one hundred states, more than half of which may be characterized as Muslim states. That such links exist in this network does not, however, indicate that its members answer to a centralized decision-making structure. The existence of a core group, which effectively grants operational franchises to individuals

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Groups like al-Qaeda exemplify the fourth generation of warfare, which pits states and their armies against non-state actor groups and different types of individuals.4 The fourth generation of warfare is characterized by an asymmetry of military forces and raises the prospect of the defeat of Goliath by David. Al-Qaeda remains a loosely connected network whose component parts and individual sympathizers have the capacity to become operational quickly and unexpectedly. Its members are not military professionals. They generally have little or no traditional military training and lack sophisticated weapons, leaving the group as a whole with few of the characteristics of a modern, integrated military organization with a hierarchical command and control structure. Yet al-Qaeda proved that even the military might of a state such as the United States does not guarantee complete protection against violent attacks. Terrorism is ubiquitous, and its costs are low, as are the number of persons needed to carry out destructive plans. Above all, it is easy to target modern societies which are highly vulnerable. More significantly, the small groups who are likely to engage in these activities are difficult to uncover. The two separate attacks on highly symbolic targets—New York City’s Twin Towers, a symbol of U.S. economic power, and the Pentagon in Washington, D.C., the nerve center of U.S. military power were chosen to add insult to injury. Still more alarming is that the attacks were committed in broad daylight by nineteen individuals whose education and background did not make them likely suspects to flawlessly execute such a sophisticated plan.5 Also significant is the fact that the United States was proven vulnerable to a loosely organized network of individuals, followers of Osama bin Laden, a purportedly ill man hiding in the mountains that straddle the border between Afghanistan and Pakistan. From a policy perspective, the attacks of 9/11 demonstrate how easily such attacks can be carried out, as well as how difficult they are to prevent, even against the world’s militarily most powerful country. With many questions about how and why this attack occurred and was so successful, but few answers, the people of the United States grew frustrated, angry, fearful, and even vengeful. These sentiments became the driving force behind many of the decisions that followed the tragic events of September 11, 2001. Such emotions impeded rather than fostered the development of appropriate and adequate policies and responses to security threats of this magnitude. At first the Bush administration tried to place the blame for the attack on the shoulders of its predecessor, the Clinton administration. It argued that the Clinton administration’s allegedly weak responses

4

5

or groups, is believed to add value to the umbrella organization, but its network of supporters or affiliates does not transform the loosely knit network into an organization in the classic sense of that term. See, e.g., Michael Scheuer, Imperial Hubris: Why the West Is Losing The War on Terror (2003); François Burgat, Islamism in the Shadow of Al Qaeda (Patrick Hutchinson trans., 2008) (2005). William Lind, The Changing Face of War: Into the Fourth Generation, Marine Corps Gazette, Oct. 1989, at 22-26; see also John A. Lynn, Battle: A History of Combat and Culture (2004); Geoffrey Best, War and Law Since 1945 (1997). See generally The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (2004).

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to the 1998 attacks on the U.S. Embassies in Kenya and Tanzania, as well as the 2000 attack on the U.S.S. Cole in Yemen, which collectively caused hundreds of casualties, made the United States more vulnerable to future terrorist attacks. Even if this argument has some merit, the Bush administration’s subsequent policies and practices brought few improvements. Experts have faulted both administrations for their failure to focus on security and defense planning in relation to the growth of external and domestic threats by non-state actors operating outside the United States.6 The Bush administration, however, also played on the public’s fear and sought to seize more presidential powers than those the Constitution provides. Congress passed virtually all of the legislation that the administration proposed,7 and the judiciary declined to rule on the questionable constitutionality of these laws, turning a blind eye to the legal excesses of the executive branch. This pattern represents a classic form of governmental response to national crisis heightened by fear.8 The Bush administration claimed that its position was driven by the goal of avoiding past mistakes, but there was no showing of a causal connection between what was politically and legislatively done and the prevention of the perceived threatassessment of foreign and domestic terrorism attacks against the United States, its citizens and interests abroad. Instead, it appeared that senior leaders and their staff members wanted to tell the world that the United States would not be intimidated, that it would react with as much force as necessary to defend itself, that U.S. reactions would be unpredictable, and that they would be intended to deter future attacks, no matter what limitations in international or domestic law existed. This was the time, par excellence, to invoke exceptionalism, and to act accordingly. At first, the majority of the U.S. public supported the Bush administration’s policies and tactics. Those who did not were branded by the administration and its supporters as un-American or unpatriotic. True patriots, as defined by the Bush administration, were limited to those who supported the wars in Afghanistan and Iraq, as well as what President Bush called the “War on Terror.” No administration officials publicly disagreed with that conclusion, and most members of Congress expressed support for these new policies.9 The administration turned to the intelligence and military communities for new tactics, new types of warfare, rather than enhancing traditional law-enforcement and intelligence capabilities and responses to address the threats of foreign and domestic 6

7 8 9

See Richard Clarke, Against All Enemies: Inside America’s War on Torture (2004); see, e.g., M. Cherif Bassiouni, The New Wars and the Crisis of Compliance with the Law of Armed Conflict by Non-State Actors, 98 J. Crim. L. & Criminology 712-810 (2008). See, e.g., USA Patriot Act of 2001, Pub. L. 107-56, 115 Stat. 272 (2001). It was reported that this legislation was not read by most members of Congress. It is the same phenomenon that swept through Germany in 1932, leading to the 1933-1945 Nazi reign of terror. As the wisdom and effectiveness of these policies and tactics turned to failure, the mood of the nation changed, as evidenced by the rejection of torture as discussed below. See Joseph Margulies, Guantanamo and the Abuse of Presidential Power (2006).

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terrorism. It thereby shifted traditional legal controls from the civilian to the military justice system and redefined legal transgressions and abuses of power in the context of vague and ill-defined concepts of national security. Even as the U.S. military and intelligence communities assumed their new roles, actionable intelligence about al-Qaeda remained scarce. Officials concluded that intelligence needed to be obtained by interrogating prisoners captured by U.S. forces and private contractors in Afghanistan, where the Taliban had ties to al-Qaeda. The military forces in Afghanistan, however, had not been trained to distinguish Taliban operatives from ordinary citizens. Nor, because of linguistic, religious, and cultural differences, could the military readily identify enemy threats or enlist local assistance to avert them.10 This led the military to rely on, among others, Afghan warlord fighters, unreliable bounty hunters, private contractors, and others to identify potential sources of information.11 But such an approach proved ineffective and counterproductive, as it became apparent that the majority of those sent to Guantánamo had no ties to terrorism. Military and intelligence personnel, as well as private contractors, assumed that anyone fighting against the United States must have ties to the Taliban or al-Qaeda and therefore would be a potential source of reliable intelligence about these groups. The policy of the United States was guided by hubris leading to the expectation that other states should cooperate, without questions or any semblance of reciprocity.12 This one-sided approach, which sought to impose the U.S. modus operandi even on cooperative states, placed the intelligence and law-enforcement personnel of these states in a difficult position. This became evident, for example, when the United States used the air-space and ground facilities of its European allies to facilitate the unlawful practice of “extraordinary rendition,” through which the Central Intelligence Agency (CIA) kidnapped persons and then surrendered them to foreign governments for torture.13 Further problems arose because of the U.S. policy of relying on private contractors to obtain information by any means necessary, regardless 10

11

See U.N. Econ. & Soc. Council [ECOSOC], Comm’n. on Human Rights, Report of the Independent Expert on the Situation of Human Rights in Afghanistan, U.N. Doc. E/ CN.4/2005/122 (March 11, 2005) (M. Cherif Bassiouni). Nothing is more telling than the contents of a CIA flyer which was distributed in the Pashto region, overlapping Afghanistan and Pakistan, which was translated as stating: Get wealth and power beyond your dreams … You can receive millions of dollars helping the anti-Taliban forces catch al-Qaida and Taliban murderers. This is enough money to take care of your family, your village, your tribe, for the rest of your life. Pay for livestock and doctors and schoolbooks and housing for all your people.

12 13

Mark Denbeaux, Joshua Denbeaux, The Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data 2 (Seton Hall University School of Law, 2006). See, e.g., Chalmers Johnson, The Sorrows of Empire (2004); Philippe Sands, Lawless World (2004). See generally Leila Nadya Sadat, Extraordinary Rendition, Torture and Other Nightmares from the War on Terror, 75 Geo. Wash. L. Rev. 1200 (2007); Jane Mayer, The Dark Side (2009). See also Eur. Parl., Report on the Alleged Use of European Countries

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of the reliability or efficacy of those means.14 These practices violated the U.S. commitment to the rule of law and diminished the moral standing of the United States at home and abroad. Between 2002 and 2004, the highly charged political and emotional climate within the United States left little room for reasoned legal discourse. Afghan enemies in the field were not given privileged combatant status under the Geneva Conventions, and Afghan civilians were not treated as protected persons. The prevailing view in the United States was that in times of war, legal niceties are difficult and less important to preserve. Yet this misguided notion was the exact opposite of the values that the United States in fact needed to respect during this type of conflict—for maintaining legitimacy is a critical factor in achieving victory.15 The U.S. courts, including the Supreme Court, were slow and even timid in their responses to abuses of the rule of law. In time, the Supreme Court addressed this imbalance in cases such as Rasul,16 Hamdan,17 and Boumediene,18 the latter with a bare majority and with strongly worded dissents. Hence the legal battle in the Supreme Court for the restoration of the rule of law concluded, not with a bang, but a whimper. The policy established at the highest levels of government was to obtain results within as short a period of time as possible. The rationale was that the perceived dangers did not allow officials the luxury of acting within the established boundaries of the law. “Enhanced interrogation techniques” were seen as appropriate and indispensable to national security, irrespective of their legality.19 President Bush and Vice-President Cheney thus approved of government lawyers, as well as intelligence and military specialists, who sought ways to achieve U.S. security goals as quickly and as efficiently as possible.20 Presumably, they—and those who gave effect to the administration’s policies—believed that they could skirt the legal prohibition of torture

14

15

16 17 18 19 20

by the CIA for the Transportation and Illegal Detention of Prisoners, Eur. Parl. Rep. A60020/2007 (Jan. 30, 2007); Ronald Kessler, The CIA at War (2003) See Jordan J. Paust, Beyond the Law 29 (2007). A previously secret CIA memo, uncovered during a CIA civilian contractor’s prosecution, created three exceptions for CIA personnel to use restraints prohibited by the Geneva Conventions. Priti Patel, A Wider Torture Loophole?, L.A. Times, Aug. 18, 2006, at B11. See M. Cherif Bassiouni, Legal Control of International Terrorism, 43 Harv. Int’l L.J. 83 (2002); M. Cherif Bassiouni, “Terrorism”: Reflections on Legitimacy and Policy Considerations, in Values and Violence: Intangible Aspects of Terrorism 233 (Ibrahim A. Karawan, Wayne McCormack, & Stephen E. Reynolds eds., 2009). Rasul v. Bush, 542 U.S. 466 (2004). Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Boumediene v. Bush, 128 S. Ct. 2229 (2008). See, e.g., Mayer, supra note 13; Bassiouni, The Institutionalization of Torture, supra note 2, at Ch. 2. See Philippe Sands, Torture Team (2008).

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as defined under international humanitarian law,21 the Convention Against Torture (CAT),22 and domestic U.S. laws.23 Nevertheless, actions fell short of the presumed good intentions. The U.S. military and intelligence agencies involved embarked on both a domestic and worldwide program to obtain information from those who they indiscriminately labeled “terrorists.” A wide net was cast, irrespective of what it would catch. Experience indicates that this is not the way to secure reliable or actionable intelligence. As the administration’s policy evolved, the circle of actors widened. It included government lawyers from the White House, the Department of Defense (DoD), the Department of Justice (DoJ), and the CIA. Their legal efforts were aimed at avoiding international and U.S. law, but there is no escaping the conclusion that the avoidance they sought looked more like evasion of the law, a distinction that many court decisions have drawn in criminal conspiracy and other criminal cases. The Canons of Ethics of the American Bar Association24 and those of every state bar association prohibit members of the Bar from purposefully advising their clients to evade the law or give legal advice that is known or reasonably believed to violate the law. The legal standard in all of these professional ethics cases is whether the reasonable, prudent lawyer should have known that any given advice was or could have been in violation of the law or the Canons of Ethics. There had to be a point in time at which it became apparent to these government lawyers that their legal opinions on interrogations, whether they be in connection with prisoners of war or civilians in U.S. custody, at home or abroad, were unlawful under international and domestic law. As the snowball came down from the White House mountain, it became an avalanche. The snowball process began at the White House, and, in particular, from the Office of the Vice-President. The Secretary of Defense augmented it, using the DoD’s General Counsel, who had previously served as the Vice-President’s Chief of Staff.25 The Judge Advocate General’s Corps (JAG) and some uniformed military personnel sought to slow it down by raising valid legal arguments and objections but to no avail.26 These officers were subjected to command pressures and were often mar21

22 23 24 25 26

See M. Cherif Bassiouni, A Manual on International Humanitarian Law and Arms Control Agreements (2000); Adam Roberts & Richard Guelff, Documents on the Law of War (1982). Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 19, Dec. 10, 1984, 1465 U.N.T.S. 85. 18 U.S.C. § 2340 (2006). See also Model Rules of Prof. Conduct R. 1.2(d) (2006); Bassiouni, supra note 2, ch. 5. See Sands, supra note 20; Barton Gellman, Angler (2008); The Torture Papers: The Road to Abu Ghraib (Karen J. Greenburg & Joshua L. Dratel eds., 2005). See Memorandum from Maj. Gen. Thomas Romig, U.S. Army, for Gen. Counsel of the Dep’t of the Air Force, Subject: Draft Report and Recommendations of the Working Group to Assess the Legal, Policy and Operational Issues Relating to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (Mar. 3, 2003), reprinted in 109 Cong. Rec. S8794 (July 25, 2005) (statement of Sen. Graham); see also Memoran-

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ginalized—and their objections circumvented—by the civilian political appointees at the DoD. One after another, the senior JAGs and others who opposed the practice of torture were retired or marginalized. Command influence emanated from the highest DoD levels, and senior civilian political appointees in the DoD blatantly used their influence to carry out the new torture policy and to silence or bypass those who opposed it. The general climate became saturated with real or purported career incentives and disincentives, and all-too-many uniformed military personnel wound up looking the other way. The trickle-down effect of the Bush administration’s policy manifested what social psychologists refer to as the “Lucifer Effect.”27 It engendered compliance by those in the military and the CIA, regardless of the moral and legal implications raised by the policy and practice of torture.28 The DoJ’s Office of Legal Counsel was enlisted to provide legal opinions designed to give legal protection to all those in government who carried out the policy and practices established by the White House, the Secretary of Defense, and the Director of the CIA.29 With the legal cover of the DoJ and executive privilege, the policy trickled downward: torture became institutionalized. Those who initiated the Bush administration’s torture policy must have felt secure in the protective claims of presidential power and executive privilege, while others at the highest levels of government probably believed they could rely on plausible deniability by, among other techniques, shifting responsibility to their subordinates. Despite the subsequent public exposure at Abu Ghraib and Guantánamo, as well as the revelations of “extraordinary renditions” and legal “black sites,” responsibility did not reach up the chain of command to senior officers and to the civilian political leaders who initiated the policy and encouraged the practices. Instead, the blatant practices of torture at Abu Ghraib were blamed on a small number of soldiers and non-commissioned officers, who were described by the political and military elite as anomalies—a few “bad apples.” At any rate, the bare handful of personnel involved in torture who were charged saw their cases dismissed or received light, mostly administrative, sentences. No officers were charged in courts martial with any of these crimes; damage was contained by ensuring that blame remained confined to the lowest ranks.

27 28

29

dum from Admiral Michael Lohr, U.S. Navy, for the Air Force Gen. Counsel, Subject: Comments on the March 6, 2003 Detainee Interrogation Working Group Report (Mar. 13, 2003), reprinted in 109 Cong. Rec. S8794 (July 25, 2005) (statement of Sen. Graham). See also Karen J. Greenberg, The Least Worst Place: Guantanamo’s First 100 Days (2009). Philip Zimbardo, The Lucifer Effect: How Good People Turn Evil (2007). The CIA followed another pattern, which resulted in their so-called policy of “extraordinary rendition,” whereby other states carried out torture as a proxy for the United States. CIA agents were also implicated in torture during the course of secret flights to locations called “black sites.” See Ronald Kessler, The CIA At War (2003); Jane Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Program, The New Yorker (Feb. 8, 2005). See The Torture Papers, supra note 25; Sands, supra note 20.

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Vice-President Dick Cheney described torture, extraordinary rendition, and other practices inspired by primitive responses to terrorism, euphemistically, as “going to the dark side”:30 terrorizing those who would want to terrorize us. Yet he and others in the Bush administration either forgot or ignored that the moral character of this nation is founded on the rule of law and therefore could not survive long on that “dark side.” Ultimately, the United States rejected the policies and practices that reflected this dark side of human nature. Shortly after his election, for example, President Obama issued an executive order to close Guantánamo.31 Academics, jurists, writers, military lawyers, and so many others throughout the nation expressed their denunciations and condemnations of the policies and practices of torture in Guantánamo, Afghanistan, Iraq, the off-shore “black sites,” and the proxy countries (to which the United States rendered detainees) notorious for their systematic and widespread practices of torture against their own citizens.32 But the policies and practices remained in place through 2008, even though some were more selectively applied and better concealed from the public eye. The original DoJ position was subsequently reversed,33 though there is still an executive order relevant to these issues that remains classified. It may well authorize the CIA’s “extraordinary rendition” program and legal “black sites.” If so, that executive order may turn out to be the smoking gun pointing to President Bush’s command responsibility. The public exposure and worldwide denunciation of the torture practices at Abu Ghraib and Guantánamo, and comparable condemnation of the acts conducted as part of the CIA’s “extraordinary rendition” program and maintenance of legal “black sites,” discredited the United States worldwide and deprived it of the moral high ground it had occupied since World War II as the champion of human rights. The United States also lost the world’s sympathy, which it had enjoyed immediately after 9/11. More significantly, the Bush administration violated the Constitution and laws of the United States; military personnel violated the Uniform Code of Military Justice; private contractors committed crimes under both Title 18 and Title 10 of the U.S. Code; and the United States violated international humanitarian law and the CAT. Not only did the United States lose the moral high ground, it also lost on practical grounds. The information U.S. officials obtained by torture, according to many accounts, could have been obtained by lawful means and is in any event of limited significance, although admittedly no one will ever know its value with absolute cer-

30 31

32 33

Interview of Dick Cheney, NBC News’ Meet the Press (NBC television broadcast Sept. 16, 2001); see also Gellman, supra note 25; Michael Ignatieff, The Lesser Evil (2005). See Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 27, 2009). It should be noted that as of June 2010, Guantánamo remains open, and the Obama Administration remains mired in politics surrounding its closure. See, e.g., Symposium, Terrorism on Trial, supra note 2. See also Bassiouni, supra note 2, ch. 4. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush administration (2007).

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tainty.34 But even were there some intelligence value to it, it lacks evidentiary value in legal proceedings, for evidence obtained by coercion is legally inadmissible under the Fifth Amendment to the Constitution. Some die-hard supporters of torture argue that the absence of a terrorist attack on U.S. soil since 9/11 supports the theory that torture “works.” This argument is redolent of the kind of absurd psychology reflected in the following colloquy: Q:

Did you know that elephants hide in cherry trees?

A:

No.

Q:

That proves that their hiding works: if you don’t see elephants in cherry trees, it must be because they are well hidden.

By the same flawed logic, the absence of a terrorist attack on U.S. soil since 9/11 proves that torture works. Surprisingly, between 2001 and 2008, few in the government gave much thought to what could happen to a member of the U.S. armed forces or a civilian citizen in the hands of an enemy who would apply the same “enhanced interrogation techniques” the United States had declared lawful. If this ever happened, how could the United States appeal to others on the basis of international law or morality? It is hard to conceive of good faith being preserved by senior officials and government lawyers throughout the course of almost seven years in the face of so many concerns raised by legal experts and others about the policy and abhorrent practice of torture. Yet, among their ranks, few made their change of heart, assuming they experienced one, public.35 Most of them did not. As Sophocles wisely put it in Antigone: “All men make mistakes, but a good man yields when he knows his course is wrong and he repairs the evil.”36 The climate of ideological machismo, the sense of anger and frustration, and the inducement of career reward, coupled with the implicit coercion of career harm, all contributed to overtake the good judgment of many public officials. But even more significantly, all of this occurred in the face of an enormous vacuum: the general public’s indifference. Worse yet, a segment of the population supported (and still does support) the policy, irrespective of its actual results. As in so many cases throughout history, a combination of public indifference, dehumanization of the enemy, disregard for the Biblical “Golden Rule,” neglect of the rule of law, the condoning of abuses of power, the “banality of evil,” and acquiescent public combined to enable the Bush administration’s torture policy and practice.37 Surely few can dismiss the Holocaust as only an aberration perpetrated by a few Nazi Germans. It was the product of all that is mentioned above. The same occurred 34 35 36 37

See, e.g., Yuval Ginbar, Why Not Torture Terrorists (2008). See Goldsmith, supra note 33. Sophocles, Antigone (Paul Moliken ed. & J.E. Thomas trans., 2005). See Hannah Arendt, The Banality of Evil (1998).

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in the terrible and tragic period of the Soviet Union’s Leninist/Stalinist regimes, which lasted from 1917 to the 1960s. As Solzhenitsyn wrote of the latter in the Gulag Archipelago: We have to condemn publicly the very idea that some people have the right to repress others. In keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations. It is for this reason, and not because of the “weakness of indoctrinational work,” that they are growing up “indifferent.” Young people are acquiring the conviction that foul deeds are never punished on earth, that they always bring prosperity. 38

Curiously, and this may be unique in the annals of the history of abuse of power, it was not the military who initiated these abuses in the Bush administration; rather, it was some among the military who tried to stop it.39 Conversely, it was a group of politically elected and appointed civilian officials, with the aid of cherry-picked government lawyers, all of whom swore an oath to uphold the Constitution and laws of the United States, who caused the commission of these crimes.40 These officials wielded such extraordinary power and influence as to sweep this nation into an illegal and immoral practice that is a blot on U.S. history. But congressional acquiescence and public indifference were also required to make it possible. Congress, which has a constitutional duty to provide the checks and balances against executive abuses of power, looked the other way. The bar associations of this country and their members, who should have been the vanguard of opposition to these practices, were, with few 38 39

40

Aleksandr I. Solzhenitsyn, The Gulag Archipelago: An Experiment in Literary Investigation 177-78 (1973). See, supra note 26; see also e.g., Memorandum from Col. Donald Richburg, U.S. Air Force, for U.N. and Multilateral Affairs Division (J-5), Joint Staff (Attn: CDR Lippold), Subject: Counter-resistance techniques (Nov. 4, 2002); AF Planner Joint Action Brief Sheet from Thomas Randall, Subject: Counter-Resistance Techniques (Nov. 1, 2002); Memorandum from Major Sam McCahon, Chief Legal Advisor, through Division Chief, Plans, Policy and Integration, Subject: Assessment of JTF-170 Counter-Resistance Strategies and the Potential Impact on CITF Mission and Personnel (Nov. 4, 2002); Memorandum from Alberto Mora, Dep’t of Navy Gen. Counsel, for Inspector General, Dep’t of Navy, Subject: Statement for the Record: Office of General Counsel Involvement in Interrogation Issues (July 7, 2004). During the Nazi regime, government lawyers and judges found legal arguments to justify the abhorrent abuses of Jews, gypsies, and others. The United States chose to prosecute them in International Military Tribunal (Nuremberg) proceedings in United States v. Alstoetter, also known as the “Justice Case.” Similarly, the United States prosecuted the Nazi doctors for their unlawful human exterminations in United States v. Brandt. See The Nazi Doctors and the Nuremberg Code (George J. Annas & Michael A. Grodin eds., 1995). In both cases, U.S. judges held that the ethics of both the legal and medical professions bound these professionals not to engage in these unlawful practices.

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exceptions, surprisingly quiet. As President Kennedy paraphrased Dante’s Inferno: “The hottest places in hell are reserved for those who, in a time of great moral crisis, maintain their neutrality.”41 Indeed, there can be no neutrality in the face of the moral evil and illegality of torture. On January 22, 2009, recognizing the wrongfulness of the policy and its practices, President Obama, in his first week in office, issued executive orders to close Guantánamo and to require obedience to the interrogation practices specified in the Army Field Manual on Interrogation.42 On April 9, 2009, CIA Director Leon Panetta likewise ordered his subordinates to close down “black sites” and instructed all CIA personnel to conform their practices to the Army Field Manual.43 To paraphrase Winston Churchill, the United States will almost always end up doing the right thing, but only after exhausting all the other alternatives. We have now almost exhausted all the other alternatives in connection with the unlawful policy and practices of torture, and it is time to do the right thing—namely, to record what occurred; to prosecute those who committed crimes, including the leaders who initiated the policy and the lawyers who breached the public trust by distorting the law to justify that policy; and to establish a mechanism that will prevent the recurrence of similar abuses of power by the executive branch. One writer has suggested implementing a two-part solution: using investigative commissions to establish a full and accurate historical record and formally prosecuting officials through an executiveappointed special prosecutor.44 In the years I spent investigating international crimes and human rights violations in the former Yugoslavia, Afghanistan, Iraq, and Palestine, I have come into contact with many torture victims. Most of them were devastated, no longer functioning at a healthy human level, and wrestling with an unending inner torment. But through many of them, I also saw the sublime qualities of human nature: the determination of love, the fierceness of moral clarity, the quietness of courage, the indivisibility of integrity, the stubbornness of purpose, the timelessness of hope, the simplicity of truth, the uncompromising quest for justice, and the wholeness of generosity. We owe it to the victims and their families—and, indeed, to all humanity—to bring these atrocities to light and to bring their perpetrators to justice. In so doing, we may, as George Santayana encouraged us to do, learn from our mistakes so that we shan’t repeat them again.45

41 42 43 44 45

Pub. Papers: John F. Kennedy 503 (1963). Exec. Order No. 13,491, supra note 31. See Randall Mikkelsen, CIA Says Shuttering Detention Black Sites, Reuters, Apr. 9, 2009. Scott Horton, Justice After Bush: Prosecuting an Outlaw Administration, Harper’s, Dec. 2008, at 49, 56. George Santayana, The Life of Reason (Prometheus Books 1998) (1905).

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Chapter 23 Waivers in International and European Human Rights Law Lucius Caflisch

I. Waivers as a Legal Tool A waiver may be loosely defined as a legal device allowing a subject of law to give up a right allegedly owned by that subject (renonciation in French and Verzicht in German).1 As such, it may be assumed to be in the nature of a “general principle of law recognized by civilized nations.”2 A waiver will thus enable a person to forego a right—but not an obligation3—in accordance with the conditions set by the applicable law. The concept of waiver comes close to that of recognition, as a sort of renunciation to contest a legal situation. Two types of waivers may be distinguished.4 Waivers may be “abdicative”: the right waived will lapse without passing on to anyone. They may also be “translative”: the right waived by its owner is passed on to another subject with the latter’s acquiescence. It may be argued that such transferrals are contractual in character as the operation requires acceptance by the person to whom the right is being transferred: the subject waiving the right extends an offer, and the prospective transferee accepts it, which gives the transaction a contractual coloration. Among the conditions generally required for waivers, three may be singled out at this initial stage: (1) the right in question must belong to the person intending to waive it; (2) that person’s will to waive the right must be unequivocal; (3) the waiver may be unconditional or conditional, the latter suggesting, once again, that the operation has a contractual flavor; and (4) if there is a beneficiary, he/she must be apprised of the waiver and not oppose it.

1 2 3

4

“The voluntary relinquishment or abandonment—express or implicit—of a legal right or advantage.” Black’s Law Dictionary 1611 (8th ed. 2004). Statute of the International Court of Justice (ICJ), article 38(1)(c). If obligations could be waived, this would mean that legal duties may be freely shirked by those who owe them. Arrigo Cavaglieri, Règles générales du droit de la paix, 26 Recueil des Cours 311, 517-18 (1929-I). Erik Suy, Les actes juridiques unilatéraux en droit international public 183 (1962).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp.407-431.

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Regarding their effect, waivers must, from the moment at which they have been made public or become known to their beneficiaries, be regarded as definitive—always assuming that they have been effected in conformity with the applicable law— except, of course, if they are conditional and if the conditions have not or not yet been met, or if their withdrawal has been agreed to by the beneficiary.5 Both types of waivers are connected with the principle of good faith. They must, in this writer’s view, be distinguished from estoppel. This view finds support in the Temple of Preah Vihear case to be discussed later.6 Waivers are the result of international—not necessarily explicit—normative action, which, if validly performed, results in the cancellation of a right by its owner. As they result in the disappearance of rights, waivers are actions that clearly go to the substance. Estoppel, by contrast, is a procedural device: a subject may no longer present a claim if, through his/her behavior, another subject has been prompted to act in a way prejudicial to his/her interest. It is tempting to argue that valid waivers automatically produce an estoppel. This would not seem to be the case, however. While waivers may cancel substantive rights, regardless of the reaction of others, an estoppel arises from the attitude of a subject waiving a right followed by a reaction of another subject detrimental to his/her interest and triggered by the attitude of the waiving subject. This leads to the conclusion that while the effects of waivers and estoppel are similar—the right in issue can no longer be claimed—the conditions for their existence are not. On the one hand, conduct not qualifying as a waiver may produce an estoppel; on the other hand, if a waiver does not incite another party to act in a manner detrimental to his/her own interest, no estoppel will ensue. The present contribution will begin by examining waivers in the field of general international law; this will include waivers of rights by States and intergovernmental organizations vis-à-vis other States or organizations and also by foreign individuals whose assets are protected by bilateral investment treaties (BIT). A second part will deal with the case-law of the European Court of Human Rights (ECtHR) regarding the waiver, by individuals, of rights protected by the European Convention on Human Rights (ECHR) and the Additional Protocols thereto. II. Waivers in General International Law A. Analysis A first point to be made is that the concept of waiver, tentatively described above, is applicable in the framework of general international law, as will be shown below. According to some authors, a distinction should be drawn between “abdicative” and “translative” waivers. The former result from the will of one subject of international law to forego a right without transferring it to anyone in particular. The subject in question may be a single State or organisation, or a group, for instance a series of States renouncing the pos5 6

On withdrawal, see Vladimir D. Degan, Sources of International Law 324 (1997). 1962 I.C.J. 6 (June 15).

23 Lucius Caflisch, Waivers in International and European Human Rights Law

sibility of resorting to war “as an instrument of national policy,” as was done in the Kellogg-Briand Treaty of 27 August 1928.7 This “abdicative” waiver is conventional in nature in that it applies between the States Parties to the Treaty. In other words, “abdicative” waivers may be generated by both unilateral and conventional undertakings, as is also illustrated, for example, by Article 23 of the 1947 Peace Treaty with Italy,8 in which the latter renounces her territorial rights and possessions in Africa. “Translative” waivers involve the abandonment, by one or several subjects of international law, of a right or rights for the benefit of one or several other subjects, and their acceptance by the latter. In Article 119 of the Versailles Treaty,9 Germany abandoned her overseas possessions to the Principal Allied and Associated Powers. In another provision, Article 33, she waived her rights to the Belgian territory of Moresnet.10 These waivers occurred in a treaty context and depended on their “implied” acceptance by the beneficiaries. Accordingly, these renunciations are in the nature of conventional transfers rather than of “waivers,” being, technically, offers to conclude an agreement.11 B. Practice 1. Treaty Practice 12 As an author has observed, waivers are routinely included in peace treaties and in treaties governing the sovereign immunity of States. There also exists a negative form, “non-waivers,” witness Article XIX of the Treaty for Amazonian Cooperation of July 3, 197813 which provides: [n]either the signing of this Treaty nor its execution shall have any effect on any other international treaties in force nor on any differences with regard to limits or territorial rights which may exist between the Parties, nor shall the signing or implementation of this Treaty be interpreted or invoked to imply acceptance or renunciation, affirmation or modification,

7 8 9 10 11 12

13

94 L.N.T.S. 57. 49 U.N.T.S. 3. 225 Consol. T.S. 189. See also Renonciation, in Dictionnaire de droit international public 968, 969 (Jean Salmon ed., 2001). Suy, supra note 4. Anne Trebilcock, Waiver, in 4 Encyclopedia of Public International Law 1327, 1328 (Rudolf Bernhardt ed., 2000), who also mentions Article 4.1 of the Antarctic Treaty of December 1, 1959, 402 U.N.T.S. 71. Under that provision, nothing in the Treaty shall be construed as a renunciation of previously asserted rights or of claims to territorial sovereignty in Antarctica nor as prejudicing the recognition or non-recognition of such rights or claims. On waivers, see also, most recently, Isabel Feichtner, Waiver, in Max Planck Encyclopedia of Public International Law, available at http://www. mpepil.com/. 17 I.L.M. 1045 (1978).

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direct or indirect, express or tacit, of the position or interpretation that each Contracting Party may hold on these matters. [Emphasis added.]

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Waiver clauses are common in multilateral conventions on sovereign immunity and on diplomatic or consular immunities of States. Thus, the member States of the United Nations are duty-bound, under Article IV, Section 14 of the Convention on the Privileges and Immunities of the United Nations of February 13, 1946,14 to waive immunity in cases where, in the opinion of the member States, it would obstruct the course of justice and can be disregarded without prejudice to the purpose pursued by it. Article 32 of the 1961 Vienna Convention on Diplomatic Relations of April 18, 196115 provides that the sending State may waive the immunity of its diplomatic agents and of other persons enjoying immunity, such a waiver having to be “express,” and Article 45 of the Vienna Convention on Consular Relations of April 24, 1963,16 does the same for members of consular posts. Turning now to sovereign immunity,17 the European Convention on State Immunity concluded at Basle (Switzerland) on May 16, 1972,18 uses the term “waiver” only once but contains provisions materially to the same effect: immunity does not apply if the State concerned has made a counter-claim (Article 1), if it has accepted local jurisdiction by international agreement, by express consent given in a written contract, or after the dispute arose (Article 2), or if it has acted on the merits prior to claiming immunity (Article 3). The verb “waive” appears in Article 3(2), according to which “[a] Contracting State is not deemed to have waived immunity if it appears before a court of another Contracting State in order to assert immunity.” The same reluctance to use the verb “waive” characterizes the United Nations Convention on Jurisdictional Immunity of States and Their Property, of December 2, 2004,19 an instrument that closely resembles the Basle Convention. Here, the waiver of immunity by a State is designated by the term “consent.” Under Article 7(1), a State cannot claim immunity from suit in the courts of another State if it has expressly consented to the exercise of jurisdiction … (a) by international agreement; (b) in a written contract; or (c) by a declaration before the [local] court or by a written communication in a specific proceeding.

14 15 16 17

18 19

1 U.N.T.S. 15. 500 U.N.T.S. 35. 596 U.N.T.S.261. On this issue generally, see Susan Breau, Waiver of Immunity, in State Practice Regarding State Immunities 59-68 (Gerhard Hafner, Marcelo G. Kohen & Susan Breau eds., 2006). Europ. T.S. No. 74. 2 United Nations, The Work of the International Law Commission 284 (7th ed. 2007).

23 Lucius Caflisch, Waivers in International and European Human Rights Law

Consent is equally deemed to have been given when the State concerned takes an effective part in the proceedings—except when it does so for the simple purpose of invoking immunity (Article 8)—or when it makes a counter-claim (Article 9(3)). Regarding immunity from execution, a question also addressed in the 2004 Convention, such immunity protects a State unless the latter has “expressly consented” to “measures of constraint” by international agreement, by arbitration agreement or by written communication in the framework of specific proceedings (Articles 18 and 19(a)). Consent to jurisdiction does not imply consent to measures of constraint (Article 20). Another practical instance relating to waivers is contributed by Article 20 of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts.20 That provision, which has been or may be regarded as a codification of customary law, prescribes that: [v]alid consent by the State to the commission of a given act by another State precludes the wrongfulness of that act in relation to that former State to the extent that the act remains within the limits of that consent.

The idea behind this text is that a State may agree, ex ante or ex post, to the commission of an internationally wrongful act and thereby waive the right to claim reparation for that act. A similar provision is being included in Article 17 of the Commission’s Draft Articles on the Responsibility of International Organizations, which presently reads as follows: Valid consent by a State or an international organization to the commission of a given act by wrongfulness of that act in relation to that State or the former organization to the extent that the act remains within the limits of that consent.

According to draft commentary (4) on the above provision, the term “validity” refers to matters addressed by international rules outside the framework of State responsibility, such as whether the agent or person who gave the consent was authorized to do so on behalf of the State or international organization, or whether the consent was vitiated by coercion or some other factor.21

Unfortunately, this text does not spell out what precisely is meant by “consent,” that is, waiver, nor does it specify the conditions that must be met for such consent. To conclude the present sub-heading on treaty practice, attention should be drawn to proceedings pending before international courts or tribunals where parties to them fail to assert their claims or objections within the prescribed time-limit. Such 20 21

1 id. at 365. Official Records of the General Assembly, 61st sess., Supp. No. 10, U.N. Doc. A/61/10, at 265 (internal quotation marks omitted).

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claims may, according to one author, be considered as waived.22 This is debatable, however, and would seem to depend, inter alia, on whether the State alleged to have waived its right really intended to do so, and that, failing clear indications, depends on the surrounding circumstances. This specific question is to be distinguished from the wider issue of discontinuance which is governed, in the framework of the International Court of Justice, by Articles 88 and 89 of the Court’s Rules. Discontinuance may result from an agreement between the parties; and, if that agreement is reached on the basis of a friendly settlement, the latter may be appended to the order for the removal of the case from the Court’s list (Article 88). Discontinuance may also result, in proceedings instituted by means of an application, from written information on the part of the applicant State that it will not go on with the case, as long as this information is given before the respondent has taken any procedural steps (Article 89). In the context of Article 88, there is an agreed waiver, in that of Article 89 a unilateral one. The waiver ends the proceedings but not the action, nor the right on which the action is founded, unless clearly stated otherwise.23 2. Case Law The Permanent Court of International Justice (PCIJ) was involved in two instances involving problems of waiver. In the Serbian Loans case,24 which concerned loan agreements between the Kingdom of the Serbs, Croats and Slovenes and French bondholders, the agreements contained a gold clause. The respondent State argued that, by accepting the payment of interest in French rather than in Gold francs, the bondholders had shown that they were prepared to accept payment in French francs, thereby renouncing the strict terms of the loan. This, according to the Kingdom, meant that the creditors were estopped from demanding payment in accordance with those terms. On this point the PCIJ stated: [W]hen the requirements of the principle of estoppel to establish a loss of right are considered, it is quite clear that no sufficient basis has been shown for applying the principle in this case. There has been no clear and unequivocal representation of the bondholders upon which the debtor State was entitled to rely and has relied.25

In other words: in the absence of a clear representation there is no estoppel. It will be noted, here, that the alleged waiver emanated, not from the claimant State as such, but from the French bondholders who had been granted diplomatic protection. But, since the rights claimed by means of diplomatic protection are based on those belonging to the protected individuals, it seems obvious that, had a waiver on the part

22 23 24 25

Trebilcock, supra note 12, at 1328. On these points, cf. Suy, supra note 4, at 169-82. 1929 P.C.I.J. (ser. A) No. 20. Id. at 39.

23 Lucius Caflisch, Waivers in International and European Human Rights Law

of the individuals been established, it would have adversely affected France’s claim.26 This would be true, a fortiori, in cases where the individual alleged to have waived a right is entitled to present a claim on the international level directly, without the intermediary of diplomatic protection. The case referred to above further shows that, in order to qualify as a waiver, a statement or conduct must be unequivocal though not necessarily express. A second relevant case was that relating to the Legal Status of Eastern Greenland.27 Claiming sovereignty over the whole of Greenland, including its Eastern part, and challenging a Norwegian Royal Decree of July 10, 1931 to the contrary effect, Denmark contended, inter alia, that she had always held sovereignty over the whole of Greenland. Some years prior to the proceedings before the Court, Denmark had addressed notes to various States asking for recognition of her claim. According to Norway, this quest for recognition resulted in a waiver of Denmark’s claim that she had always held sovereignty over the whole of Greenland. The Permanent Court rejected the argument and found that Norway’s thesis was neither a necessary nor the right interpretation of the notes addressed by Denmark to the various powers. The notes’ objective was, according to the Court, “to ensure that those Powers would not attempt themselves to take possession of any non-colonized part of Greenland”;28 “[t]he method of achieving this was to get the Powers to recognize an existing state of fact.”29 The Court thus found that [i]n these circumstances, there can be no ground for holding that, by the attitude which the Danish Government adopted, it admitted that it possessed no sovereignty over the uncolonized part of Greenland, nor for holding that it is estopped from claiming, as it claims in the present case, that Denmark possesses an old established sovereignty over all Greenland.30

The above cases, and their solution, certainly bear out the proposition that, to be constitutive of estoppel, waivers must be clear and evident as to their purpose and content, on the basis of the surrounding circumstances. They also show, of course, that waivers need not be explicit. The next item to be considered are the public declarations made by the French authorities that there would be no further atmospheric nuclear tests. These declarations were made at the time when the International Court of Justice was examining the Nuclear Tests cases brought before it by Australia and New Zealand.31 After the Court had asserted jurisdiction, it found that on their merits the two cases had be26

27 28 29 30 31

This situation is to be distinguished from those arising in the presence of Calvo clauses, where the waiver of remedies has been held to operate on the domestic but not on the diplomatic level. North American Dredging Co. of Texas v. United Mexican States, 4 R. Int’l Arb. Awards 26, 29 (1926). 1933 P.C.I.J. (ser. A/B) No. 53, at 22. Id. at 61-62. Id. at 62. Id. 1974 I.C.J. 253, 457.

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come moot as a result of the French declarations excluding further tests. As pointed out by the Court, declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.32

Indeed, as a writer explains,33 this can, in combination with the ensuing estoppel, create for the declaring State an obligation not to act in a certain way. Another relevant case before the International Court of Justice was that concerning Armed Activities on the Territory of the Congo, where the Court found that “waivers or renunciations of claims must either be express or unequivocally implied from the conduct of the State alleged to have waived or renounced its right,”34 thus contradicting what it had said earlier, in the Norwegian Loans case, when asserting that “[a[bandonment cannot be presumed or inferred; it must be declared expressly.”35 The Court’s findings in these cases tally with the conclusions reached in the earlier ones: need for evidence of a clear and unambiguous intention to abandon a wellidentified right, resulting from the conduct of agents of the State as interpreted in the context of the surrounding circumstances. In the Nuclear Tests cases, the Court saw a clear waiver, which brought the proceedings to an end. By contrast, there was certainly no such unequivocal intention on the part of Thailand in the case of the Temple of Preah Vihear. There had however been, on the part of that country, an obligation to speak out if it did not accept the boundary drawn by the 1907 Mixed Boundary Commission and communicated to the Siamese authorities. “It is clear,” said the Court, that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset.36

The attitude of Thailand may, therefore, be characterized as a silent acquiescence entailing an estoppel, but not as a waiver, which is why the Temple case does not appear relevant in the context examined here. 32 33 34

35 36

Id. para. 43, respectively 46. Trebilcock, supra note 12, at 1330. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment of December 19, 2005, para. 293. See, in the same sense, the case concerning Certain Phosphate Lands in Nauru (Nauru v. Austl.), Judgment on preliminary objections of June 26, 1992, paras. 12-21. Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9, 26. Temple of Preah Vihear (Cambodia v. Thail.), 1962 I.C.J. 33.

23 Lucius Caflisch, Waivers in International and European Human Rights Law

Some precedents in the field of arbitration, too, are connected with the issue of waivers. The oldest case, relating to one John W. Sharpe, was examined by the Mixed Claims Commission established under the Anglo-American Treaty for the Amicable Settlement of All Causes of Differences, of May 10, 1871.37 A claim had been presented to that Commission by John Sharpe, who alleged that he was a British national and had suffered, in the United States, the kind of damage covered by the 1871 Treaty. The United States objected that, prior to the filing of his memorial, Sharpe had voted in the United States and, hence, exercised rights of citizenship in that country. This, according to the American side, created an estoppel against Sharpe’s claim to standing as a British national under Article XII of the 1871 Treaty. And even if it did not, it should be regarded “as very strong evidence of naturalization, sufficient to overcome claimant’s own denial on oath of such naturalization.” The Commission, however, rejected these arguments and allowed the claim, the Commissioner for the United States dissenting.38 This rejection of the American theses seems to mean that naturalization, viewed as a waiver of his claim by an individual, constitutive of estoppel, must be backed by fully convincing evidence, which does not seem to have been the case here. The well-known dispute concerning the Russian Indemnity 39 arose out of the payments to be made by Turkey, under Article 5 of the Treaty of Peace of January 27 / February 8, 1879,40 to Russian subjects and institutions in Turkey for damage suffered during the Turko-Russian war. The indemnity was paid with much delay and in installments, so much so that in 1891 Russia began to claim moratory interest on the unpaid part of the debt, the sum of that interest rising, at the end, far above the principal.41 The main legal question before the arbitrators was whether, in public international law, moratory interests were due, the answer being that they were, from the moment at which they were claimed, in the present case from 1891 onward. The Tribunal however found that, in the ensuing diplomatic correspondence between the Russian Embassy at Constantinople and the Ottoman Government, only the “balance of the indemnity” was referred to, no mention being made of interest, and that it was that balance which was mentioned by Russia as being due by Turkey.42 Thus the Tribunal concluded that Russia … renounced its right to interest, since its Embassy repeatedly accepted without discussion or reservation and mentioned again and again in its own diplomatic correspond-

37 38 39 40 41 42

143 Consol. T.S. 145. 3 J.B. Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 2548 (1898). J.B. Scott, The Hague Court Reports 298 (1916). 154 Consol. T.S. 477. Scott, supra note 39, at 308. Id. at 320-22.

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ence the amount of the balance of the indemnity as identical with the amount of the balance of the principal,43

416

The implication being that the payment of the balance of the principal and the payment of the balance to which the claimants had a right were identical, and this implied the relinquishment of the right to interest or moratory interest damages.44

This award does not belie the conclusions drawn earlier, namely, that to be valid, a waiver must be unequivocal, being either explicit or implied in the surrounding circumstances. The main interest of the award lies, of course, in the fact that here, as in the Nuclear Tests cases, a waiver—and not an explicit one at that—was held to exist, although this does not appear wholly evident. No mention was made of estoppel. The next case relates to Major Campbell, a British citizen holding a mining concession in the then Portuguese colony of Mozambique, and to damage inflicted on him as a result of the impossibility to exploit the concession and personal injuries suffered at the hands of the local Portuguese administration. Later, following negotiations with the Portuguese central administration, the claimant waived his concession rights. What remained to be examined by the sole arbitrator, Count Carton de Wiart, was whether that waiver included the rights resulting from Campbell’s personal injuries. On this point, the arbitrator said: [I]l est de principe, admis par le droit de tous les pays, que les renonciations ne se présument jamais et que, constituant des abandons d’un droit, d’une faculté ou même d’une espérance, sont toujours de stricte interprétation; … en admettant même qu’une renonciation puisse être tacite, encore ne peut-elle s’induire que de faits non susceptibles d’une autre interprétation dans les circonstances de l’affaire; … la portée d’une renonciation doit être restreinte à l’objet précis que la renonciation a eu en vue; … en l’espèce, il n’apparaît nulle part que le major Campbell ait abandonné toute prétention à une réclamation du chef des dommages subis dans sa personne … .45

On this legal basis, the arbitrator reached the following conclusion: 43 44 45

Id. at 322. Id. at 322-23. Campbell v. Portugal, 2 R. Int’l Arb. Awards 1147, 1156 (1931). Translation: “… according to a principle accepted by the laws of all countries, waivers can never be presumed. As they result in the abandonment of a right, of a power or of an expectation, they must be interpreted strictly; … even assuming that waivers may be tacit, this could be inferred only from elements which cannot, in the circumstances of the case, be interpreted in any other way; the scope of a waiver must be limited to its specific object; in the present case, nothing indicates that Major Campbell abandoned all claims to indemnisation for personal injuries … .”

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[I]l apparaît bien que le Gouvernement portugais a considéré la déclaration du 5 décembre 1912 comme comportant, de la part du commandant Campbell, une renonciation générale, mais … cette interprétation unilatérale ne le justifie pas à opposer aujourd’hui une exception de non-recevabilité à une réclamation du chef des dommages personnels subis par le commandant Campbell … .46

This award follows the practice according to which waivers of rights or claims—here the rights of an individual enjoying the protection of his national State—must be unambiguous, which was indeed far from being the case here. More particularly, the arbitrator held that, though waivers may be tacit, they have to be based on circumstances allowing for no other interpretation, and have to be confined to their specific object; in the case at hand, nothing shows that the waiver went beyond that object, the concession-related claims, to extend to the personal injuries suffered by Major Campbell. The Salem case47 is the last to be mentioned in this series of arbitrations. In that case, Egypt contended that Salem had not exhausted local remedies, which made his claim unfit for treatment on the diplomatic level. The United States replied that that argument was foreclosed because exclusive jurisdiction over the claim had passed to the Arbitral Tribunal by virtue of the Arbitration Agreement of January 20, 1931.48 The Tribunal did not, however, accept the argument, pointing out that “[i]nternational arbitral tribunals have repeatedly acknowledged that the conclusion of an arbitration agreement involves no abandonment of the claims to exhaust all legal means.”49 The above conclusion is a consequence of the fact that waivers cannot be presumed and must be unequivocal given the surrounding circumstances. In the present case, there was nothing to show that, by agreeing to arbitration, Egypt had intended to renounce the preliminary objections it might wish to address to the Arbitral Tribunal—unless, of course, such an intention could be inferred from the text of the arbitration agreement or the existing circumstances.50 There is, finally, the case of the “Kronprins Gustaf Adolf” and the “Pacific”51 decided by Eugène Borel, sole arbitrator, who rejected an argument of the United States to the effect that the agreement reached between the parties on a modus vivendi dated January 29, 1918 amounted to a waiver by Sweden of her treaty rights regarding the two ships. In so doing, Mr. Borel pointed out that there was no evidence of an intent to pronounce such a waiver. As explained by him, “[a] renunciation to a right or a 46

47 48 49 50 51

Id. Translation: “clearly the Portuguese Government considered Commander Campbell’s declaration of 5 December 1912 as amounting to a general waiver, but … such a unilateral interpretation will not be sufficient, today, to render inadmissible a claim made by the Commander for indemnisation of his personal injuries. …” Salem Case (Egypt v. U.S.), 2 R. Int’l Arb. Awards 1161 (Perm. Ct. Arb. 1932). Id. at 1163. Id. at 1189. On the effect of parties’ acceptance of arbitration, see also the Suovaniemi case, discussed infra, at 424. The “Kronprins Gustaf Adolf ” (Swed. v. U.S.), 2 R. Int’l Arb. Awards 1239 (1932).

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claim is not to be presumed. It must be shown by conclusive evidence, which in this case does not exist.”52 The above case may be taken to constitute another precedent for the proposition that there must be, not necessarily an express waiver, but conclusive proof of an intention to renounce a right. A third and last group of cases consists of investment disputes between States and foreign nationals. In essence, these cases show that only the foreign owners of an investment protected by a BIT may waive protected rights, and not their domestic instrumentalities. In GAMI Investments, Inc. v. Mexico,53 the Tribunal held that the circumstance that the local Mexican company GAM, of which the American company GAMI was a minority shareholder, had resorted to local remedies could not affect GAMI’s rights as a foreign minority BIT-protected shareholder. “The owners of the other 85.82 shares,” said the Tribunal, might for reasons of their own have chosen not to cause GAM to seek relief before the Mexican courts. (They might simply have been defeatists or they might have made their separate peace with the Government and abandoned any complaint in return for offsetting benefits.) That would not disentitle GAMI.54

In LG&E Energy Corp. v. Argentine Republic,55 the Tribunal equally stressed the independence of foreign shareholders’ claims from those of local licensees: the subject matter of this arbitration focuses on the investment made by LG & E [a US company] in the Argentine licenses. Accordingly, the Tribunal has insisted on the independent treatment of LG & E regarding the licenses, both from the point of view of the legal personality of each entity and from the actions of each.56

The same happened in Enron Corp. & Ponderosa Assets, L.P. v. Argentine Republic,57 where the Tribunal said: There are … two aspects originating in this discussion that are indeed the concern of the Tribunal. The Tribunal must … hold that the Claimants [a US company] have a right to resort to arbitration under the Treaty [BIT] and this cannot be curtailed by the terms of the renegotiation or in any manner, except with the consent of the Claimants,58

that is, via a waiver by the latter of their right to use the settlement procedures of the BIT. 52 53 54 55 56 57 58

Id. at 1299. UNCITRAL Arbitration, Final Award of November 15, 2004, 44 I.L.M. 545 (2005). Id. para. 37. ICSID Case ARB/02/01, Decision on Liability of October 3, 2006, 46 I.L.M. 40 (2007). Id. para. 79. ICSID Case No. ARB//01/13, Award of May 22, 2007. Id. para. 186.

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In Azurix Corp. v. Argentine Republic,59 the Arbitral Tribunal reached the same conclusion, even though the Claimant owned 90 of the shares of the local company, which it thus controlled. Indeed, the Tribunal found60 that the local company’s decisions, such as that of subscribing to a local forum clause and thereby, allegedly, waiving recourse to arbitration, had no impact on the foreign Claimant’s rights under the applicable BIT. The same line of argument can be found in SGS Société Générale de Surveillance v. Islamic Republic of Pakistan,61 where the respondent State characterized the BIT claims of Société Générale as “dressed up” contract claims, that is, contractual claims that could not be raised in a BIT context. In that connexion, the Tribunal pointed out: [w]hatever the merits of the BIT claims …, SGS has alleged them as separate BIT claims, and it is entitled to have this Tribunal pass upon them. To accept the argument of the Respondent that the BIT claims are in reality contract claims and that SGS has waived the right to come to this Tribunal would deny the Claimant its right to make out its arguments that they are not and would require the Tribunal to pass upon, here and now, the merits of the BIT claims. While SGS has presented contractual counter-claims [in another context] and has sought relief that in six of seven heads is identical to that claimed in this proceeding, SGS has not presented claims expressly based on alleged violations of the BIT before any other court or tribunal. We must reject the waiver argument with respect to the Claimant’s BIT claims.62

The difference between the preceding cases and the present one is that the former were about local actions brought by local companies of BIT-protected foreign investors—minority or majority shareholders of those local companies—which allegedly resulted in a waiver of the foreign investor’s BIT-protected rights, whereas SGS v. Pakistan was about the alleged waiver by a foreign investor of its BIT-protected rights through its own participation in other proceedings. The decision in SGS v. Pakistan also suggests that waivers must be express. Pan American Energy LLC and BP Argentina Exploration Co. v. Argentine Republic 63 is the last item to be considered under the present sub-heading. PAE Branch, an Argentine instrumentality of Pan American, a Delaware-based company, operated hydrocarbon concessions in Argentina on land belonging to Forestal Santa Bárbara SRL, also a Delaware company. In addition, Santa Bárbara had performed services for PAE Branch. Santa Bárbara brought a claim on account of these elements before a Delaware court. In return, PAE Branch sued Santa Bárbara before the Argentine federal courts so as to prevent interference, by Delaware courts, with matters which, 59 60 61 62 63

ICSID Case No. ARB/01/12, Decision on Jurisdiction of December 8, 2003, 43 I.L.M. 262 (2004). Id. paras. 77, 81, 85, 90. ICSID Case No. ARB/01/13, Decision on Objections to Jurisdiction of August 6, 2003. Id. para. 181. ICSID Cases Nos. ARB/03/13 and 04/8, Decision on Preliminary Objections of July 27, 2006.

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according to PAE, were directly and exclusively placed under Argentine federal jurisdiction.64 Consulted by its Supreme Court, the Government of Argentina—acting as amicus curiae rather than as a party in this local dispute—agreed that the latter’s subject-matter indeed fell under Argentine federal jurisdiction. Accordingly, said the Claimant, PAE Branch had asserted that jurisdiction over that particular dispute belonged exclusively to the courts of Argentina, and had asked for the Government’s confirmation on this point. In so doing, PAE Branch had mentioned the United States-Argentina BIT of November 14, 1991 and the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States, of March 18, 1965.65 For the respondent State, this meant that the Claimants, under the “fork-in-the-road” clause of Article VII of the BIT, had made a forum selection in favor of the Argentinean courts, which altogether deprived the Arbitral Tribunal of its competence over the case.66 Disputing this view, the Claimants pointed out that under Article VII (2) and (3) of the BIT, combined with the Washington Convention of 1965, a forum selection would have taken place only if the two proceedings—before the Supreme Court of Argentina and before the Arbitral Tribunal—had concerned the same dispute, had the same cause of action, pertained to an investment under the BIT and involved the same parties. None of these conditions were met. According to the Arbitral Tribunal, which asserted jurisdiction in a decision of July 27, 2006, Argentina’s objection was based on two assumptions: (i) the Claimants had, via a local company, brought a private dispute before the courts of Argentina and, having mentioned the BIT and the ICSID Convention, had opted, under the former’s Article VII, in favour of the Argentinean courts, and, therefore, forfeited their access to the Tribunal; and (ii), independently of that element, the Claimants were estopped, on account of having done so, from using other BIT dispute settlement facilities.67 Thus, the first issue was whether a forum selection had indeed occurred pursuant to Article VII of the BIT. To judge from the precedents cited by the Claimants, arbitral tribunals do not lightly assume that forum selections in favor of the local courts have taken place, for otherwise there would have been little point in setting up international arbitral procedures for investment disputes. To conclude that such a choice has indeed been effected, it must be shown, first, that the dispute brought before the national courts is identical with the investment dispute submitted to arbitration under the BIT.68 The causes of action must be identical as well, which is often not the case.69 In the present case, the parties were not the same: Argentina acted not 64 65 66 67 68 69

Id. paras. 140-142. Id. para. 143. For the text of the BIT of November 14, 1991, see 31 I.L.M. 128 (1992); and, for that of the Washington Convention, see 575 U.N.T.S. 159. Id. para. 144. Id. para. 153. Id. para. 155. Id. para. 156.

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as a party to the local dispute but as an amicus curiae. Nor was there identity of the causes of action, as the local action was not based on an alleged violation of the BIT, even if the latter was referred to in passing.70 The second issue was one of estoppel. An essential element of that principle consists in “detrimental reliance by one party on statements of another party, so that reversal of the position previously taken by the second party would cause serious injustice to the first party.”71 Taking the above elements into account and applying them to the present case, one can scarcely speak (1) of a clear statement of fact by one party, as no such statement had ever been made, nor (2), a fortiori, of a “voluntary, unconditional and authorized” statement; or (3) of reliance by Argentina, not a party to the local dispute, on the choice alleged to have been made by the Claimants under Article VII of the BIT to her own detriment.72 This case and the other precedents mentioned above mainly show that a distinction must be drawn in international investment disputes between foreign investors and local operators, regardless of the size of the formers’ investments in the latter. And whatever the local entity may have accepted is not imputable to the foreign investor, just as the latter is not identical with the local operator and, therefore, remains protected by the relevant BIT. This means, in particular, that local operators may not make choices or waive rights on behalf of the foreign investor unless, of course, the latter agrees thereto. In particular, the local operator may not make forum selections, that is, renounce the foreign investor’s protection under the BIT. Only the owner of a right or claim can waive it. III. Waivers in the European Human Rights System A. Introduction The European mechanism for the protection of human rights is characterized by four features. First, it is essentially intended for individuals claiming, on an international level, that a State Party to the ECHR or its Additional Protocols has breached their human rights. The context in which the issue dealt with in this paper must be discussed is, therefore, the waiver of their rights by such individuals.73 This subject has been the object of more than 50 judgments and decisions.

70 71 72 73

Id. para. 157. Id. para. 159, citing D.W. Bowett, Estoppel before International Tribunals and Its Relation to Acquiescence, 33 Brit. Y.B. Int’l L. 176, 183-84 (1957). Pan American Energy LLC, supra note 63, para. 160. There were also instances, however, where rights were waived by respondent States. See De Wilde, Ooms and Versyp v. Belgium (“Vagrancy” cases), No. 2832/66, 2835/66 and 2899/66, Judgment of June 18, 1971 (right of the State to the exhaustion of domestic remedies).

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Second, what is at stake, in an international human rights framework, is not only the respect of individuals’ basic rights, but also the protection of human rights in general. For this reason individual applicants cannot always renounce their rights; they are prevented from doing so when the waiver of a right by an individual is likely to affect adversely the rights of other persons or the effectiveness of the framework as such. This happens, in particular, when individuals purport to waive “core” human rights, that is, those belonging to the realm of jus cogens, or those that cannot be suspended in times of crisis or emergency.74 A third feature, emphasized by the practice of the European human rights system, is that the bulk of the waiver cases relate to matters of fair trial (Article 6 of the ECHR). There were, however, instances in which substantive rights were waived.75 Finally, a fourth feature, as shown by the practice in general international law examined in the first part of this study, is that the existence of waivers cannot be easily assumed. To borrow from the language used by the ECtHR, they must be the expression of the individual’s own free will and have been made “unequivocally.”76 The burden of proof lies with the respondent State alleging the waiver, in accordance with general rules on evidence; it is not incumbent on individual applicants to prove that they have not waived a right. The European Court does not lightly assume that waivers have occurred. B. Some Leading Cases in the Matter of Waivers 1. Sejdović v. Italy (2004, 2006) In Sejdović I, the applicant, who had disappeared from Italy where he was suspected of having committed a crime, was tried in absentia.77 As Italian law stood at the time, the applicant was entitled to a retrial only if he had left the country without being aware of the steps taken against him. Thus, if it could not be established that he was a “fugitive,” having known about his trial but having renounced or “waived”

74

75

76

77

Such as the rights cited in Article 15 of the ECHR. According to that, the provisions of the Convention may be derogated from “[i]n time of war or other public emergency … to the extent strictly required by the exigencies of the situation,” except in respect of Article 2 (right to life)—save for deaths resulting from lawful acts of war, or of Articles 3 (torture), 4.1 (slavery) and 7 (no punishment without law). See also De Wilde, Ooms and Versyp, supra note 73, para. 65; Suovaniemi v. Finland, No. 31737/96 (Dec.), Feb. 23, 1999. Such as the right to damages, see Neumeister v. Austria, No. 1936/63, May 7, 1974; Perez v. France, Grand Chamber (GC), No. 47287/99, Feb. 12, 2004; or the rights to education and to non-discrimination, cf. D.H. v. Czech Republic, No. 57325/00, GC, Nov. 13, 2007. This condition was emphasized in more than fifty instances, that is, the quasi-totality of waiver cases. See, e.g., Colozza v. Italy, No. 9024/80, Feb. 12, 1985; Håkansson and Sturesson v. Sweden, No. 11855/85, Feb. 21, 1990; Einhorn v. France, No. 71555/01, (Dec.), Oct. 16, 2001; Young v. United Kingdom, No. 60682/00, Jan. 16, 2007. Sejdović v. Italy, No. 56581/00, Nov. 10, 2004 [Sejdović I]; Sejdović v. Italy, GC, Mar. 1, 2006 [Sejdović II].

23 Lucius Caflisch, Waivers in International and European Human Rights Law

participation in it, Sejdović was entitled to ask for a retrial.78 The Court asserted that, to be valid, such a waiver had to be “unequivocal.”79 Applying these rules to the facts, the Court found that, even if Sejdović was “indirectly aware” of the proceedings against him, he had not unequivocally renounced his right to appear at the trial.80 The Court’s Grand Chamber endorsed this reasoning in Sejdović II.81 These precedents demonstrate that no waiver is likely to be found in the absence of proof of actual knowledge by and notification of the accused that he/she has to stand trial. They also show the circumspection with which the Court proceeds when dealing with waivers, even if they appear evident on the surface, as would seem to be the case when a suspect disappears for fear of being captured and tried. 2. Thompson v. United Kingdom (2004) In the Thompson case the applicant, a member of the British armed forces, was facing a military trial, either in the form of short proceedings before his commanding officer, with very limited procedural rights but a relatively low maximum penalty, or by a full court-martial before a military court carrying full procedural guarantees but equally a much higher maximum penalty. Here, too, the Court stressed the need for waivers of Convention rights to be “unequivocal.”83 On the facts, the Court found no valid waiver, as it was uncertain whether the applicant had indeed been offered an option between the two types of proceedings. Even if he had been, adds the Court, he would not have been in a position, as a layman without legal assistance, to take a rational decision on whether or not to waive his right to full procedural guarantees under the Convention.84 This is yet another example of the prudence shown by the Court when confronted with allegations of waiver, particularly when dealing with applicants who were not advised of their legal rights. 82

3. Neumeister v. Austria (1974) Neumeister is another case of special interest. In its main judgment,85 the Court decided that the Government of Austria had breached the European Convention in criminal proceedings against Neumeister. In light of that judgment, the Government released Neumeister from prison. It then argued that the applicant had agreed to waive his right to compensation under the Convention on the understanding that he would be released from prison without serving his full sentence. Neumeister acknowledged that he had made an offer to that effect, but contended that that offer was also contingent upon the Government’s renouncing other claims against him—an 78 79 80 81 82 83 84 85

Sejdović I, paras. 29-42. Id. para. 33. Id. para. 36. See paras. 86-88 and 96-106 of the Grand Chamber’s judgment of March 1, 2006. No. 36256/97, June 15, 2004, paras. 43-45. Id. para. 43. Id. paras. 43-45. Neumeister v. Austria, No. 1936/63, June 27, 1968.

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additional condition that the Government considered not to be part of the bargain. In its second Neumeister judgment, the Court observed “that particularly in the specific field covered by the Convention, the waiver of a right, even the mere right to a sum of money, must result from unequivocal statements or documents.”86 Accordingly, the Court rejected the argument that a waiver was established on the record of the case. The main lesson to be drawn from Neumeister is that some evidence of an intent to waive is not sufficient; the evidence must be uncontroversial. Another lesson is that if the conditions established by the Court’s case-law are met, waivers can pertain to Convention rights other than those guaranteed by Articles 5 and 6, for instance the right to just satisfaction (Article 50, now Article 41) for material and moral damage.87 4. Suovaniemi v. Finland (1999) In the Suovaniemi case, the Finnish courts had upheld an arbitral award despite the applicants’ argument that this decision deprived them of the right to an impartial tribunal. The parties had concluded an agreement to arbitrate and the applicants had initiated the arbitration. The Court held that waivers must be “unequivocal” and that the applicants’ conduct did amount to an unequivocal waiver of the right to a public hearing because opting for arbitration implied an explicit renunciation of public hearings and ordinary court proceedings. On the issue of impartiality, the Court thought that, even though one arbitrator’s impartiality may have been questionable, the applicants had accepted him and, thus, waived their right to complain. The Suovaniemi case provides an example of an “unequivocal” waiver as the parties had chosen arbitration expressly and in writing. 88

5. D.H. v. Czech Republic (2007) In the Czech Republic there are special schools for physiologically handicapped children or children with learning difficulties, which are open, in particular, to Roma children. In some instances, the parents of such children had agreed to and even requested their children’s admission. Placements were decided upon, on the basis of tests, by the headmasters of the special schools. There was a right of appeal from such decisions and also the possibility of asking for a transfer to regular primary schools. Some applicants in the present case contested placements in special schools, alleging that the children’s intellectual capacities had not been gauged adequately and that their parents had not been sufficiently informed of the consequences of placement in such schools. After the exhaustion of domestic remedies, the applicants, invoking Articles 3 (prohibition of torture) and 14 (prohibition of discrimination) of the Convention, and Article 2 of Additional Protocol No. 1 (right to education),89 turned to

86 87 88 89

Judgment, para. 36. Id. paras. 32-36. See note 74. For the text of Additional Protocol No. 1, see Europ. T.S. No. 9.

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the ECtHR, whose Grand Chamber eventually found violations of Articles 14 of the Convention and 2 of Protocol No. 1 in relation to each applicant.90 Regarding the waiver allegedly resulting from the parents’ consent to their children’s placement in special schools, the applicants argued, before the Court’s Grand Chamber, that all children had an equal right to education, of which no parental conduct or choice could deprive them. Moreover, as the Court had pointed out in the Håkansson case,91 waivers may be lawful for certain rights but not for others, and must not run counter to the rights of others and the public interest, and precisely this is the case for the child’s right not to be racially discriminated against in the field of education.92 The International Federation for Human Rights (FIDH), an intervener in the proceedings, wondered whether waivers of the prohibition of discrimination should not be ruled out altogether and concluded that such waivers could not, at any rate, in the present circumstances, relieve the respondent State of its obligation under the Convention.93 In its judgment on the D.H. case, the Grand Chamber of the Court found that the parents’ consent, if it were accepted as justifying the placement in special schools, would amount to waivers of the prohibition of discrimination. Such waivers must be unequivocal and be made in full knowledge of the facts and freely.94 In the instant case, the parents, members of a disadvantaged community and often poorly educated, may not have known exactly what they were doing when giving their consent to placement in a special school, especially as they had received very little information. In addition, they were confronted with a difficult choice between ordinary schools, ill-equipped to take care of their children’s social and cultural background and in which their children risked isolation and ostracism, and special schools where the majority of the children would be Roma.95 Stressing the paramount importance of the prohibition of racial discrimination, the Grand Chamber concluded that, even if the conditions enumerated above (unequivocal waiver, made in full knowledge of the facts and without constraint) were met, no waiver of a right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest (see, mutatis mutandis, Hermi v. Italy, para. 73 …).96

90 91 92 93 94

95 96

No. 57325/00, GC, Nov. 13, 2007. Judgment, supra note 76, para. 66. Judgment in D.H. v. Czech Republic, supra note 75, para. 143. Id. paras. 173-174. Judgment in D.H. v. Czech Republic, supra note 75, para. 202 (citing Pfeifer and Plankl v. Austria, No. 10802/84, Feb. 25, 1992, paras. 37-38, and Deweer v. Belgium, No. 6903/75, Feb. 27, 1980, para. 51). Id. para. 203. Judgment in D.H. v. Czech Republic, supra note 75, para. 204 (citing Hermi II, No. 18114/02, GC, Oct. 18 2006).

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The D.H. case provides an important precedent, not only because it is recent and confirms earlier case-law, but also and above all because it identifies an area in which, at least under certain circumstances, waivers can have no effect. C. Categories of Rights Waived As pointed out already, most of the waivers, alleged or recognized, examined by the Strasbourg Court, pertained to procedural issues, that is, rights guaranteed by Articles 5 and 6 of the ECHR: – the right to a public hearing;97 – the right to independent and impartial judges;98 – the right to a fair trial, including legal representation;99 – the right to call and cross-examine witnesses;100 – the right to complain about the length of detention or of proceedings;101 and – the right to consult the files.102 As equally explained earlier, waivers may relate to substantive rather than procedural rights: the right to damages under Article 50 (now 41),103 for instance, and the right to education under Article 2 of Protocol No. 1 combined with the prohibition of racial discrimination in educational matters (Article 14 of the ECHR).104

97

98 99

100

101

102 103

104

Samokhvalov v. Russia, No. 3891/03, Feb. 12, 2009, paras. 47-61; Saccoccia v. Austria, No. 69917/01, Dec. 18, 2008, paras. 70-80; Stempfer v. Austria, No. 18294/03, July 26, 2007, para. 30; Zagorodnikov v. Russia, No. 66941/01, June 7, 2007, paras. 22-25; Werner v. Austria, No. 138/1996/757/956, Nov. 24, 1997, paras. 43-51; Kremzow v. Austria, No. 12350/86, Sept. 21, 1993, paras. 66-69; H. v. Belgium, No. 8950/80, Nov. 30, 1987, para. 54. Suovaniemi v. Finland, supra note 74; Oberschlick v. Austria, No. 11662/85, May 23, 1991, paras. 51-52. Panovits v. Cyprus, No. 4268/04, Dec. 11, 2008, para. 73; Young v. United Kingdom, supra note 76, paras. 40-41; Khalfaoui v. France, No. 34791/97, Dec. 14, 1999, paras. 51-53; Suovaniemi v. Finland, supra note 74; Zana v. Turkey, No. 18954/91, Nov. 25, 1997, paras. 70-73; Colozza v. Italy, supra note 76, paras. 26-33. Polufakin and Chernychev v. Russia, No. 30997/02, Sept. 25, 2008, para. 202; Andandonskiy v. Russia, No. 24015/02, Sept. 28, 2006, para. 54; Bocos-Cuesta v. Netherlands, No. 54789/00, Nov. 10, 2005, para. 65; Hulki Günes v. Turkey, No. 28490/95, June 19, 2003, para. 95; Sadak v. Turkey, Nos. 29900/96, 22901/96, 29902/96, July 17, 2001, para. 67. Shakolas v. Cyprus, No. 47119/99, May 4, 2006, para. 106; Richard v. France, No. 106/1997/890/1102, Apr. 22, 1998, para. 49; Pailot v. France, 93/1997/877/1089, Apr. 22, 1998, para. 52. Frommelt v. Liechtenstein, No. 49158/99, June 24, 2004, para. 33. This Article provides that if the Court finds that there is a breach of the Convention or of its Protocols, “and if the internal law of the High Contracting Party allows only partial reparation to be made, [it] shall, if necessary, afford just satisfaction to the injured party.” Article 2 of Additional Protocol No. 1 runs as follows: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to educa-

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D. Conditions for Valid Waivers 1. Waivers Must Be “Permissible” There is no actio popularis in the context of the European system for the protection of human rights.105 Accordingly, waivers are possible. They must be “permissible,” however, that is, not relate to underogable rights such as those protected by Articles 2, 3, 4(1) and 7 of the ECHR, nor to Article 5 and 6 guarantees when invoked in connexion with alleged violations of non-derogable rights.106 2. There Must Be Sufficient Guarantees Commensurate to the Waiver’s Importance Waivers must be “accompanied by sufficient [or minimum] guarantees commensurate to its importance.”107 The meaning of that condition was at least partly elucidated in Suovaniemi v. Finland, where the applicants, in the course of arbitration proceedings, renounced challenging an arbitrator suspected to be lacking in independence and impartiality and where the Finnish courts had subsequently upheld the arbitral award. The ECtHR found that there was indeed a waiver: not only had there been voluntary submission to arbitration but the applicants had also clearly given up their objections against the arbitrator. What was more, “throughout the arbitration the applicants were represented by counsel,” which the Court held to be a procedural guarantee commensurate to the importance of the waiver.108 A condition related to the idea of sufficient guarantees is that a person who has renounced an important procedural right under Article 6 of the ECtHR “could reasonably have foreseen what the consequences of his[/her] conduct would be.”109

105 106

107

108 109

tion and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Perez v. France, supra note 75, para. 70. Galstyan v. Armenia, No. 26986/03, Nov. 15, 2007, para. 90; D.H. v. Czech Republic, supra note 75, para. 204; Stempfer v. Austria, supra note 97, para. 31; Young v. United Kingdom, supra note 76, para. 40; Bonev v. Bulgaria, No. 60018/00, June 8, 2006, para. 41; Bocos-Cuesta v. Spain, supra note 100, para. 101; Frommelt v. Liechtenstein, supra note 102, para. 33; Bell v. United Kingdom, No. 41534/98, Jan. 16, 2007, para. 45; Thompson v. United Kingdom, supra note 82, para. 43; Hulki Günes v. Turkey, supra note 100, para. 95; Suovaniemi v. Finland, supra note 74; Pailot v. France, supra note 101, para. 52; Richard v. France, supra note 101, para. 49; Oberschlick v. Austria, supra note 98, para. 51; Barberà, Messegué and Jabardo v. Spain, No. 10590/83, Dec. 6, 1988, para. 82. Panovits v. Cyprus, supra note 99, para. 68; Demebukov v. Bulgaria, No. 68020/01, Feb. 28, 2008, para. 47; Young v. United Kingdom, supra note 76, para. 40; Sejdović II, cited in id., para. 86; Thompson v. United Kingdom, supra note 82, para. 43; Schöps v. Germany, No. 25116/94, Feb. 13, 2001, para. 48. Cf. supra note 74. Panovits v. Cyprus, supra note 99, para. 68; D.H. v. Czech Republic, supra note 75, para. 202; Bonev v. Bulgaria, supra note 106, para. 41; Sejdović II, supra note 77, para. 87; Thompson v. United Kingdom, supra note 82, para. 44; Bell v. United Kingdom, supra note 106, para. 48.

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3. Waivers Must Concern Rights of the Person Wishing to Relinquish Them It will be recalled that this requirement is important in the context of investment disputes, where questions have arisen about whether foreign investors in domestic companies, protected by BITs, would be bound by waivers pronounced by such companies. The answer, it will be remembered, is clearly in the negative. There is no reason why similar situations could not, mutatis mutandis, occur in an international human rights context—perhaps in connexion with waivers of substantive rather than procedural rights. If and when they do arise, the solution will undoubtedly be the same, viz., the right waived must have been the applicant’s. 4. Waivers Must Be Permitted by the Relevant Domestic Law Evidently, in certain situations, there can be no valid waiver on the international level if the right in question could not be validly renounced on the domestic level.110 5. Waivers May Not Run Counter to an Important Public Interest This condition, formulated in Håkansson and Sturesson v. Sweden,111 makes sense: if applicants are protected against their own possibly ill-considered waivers, it is legitimate to prevent waivers contravening the public interest as well.112 Unfortunately the ECtHR has not elaborated much on that condition. One possible interpretation is that it coincides, at least partly, with the condition that an individual cannot renounce rights the abandonment of which would or could adversely affect the rights of others or the functioning of the European mechanism for the protection of human rights.

110 Vozhigov v. Russia, No. 5953/02, Apr. 26, 2007, para. 57; Andandonskiy v. Russia, supra note 100, para. 54; Colozza v. Italy, supra note 76, para. 28. 111 Judgment of February 21, 1990, supra note 76, para. 66. 112 Panovits v. Cyprus, supra note 99, para. 68; Doroshko and Pozharskiy v. Estonia, Nos. 14659/04 and 16855/04, Apr. 24, 2008, para. 46; Demebukov v. Bulgaria, supra note 107, para. 47; Young v. United Kingdom, supra note 76, para. 40; Sejdović II, supra note 77, para. 86; Hermi II, supra note 96, para. 73; Alatulkkila v. Finland, No. 33538/96, July 28, 2005, para. 53; Hermi I, No. 18114/02, June 28, 2005, para. 39; Sejdović I, supra note 77, para. 34; Thompson v. United Kingdom, supra note 82, para. 43; Döry v. Sweden, No. 28394/95, Nov. 12, 2002, para. 37; Lundevall v. Sweden, No. 38629/97, Nov. 12, 2002, para. 34; Salomonsson v. Sweden, No. 38978/97, para. 34; A.T. v. Austria, No. 32636/96, Mar. 21, 2002, para. 35; McGonnell v. United Kingdom, No. 28488/95, Feb. 8, 2000, para. 44; Pauger v. Austria, No. 16717/90, May 28, 1997, para. 58; Schuler-Zgraggen v. Switzerland, No. 14518/89, June 24, 1993, para. 58.

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6. Waivers Must Be Unforced and Be Made in Full Knowledge of the Surrounding Circumstances Waivers made under duress are invalid; the ECtHR has said so in the D.H. case.113 It has also said that waivers by persons unfamiliar with the surrounding facts or legal background, or deprived of legal advice, will not be recognized.114 7. Waivers Must Be Unequivocal As has been emphasized in the context of traditional international law, waivers must be “unequivocal;” this, as has been pointed out already, is equally true in the area of human rights.115 It does not mean, however, that waivers must be express or made in writing116 since such a condition would be particularly inappropriate where the rights of individuals are concerned. But the terms of the alleged waiver, or the circumstances surrounding it, must make it perfectly clear that the applicant—or the State, wherever the purported waiver emanates from the latter—did indeed intend to give up the right in question. The burden of proof generally lies with whoever asserts that a waiver has taken place; but it is, of course, open to the other party to rebut that assertion. This rule is of strict application—no waiver is to be presumed –, which is why the existence of waivers is infrequently recognized. 8. Qualified Waivers? Judging from the Neumeister case,117 the Strasbourg Court does not exclude conditional waivers. It is, indeed, difficult to see why it should. Conditions may make waivers dependent on the occurrence of an event or situation. The important point in such cases—which include an element of do ut des—is that the waiver takes effect only when the condition is met and that, if the latter is not fulfilled, the waiver will lapse.

113

D.H. v. Czech Republic, supra note 75, para. 202. See also the following series of cases: Demebukov v. Bulgaria, supra note 107, para. 47; Vozhigov v. Russia, supra note 110, para. 57; Hermi I, supra note 112, para. 39; Sejdović I, supra note 77, para. 39; A.T. v. Austria, supra note 112, para. 35; Pauger v. Austria, supra note 112, cited in id., para. 58; SchulerZgraggen, supra note 112, cited in id, para. 58; Håkansson and Sturesson, supra note 76, para. 66; H. v. Belgium, supra note 97, para. 54; Deweer v. Belgium, 6903/75, Feb. 27, 1980, para. 51. 114 Id.; see also Thompson v. United Kingdom, supra note 82, para. 44; Suovaniemi v. Finland, supra note 74; Pfeifer and Plankl v. Austria, supra note 94, para. 38. 115 See supra note 76 and accompanying text. 116 Zagorodnikov v. Russia, supra note 97, para. 25; Alatulkkila v. Finland, supra note 112, para. 53; Hermi I, supra note 112, para. 39; Yakovlev v. Russia, No. 72701/01, Mar. 15, 2005, para. 19; A.T. v. Austria, supra note 112, para. 35; Schöps v. Germany, supra note 107, para. 48 (“expressly or in any other unequivocal manner”); McGonnell v. United Kingdom, supra note 112, para. 44; Pauger v. Austria, supra note 112, para. 58; Håkansson and Sturesson v. Sweden, supra note 76, para. 66. 117 See supra.

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E. Effect of Valid Waivers 430

The effect of valid waivers is that alleged violations of procedural or substantive rights under the Convention or its Protocols can no longer be claimed. As in cases of friendly settlement, the renouncing applicant loses his/her victim status. It goes without saying that a waiver only affects the precise right or rights abandoned. F. Waivers by Discontinuance Discontinuance is a procedural device in the framework of the ECHR as well. Article 37 of the Convention allows the striking out of applications, inter alia, when “the applicant does not intend to pursue his application,” unless “respect for human rights … requires” the ECtHR to examine the case. The Court may, moreover, restore an application to its list of cases “if it considers that the circumstances justify such a course.” These provisions are amplified in Rule 43 of the new Rules of Court which entered into force on 1 June 2010. Rule 43, which is identical in content with former Rules 43 and 44E, prescribes that striking-out decisions must take the form of judgments, to be transmitted to the Committee of Ministers of the Council of Europe in order to allow that body, in accordance with Article 46(2) of the Convention,118 to supervise the execution of any undertakings attached to the discontinuance. It also provides that if an applicant State Party to the ECHR or an individual applicant fails to pursue its or his/her claim, a chamber may remove the application from the Court’s list. These provisions may appear confusing. The gist seems to be that: (1) discontinuance results in the striking out of the application unless such a measure would be prejudicial to the respect of human rights; (2) striking-out decisions must take the form of judgments, and this implies that procedurally the case before the ECtHR is over because, under Article 35(2)(b) of the Convention, a new application based on the same cause would be “substantially the same as a matter that has already been examined by the Court”; (3) all this is, however, subject to the Court’s power to restore a case to the list if it finds that the circumstances justify such a course of action. This shows that, although the proceedings will be considered as having ended, this assertion must be taken with a grain of salt. IV. Conclusions As has been shown in the present paper, a distinction must be drawn between waivers accomplished by unilateral act and waivers by agreement. A difference must also be made between conventional waivers based on the idea of a quid pro quo, and treaties by which subjects of international law, acting in common, undertake to waive a right, either in their mutual relations and/or vis-à-vis third States. A further dis118

Article 46(1) and (2) reads as follows: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

23 Lucius Caflisch, Waivers in International and European Human Rights Law

tinction will be needed between “abdicative” waivers and “translative” waivers which make the abandoned right pass on to others. Finally, one will distinguish between waivers involving traditional subjects of international law—States and, possibly, intergovernmental organizations—and situations which concern individuals appearing before international courts, especially investment tribunals and human rights courts: in the latter cases, waivers may be unilateral in character or be the result of a friendly settlement. Nevertheless, as has been shown in the present study, some general conclusions on the subject of waivers can be drawn: – The possibility of waiving rights unquestionably qualifies as a “general principle of law recognized by civilized nations.” While the object, conditions for and consequences of waivers may differ from one country to another and, on the international level, from forum to forum, several common features have been identified. – The object of waivers are rights. If it were possible to “waive” obligations, subjects of law could lawfully shake off their legal obligations, even where no “contracting out” is permitted. – Certain rights, deriving from jus cogens or essential human rights rules, or considered indispensable for the proper functioning of mechanisms for the protection of human rights, cannot be waived. – There must be an intention to waive the right in question, and that intention must be expressed freely. – While no specific requirements of form must be met, waivers have to be unequivocal. This condition is emphasized by the bulk of the case-law examined. – Waivers do not always produce estoppels. Conversely, estoppels may arise in situations where no waiver has occurred. – Waivers can be qualified, in which case they begin to operate only when the condition has been met. In general international law, such conditional waivers are part of conventional arrangements. When they occur in a human-rights context, they may result from friendly settlements. – The subject alleging a waiver must prove it, which is often difficult. It is always open to the other party to show that in fact no waiver has taken place. – The effect of valid waivers is that the rights forming their object lapse or pass on to another subject. In the area of human rights, the applicant loses his/her victim status inasmuch as the waived right is concerned. – Once a valid waiver has been made public, it cannot be withdrawn unless the beneficiary—if there is one—has consented. If the beneficiary has acted to his/ her own detriment by relying on the waiver, in good faith, its author is estopped from claiming his/her right.

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Chapter 24 Reflections on the Current Prospects for International Criminal Justice Antonio Cassese*

I. Introduction The increasing importance of international criminal justice is no doubt a welcome feature of the present international community. Two developments, in particular, attest this importance: first, the proliferation of international criminal courts and tribunals; and second, the growing number of pronouncements by national courts on international crimes (including war crimes, crimes against humanity, torture, genocide, and terrorism), based on various heads of jurisdiction: territoriality, active nationality, and universal jurisdiction. II. The Reasons for the Increasing Importance of International Criminal Justice Why is the expansion of international criminal accountability a striking feature of the present world community? At least three main reasons account for this healthy development. First, the demise of the Cold War, and the consequent end of the reciprocal diffidence shown by the various blocs of states, has made it possible, not only to resort to previously untapped dispute-settlement mechanisms, but also to impose the principle of individual accountability of state officials and other authors of international crimes. By the same token, it has allowed the international community to set up international machinery designed to implement this principle. Second, the growing weight of international human rights doctrine and the need to enforce respect for such rights, coupled with the weakness of existing supervisory mechanisms, has proved that the most forceful way to react to appalling violations of human rights resides in going to the root of the problem: instead of taking on *

This essay is based on a paper given on June 8, 2009, at The Hague Conference on International Justice organized by Professor M. CHerif Bassiouni. Although the author had been invited in his capacity as President of the Special Tribunal for Lebanon, the views set out here are those of the author. They do not necessarily reflect the position of any national or international institution.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 433-438.

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the states to which the offenders belong, it is necessary to strike at the individual offenders themselves. Hence the gradual shift in emphasis from state responsibility to individual criminal liability of state officials. This is consistent with the famous Nuremberg dictum that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”1 Third, because of a number of political and military factors, the U.N. Security Council, the highest political body of the international community, is frequently unable to discharge two of its essential functions: (i) to provide specific parameters for the exercise by sovereign states of their jus ad bellum rights (namely, their right to self-defence in the event of an armed attack, as set forth in Article 51 of the U.N. Charter);2 and (ii) to enforce state compliance with the jus contra bellum, that is, with the U.N. Charter’s otherwise general prohibition on resort to force in international relations.3As a consequence of this failure, the Security Council is increasingly turning to action that relates to the jus in bello. Being unable to stop resort to violence in international or internal relations, or other serious threats to peace and security, the Security Council at least tries to impose restraints on such violence, by protecting civilians to the extent possible and providing for the prosecution and punishment of the authors of the gravest breaches of humanitarian law. The Security Council has done this by establishing ad hoc international criminal tribunals designed to stem the worst atrocities as much as possible. (In this respect, suffice it to recall the ICTY and the ICTR). III. The Current Outlook for International Criminal Justice What, then, are the realistic prospects for international criminal justice? Is it bound to gradually wane in the long term because of widespread “tribunal fatigue”? Or is it instead destined to flourish even more? If the second alternative is more plausible, as I believe, what trends are likely to take shape international criminal justice in the next few years? In light of current developments, I would suggest that in the near future international criminal justice is likely to take three different paths. A. The Increasing Effectiveness of the International Criminal Court First, the International Criminal Court (ICC) is likely to move gradually from its present stance, in which it continues laboriously to test the waters and cautiously to experiment with its complex procedural rules, to a firm position where it will ef1 2 3

1 Trial of the Major War Criminals Before the International Military Tribunal 223 (1947). U.N. Charter art. 51. U.N. Charter art. 2, para. 4. On this specific point, see the incisive comments of Luigi Condorelli, Some Thoughts on the Optimistic Pessimism of the Good International Lawyers, 20 Eur. J. Int’l L. (forthcoming).

24 Antonio Cassese, Reflections on the Current Prospects for International Criminal Justice

ficaciously fulfil its important mission. Particularly if the Prosecutor decides to stop waiting for the referral of situations by states or by the Security Council and instead begins to exercise the important and unique power he holds under the Rome Statute of the ICC4—namely, to initiate investigations proprio motu—the Court is likely to become more effective. I should emphasise that initiating investigations proprio motu, whenever a situation, in the view of the Prosecutor, so requires, does not necessarily mean that the Court will hear many more cases. Rather, the mere fact that investigations have been launched, and suspects or accused persons named, may well “shame” states enough to prompt them to initiate proper national investigations and prosecutions, thus adhering to and effectuating the principle of complementarity, albeit in a more “aggressive” way. Should the Prosecutor take this approach, in the long run, the Court’s universal potential can be expected to bear fruit, by showing that it can be, not only fair and impartial, but also expeditious in holding the major perpetrators of crimes accountable. This, I believe, would also result in a growing number of states gradually becoming parties to the Rome Statute. The ICC will thus come to occupy its rightful place in the constellation of international judicial bodies: it will constitute a judicial institution parallel to, and mirroring in its scope, the International Court of Justice. While the latter will continue to deal with interstate disputes at the world level, the former will handle—again at world level—individual criminal responsibility. B. The Expansion of Prosecutions by National Courts of International Crimes The ICC, rightly, is intended to be only complementary to the criminal jurisdiction of national courts, stepping in only when the latter courts prove either unable or unwilling to investigate or prosecute international crimes. This is the second path that international justice is likely to take: the expansion of national prosecution and adjudication of war crimes, crimes against humanity, torture, genocide, and terrorism. This expansion is justified on two grounds: First, the courts best suited to adjudicate a crime are those of the state where the crime was committed, or of the state to which the alleged perpetrator belongs, for these states will be in a better position than others to collect the necessary evidence. Second, while international criminal tribunals should concentrate on the military and political elites most responsible for international crimes, national courts can bring to justice the executioners and other rank-and-file perpetrators who should be punished no less than those who masterminded, planned, or instigated the crimes. Unfortunately, for political and practical reasons, the courts of many states remain loath to exercise territorial jurisdiction or to act upon the active nationality principle in the context of international crimes. This is true even with respect to such 4

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, June 15-July 17, 1998, Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9* (July 17, 1998), 37 I.L.M. 999 (1998) [hereinafter Rome Statute].

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atrocious, organized, and large-scale offences as war crimes, crimes against humanity, and other serious international crimes. As a consequence, the moral imperative (stemming from international human rights doctrine) to not allow the authors of heinous crimes to escape with impunity creates a need for states to resort to extraterritorial jurisdiction based on the universality principle. For this reason, the exercise of universal jurisdiction is bound to increase in importance. I am fully aware that many states, particularly in Africa, claim that Western and European states use the universality principle as a subtle and pernicious way of interfering in the sovereignty of those African states where the defendants reside. African states also claim that a double standard has emerged in international criminal justice. In their view, Western and other powerful states whose officials engage in war crimes or crimes against humanity in fact escape effective prosecution, because those states have, to date, declined to become parties to the Rome Statute. Furthermore, the failure of these states to prosecute their own nationals is not met with any judicial “interference” by foreign states. In contrast, or so the argument goes, nationals of African states are brought to trial or at least accused, either by the ICC or by the national courts of some European states exercising extraterritorial jurisdiction. There is, in my view, some truth in this argument, although matters are more complex and far from black-or-white. A sound solution might be found in a twopronged approach. On the one hand, African states should be encouraged to exercise their jurisdiction effectively over their own nationals who are suspected or accused of international crimes. On the other, European states should be prompted to subject the exercise of their extraterritorial jurisdiction to a set of conditions designed to prevent international justice from causing undue interstate friction.5 To this end, European countries should adopt some of the recommendations recently made by a working group of “Experts on the Principle of Universal Jurisdiction,” which the European Union and the African Union jointly appointed.6 For instance, when a European court has evidence that a foreign senior state official has committed serious international crimes abroad, before exercising universal jurisdiction, it should (i) consider requesting that the official’s territorial or national state prosecute; (ii) refrain in any event from taking steps that might publicly and unduly expose the suspect or accused; (iii) take into account the suspect’s or accused’s personal immunities under international law; and (iv) where there is a serious reason to believe that the territorial state or the state of the offender’s nationality is unable or unwilling to prosecute or to conduct a fair trial, the European court should try to issue a summons to appear rather than an arrest warrant, so as to avoid exposing the foreign state official to public condemnation before trial.

5 6

See generally Antonio Cassese, Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction, 1 J. Int’l Crim. Just. 589 (2003). Council of the European Union, The AU-EU Expert Report on the Principle of Universal Jurisdiction, (EU) No. 8672/1/09, Rev. 1, Apr. 16, 2009, ¶¶ 46, R1-R17, http://europafrica. net/2009/04/28/the-au-eu-expert-report-on-the-principle-of-universal-jurisdiction/.

24 Antonio Cassese, Reflections on the Current Prospects for International Criminal Justice

C. The Establishment of Hybrid Criminal Courts The third avenue that international justice is likely to take hinges on the U.N. Security Council’s establishment of ad hoc hybrid criminal tribunals entrusted with a limited and very specific task concerning some particular situations that neither national courts nor the ICC are able or prepared to tackle. There is a need for such hybrid courts when, for instance, existing international criminal courts and tribunals lack temporal or subject matter jurisdiction over the crimes at issue and, in addition, although national courts per se are unable to dispense justice properly, the state’s relevant authorities wish their judges to have a say in the accountability process by participating in the adjudicatory proceedings. Various examples of such tribunals come to mind: the Special Court for Sierra Leone; the Special Panels for Serious Crimes established in East Timor; the Chamber for War Crimes created at the High Court in Sarajevo; the Internationalized Panels in Kosovo; the Cambodian Extraordinary Chambers, and the Special Tribunal for Lebanon. These courts are intended to be specially tailored to the unique features of the crimes they are designed to handle. To be effective, such courts must also be different from most permanent judicial bodies, which are encumbered with a huge judicial apparatus; they should be lean and inexpensive, as well as expeditious. Given these characteristics, I believe that there is room in the future for the institution of new hybrid international courts, provided, of course, that those operating today prove satisfactorily to meet the special needs for which they have been established. I am not unmindful of the objections frequently voiced against hybrid courts. The political decisions at their origin are often assailed: why set up a court with regard to one situation or country and not with regard to another, perhaps more serious, set of events? For instance, in some Arab states, many ask why an international tribunal has been established to investigate a string of terrorist attacks that occurred in 2004 and 2005 and possibly thereafter, while no tribunal has been created to deal with the short war in southern Lebanon in the summer of 2006, or the recent fighting in Gaza, with all of its exceedingly serious consequences in terms of attacks on civilian life and limb. As a judge, I can only answer that politicians make these choices. Once an international tribunal is established, it is for its judges to act professionally and to dispense justice freely and fairly, unfettered by any political consideration whatsoever. Let me add that similar considerations hold true for national courts, although perhaps to a lesser degree. The initial decision to investigate and prosecute some classes of crimes is a political choice in many domestic systems, but once this choice has been made, strictly and exclusively legal considerations become paramount and courts begin to discharge their institutional function. Have the hybrid tribunals established so far lived up to the high expectations surrounding their creation? A general appraisal of so many and such diverse mixed judicial bodies is not easy. Generally speaking, however, those courts have proved helpful, although it is widely felt that some of them (in particular, the Special Court for Sierra Leone and the Extraordinary Chambers in Cambodia) have not been—at least so far—up to the demand for swift and economic judicial action.

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The Special Tribunal for Lebanon (STL), which has just been set up, must still be tested. Will it initiate a new experiment in rapid, effective, and inexpensive criminal justice? So far the novelties of its statute and its rules of procedure and evidence have shown that significant innovations can be introduced in international justice with a view to making it more fair and efficient.7 Let me draw particular attention to five legal techniques adopted to streamline the STL’s procedures and render them very fair: (i) the new and original role assigned to the pretrial judge, who now not only manages pretrial proceedings but also ensures that a wide range of legal issues are expeditiously and fairly settled so that trial proceedings can start promptly; (ii) the full implementation of the equality of arms principle realized by putting the head of the defence office on the same footing as the prosecutor’s office; (iii) the broad role granted to victims that intend to take part in proceedings instead of testifying in court; (iv) a set of measures, alternative to detention, that are designed to give the greatest possible effect to the principle that an accused is presumed innocent until conviction; and, finally, (v) the modalities for accepting, at the judicial level, reliance on sensitive information affecting national security. This last point, in particular, should not be underestimated. Investigating crimes of terrorism requires reliance on sensitive and confidential information far more often than investigating war crimes or crimes against humanity. The need therefore arises to put in place judicial mechanisms that ensure that the use of such information by one party to the proceedings does not jeopardize the rights or interests of the other party. These clearly significant innovations should enable the STL to remedy—at least to some extent—some of the flaws that have emerged in the practice of other international criminal tribunals. The STL, however, must meet two formidable challenges. First, the tribunal must apply a sound and generally acceptable definition of terrorism in a well-balanced manner. The STL is the first international judicial institution tasked with repressing terrorism as a discrete crime. Furthermore, international terrorism is a protean notion that is difficult to handle because there is no international case law on which to rely. The second challenge the STL faces is to show beyond any reasonable doubt that international justice can be impartial, fair, and immune from any political or ideological bias. The STL is the first international criminal court operating within the Arab world. So far, these states have shown scant interest in, and in some instances have even cast a suspicious glance at, supranational criminal justice. To make them amenable to this system of justice would constitute a significant achievement. Only time will tell us whether this new attempt to bring justice into the international arena and open up new vistas will be successful.

7

For a sketchy survey of the main novelties of the STL Rules of Procedure and Evidence, see Special Tribunal for Lebanon, Explanatory Memorandum by the Tribunal’s President (2009), http://www.stl-tsl.org/sid/51.

Chapter 25 Human Rights and World Public Order: Major Trends of Development, 1980–2010 and Beyond Lung-chu Chen*

I. Introduction When Professors Myres S. McDougal and Harold D. Lasswell and I published Human Rights and World Public Order in 1980,1 our goal was to develop a “comprehensive framework of inquiry” from which to approach human rights. This essay is intended to update that work by examining the major trends of development that have emerged over the past nearly-thirty years. I will also explore probable future developments for human rights and world public order and conclude with strategies for moving toward a world community of human dignity. Our collaboration sought to address what we saw as major inadequacies in the approaches to human rights prevailing at that time: When we began to survey the field at that time, we were struck by the inadequacies that were plainly apparent in the existing human rights literature. [Professor McDougal] characterized it as “simple intellectual confusion.” The concept of human rights was often left obscure or simply taken for granted without any discussion at all. Little effort had been made to create a comprehensive map of the totality of human rights, and there had been little discussion of the detailed content of particular rights. Some of the writings were highly anecdotal and emotive. The principal focus of this vast and confused literature had been what was called the problem of implementation. Even with this problem, however, the range of alternatives considered had been highly partial and fragmented. Most recommendations for improvement in implementation had been upon isolated features of rule and procedure.

*

1

The author would like to offer his sincerest congratulations, deepest appreciation, and best wishes for Michael Reisman, who has been a longtime associate, friend, and colleague in working toward the establishment of a world community of human dignity. The author gratefully acknowledges the research assistance of Matthew Goodro, and also Rebecca Eunhye Moon, both of New York Law School. Myres S. McDougal, Harold D. Lasswell & Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human DIGNITY (1980). Hereinafter, the author will use “we” to refer to McDougal, Lasswell, and Chen.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 439-474.

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They ignored the processes of authoritative decision and effective power which impacted all changes in rules and procedures. In addition, there was a conspicuous lack of a systematic problem-solving approach that would employ all relevant intellectual skills. And finally, the subject of human rights was particularly challenging because of multiculturalism and profound philosophical, religious, and political cleavages in the world community.2

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II. The Changing Context The policy-oriented approach of the New Haven School is contextual, meaning that it recognizes that law interacts dynamically with society.3 Accordingly, an examination of the major trends of development in human rights and world public order must begin with a discussion of the relevant changes in social, community, and decisional variables that have occurred or been accentuated since 1980 and that helped to shape the interaction between law and society generally. Perhaps most importantly for this article, the last thirty years have seen steadily rising demands and expectations from the world’s people for the protection and fulfillment of human rights. No longer are world leaders who do not protect their people’s human rights able to point to modest improvements in human rights in order to placate their people. It is now possible for those people to look beyond their national borders and see what conditions are like elsewhere. In this sense, globalization can be credited with spreading the hope and promise of, as well as demand for, the protection of all rights around the globe. At the same time, there has been increasing debate about the nature of human rights; that is, are human rights universal or culturally relative. Moving forward, these trends are certain to continue to shape the context in which we think about human rights. The last thirty years have seen a dramatic rise in the pace of globalization, loosely defined as the freer movement of people, goods, services, capital, information, and ideas across national boundaries, and characterized by a deepening sense of interdependence amongst the world’s people. The rise in globalization has shaped and been shaped by changes especially in economic conditions, science, and technology.4 The end of the Cold War, brought about by the collapse of the Soviet Union in 1991, has dramatically altered the global economic and political alignment. The sharp polarization that existed during the Cold War, which saw the majority of states economically allied with either the United States or the Soviet Union, has given way to a widespread belief in the mutual benefits that can be realized through free trade. The 2 3

4

Lung-chu Chen, In Affectionate Memory of Professor Myres McDougal: Champion for an International Law of Human Dignity, 108 Yale L.J. 953, 954 (1999). Lung-chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective 14 (2nd ed., 2000); see also McDougal, Lasswell & Chen, supra note 1, at 82-93. Of the ever growing literature on globalization, for example, Globalization and Political Ethics (Richard B. Day & Joseph Masciulli eds., 2007); and Thomas L. Friedman, The Lexus and the Olive Tree (1999); and Joseph E. Stiglitz, Globalization and its Discontents (2002).

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Lung-chu Chen, Human Rights and World Public Order: Major Trends of Development, 1980–2010 and Beyond

trend since then has been towards the execution of more and more comprehensive multilateral and bilateral trade agreements, the aim of which is to lessen burdens on the free flow of goods, services, and capital across national boundaries. While freer trade has arguably helped to raise the standard of living for many people around the globe (China and India are two of the more obvious beneficiaries), precisely how many people have benefitted is the subject of intense debate. Similarly, there are many critics of the notion that free trade will cause a rising tide that will lift all boats. Critics point to a widening of the gap between relatively rich and relatively poor countries, roughly categorized as between the northern and southern hemispheres, in wealth, nutrition, resources, consumption, and commodities. One obvious consequence of this North-South divide is the deprivation and non-fulfillment of basic human rights, such as access to adequate nutrition and safe water. The increasing importance placed on free trade has also led to the creation of new and more-powerful international organizations, most notably the World Trade Organization (WTO), which is empowered to settle trade disputes amongst nations and, when it deems necessary, issue sanctions against violators of free trade. Similarly, while the increasing interconnectedness of national economies has arguably spread at least some of the benefits of economic growth, it has likewise spread the risk of economic downturns. The current global economic crisis can fairly be said to have originated with deregulation of the United States financial sector, leading to the spread of the crisis around the globe with alarming speed. The rate with which globalization has occurred has been greatly accelerated by advances in science and technology that have largely eliminated barriers to the free flow of information and ideas across national boundaries. The internet revolution has made vast amounts of information readily available to anyone with access to it. It has likewise made cross-border communication via email accessible to anyone with internet access. Cellular telephones have similarly reduced barriers to free communication. Satellite broadcast technology has made it possible for television programming to be broadcast around the globe. In the same way that a viewer in Saudi Arabia may well be able to watch a broadcast of CNN, a viewer in the United States may also be able to go online and watch a broadcast of Al Jazeera. At the same time, however, the promises of the information revolution have not been realized everywhere. On the one hand, many repressive governments go to great lengths to prevent their citizens from using the internet and other innovations for the exact beneficial purposes just described, that is, disseminating information about human rights abuses, mobilizing global public opinion, and forging strategic alliances. On the other hand, the gap between North and South described above is acute with respect to access to these technologies. This Digital Divide is an issue that must be addressed. One of the most dramatic consequences of the information revolution on human rights has been in the context of the intelligence function (including the gathering, processing, and disseminating of information) and the promoting function (the advocacy of policy alternatives, including taking initiatives to attain the enactment of prescriptions and mobilizing opinion toward particular policies). With the advent of the internet, even small local NGOs are able to communicate with the global community, disseminating information about human rights abuses they are witnessing

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and mobilizing global popular opinion for their causes. Similarly, the vast improvements in information technology over the last thirty years have made the forging of strategic alliances a much easier endeavor. It is now generally true that even small, poorly funded human rights organizations can build alliances with other organizations with relative ease. The result is a remarkably coherent global web of local, national, regional, and global nongovernmental organizations. The freer movement of people across borders means that the goal of individual autonomy, in the sense of being able to freely choose one’s nationality or national identification, is being realized by increasing numbers of people. The European Union is perhaps the best illustration of this. (It must be noted, however, that this goal is still far from being realized for many individuals.) At the same time, however, the freer movement of people and goods across state borders, coupled with the advances in information and communication technology described above, creates new and more dangerous security threats. The rise in global terrorism, and especially the terrorist attacks of September 11, 2001, and the United States’ response to those attacks, has profoundly impacted international law generally, and the changing context of human rights law specifically.5 One effect on the changing context that has been affected is to sharpen the need to balance individual rights and the aggregate interests of the community.6 Simultaneously, the United States’ resort to preemptive war in Iraq, purportedly in response to the threat posed by weapons of mass destruction and international terrorism, has once again raised the issues of collective security, human rights, and unilateral action. III. The Expanding Concept and Contents of Human Rights One of our goals in writing Human Rights and World Public Order was to build a framework for a comprehensive, holistic conception of human rights. We specified human rights broadly by identifying empirically referential claims for the protection and fulfillment of values. Values are preferred events—what people cherish. The content of human rights is, in essence, the shaping and sharing of all values—respect, power, enlightenment, well-being, wealth, skill, affection, and rectitude.7 We emphasized “respect” as the core value of human rights, defining “respect” as “an interrelation among individual human beings in which they reciprocally recognize and honor 5

6 7

See generally The Imperial Presidency and the Consequences of 9/11: Lawyers React to the Global War on Terrorism (James R. Silkenat & Mark R. Shulman eds., 2007); Terrorism and the UN, Before and After September 11 (Jane Boulden & Thomas G. Weiss eds., 2004); “Secretary General Offers Global Strategy for Fighting Terrorisms,” UN Doc. SG/SM 9757 (Mar. 10, 2005); W. Michael Reisman, Aftershocks: Reflections on the Implications of September 11, 6 Yale Hum. Rts. & Dev. L.J. 81 (2003); W. Michael Reisman, International Legal Responses to International Terrorism, 22 Hous. J. Int’L L. 3 (1999). For the intellectual task involved in such balancing, see McDougal, Lasswell & Chen, supra note 1, at 367-448, especially 415-22. See generally id. at 1-160.

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each other’s freedom of choice about participation in the value processes of the world community or any of its component parts.”8 In this sense, the corpus of contemporary international human rights law has been animated by the value of respect, as exemplified by Article I of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” At that time, human rights were generally conceived of in terms of the contents of the three major international human rights instruments, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. These instruments were regarded as enshrining fundamental rights that all persons were inherently entitled to. The rights enshrined in these three core instruments have been further amplified, supplemented, and expanded by many ancillary human rights instruments adopted before, and especially after, 1980. These ancillary instruments are of two basic types: (1) protecting particular categories of people, such as, racial and ethnic minorities, women, children, persons with disabilities, aliens, refugees, migrant workers, and indigenous peoples; and (2) dealing with particular subject matters, such as apartheid, torture, intolerance, religious discrimination, political rights, marriage, and the environment.9 These treaties also embody what has come to be known as third generation rights, that is, those embodying group or “solidarity” rights (as opposed to first generation civil and political rights and second generation economic, social, and cultural rights), with an emphasis on the aggregate. The third generation rights have been contained in a number of UN instruments, such as those protecting the right of self-determination, the rights of indigenous peoples, and the right to a healthy environment, the right to development, the right to cultural diversity, and the right to peace. The very inclusion of the word “peoples” in the African Charter on Human and Peoples’ Rights is itself a strong testimony to the importance that is now given to third generation rights, as are the explicit protections for “peoples” that are included in the Charter.10 Taken as a whole, this proliferation of ancillary human rights instruments can be seen as the prescription of the widely cherished and demanded values, the shaping and sharing of which form the ongoing concept and contents of human rights. While the following list is not exhaustive, some of the expressions of each value in the various human rights will be discussed below.

8 9

10

Id. at 451. For elaboration of the respect value, see id. at 451-796. Chen, supra note 3, at 200; see UN High Commissioner for Human Rights, Human Rights: A Compilation of International Instruments (6th rev. 2003); Council of Europe, Human Rights in International Law: Basic Texts (3d ed. 2007); Blackstone’s Statutes: International Human Rights (P.R. Ghandi ed., 4th ed. 2004). African [Banjul] Charter on Human and Peoples’ Rights art. 19-24, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).

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– 444

–

–

–

–

–

–

–

Respect. Respect refers to individual freedom of choice, equality, and recognition. The right to respect has been given effect in human rights instruments that protect the right to individual dignity and worth, the right to equal protection of the law, the right to privacy, and the right to be free from slavery and forced labor and from invidious discrimination. Power. Power refers to the ability of individuals to participate in the making and influencing of community decisions. The individual’s right to power has been prescribed in instruments that protect the right of self-determination, the right to democratic governance, the right to vote, the right of nationality, freedom of movement and residence, and the right to seek asylum from persecution, among others. Enlightenment. Enlightenment refers to the gathering, processing, and disseminating of information and knowledge. The enlightenment value has been prescribed in instruments guaranteeing the right to education, the right to participate in the community’s cultural life, the freedom of opinion and expression, and freedom of peaceful assembly and association. Well-being. Well-being refers to safety, health, and comfort. These values have been addressed in a number of human rights instruments, including those that protect the right to life, the right to liberty and personal security, and freedom from torture and cruel, inhuman, or degrading treatment or punishment. Wealth. Wealth refers to the production, distribution, and consumption of goods and services, and control of resources. This value has been prescribed in human rights instruments that protect the right to own property, the right to work, the right to equal pay for equal work, and the right to an adequate standard of living, to name just a few. The importance of the wealth value can also be seen in the prominent role that has been given to development in the modern human rights movement. Skill. Skill refers to the acquisition and exercise of capabilities in vocations, professions, and the arts. Demands for the skill value can be seen in instruments that protect the right to form and join trade unions, the right to vocational and educational training, and the right to the protection of one’s intellectual property. Affection. Affection refers to intimacy, friendship, loyalty, positive sentiments. This value is expressed in the protection of the right to marry and found a family, the freedom of association, the right of parents to direct their children’s educations, and the right of family union for refugees, among others. Rectitude. Rectitude refers to the participation in forming and applying norms of responsible conduct. Rectitude has been prescribed through the various instruments that protect the freedom of thought, conscience and religion, the right to a presumption of innocence, and the right to be free from ex post facto laws.

All in all, the tremendous rise in the number of human rights instruments, and just as importantly, the widely cherished values these instruments express, show how broadly conceived the concept and content of human rights has become.

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IV. The Emergence and Development of the Concept of Human Security In Human Rights and World Public Order, we used the term security to refer to the totality of the shaping and sharing of all widely demanded values. The concept of security to which we referred embraces two complementary ideas: minimum world order and optimum world order.11 Minimum world order refers to the minimization of unauthorized coercion and violence, as captured by Article 1 (1) of the UN Charter, namely, maintaining international peace and security. Optimum world order refers to the greatest possible production and widest distribution of all the widely demanded values that can be attained with available resources. The concept of maximum world order is stated in Article 1 (3) of the UN Charter: “The purposes of the United Nations are: … [t]o achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms … .” The concepts of minimum and optimum world order are complementary. On the one hand, it is only in the absence of unauthorized coercion and violence that all demanded values can be securely and optimally shaped and shared. On the other hand, given the level of interconnectedness that now exists on a global scale, it has become quite clear that international peace and security cannot be realized so long as individuals are denied the ability to participate in the shaping and sharing of all widely demanded values. It is in this sense that we used the term security. It was meant to encapsulate the conditions under which both minimum and optimum world order are realized. Although it has been expressed in different terms, there has been in recent decades an increasing recognition of the interconnectedness of minimum and optimum world order. Most frequently, this recognition has been expressed in terms of the three “generations” of human rights. First generation rights are those related to civil and political rights. Second generation rights are those related to economic, social, and cultural rights. Third generation rights are group rights, such as the right of self-determination, the right to a healthy environment, the right to development, and the right to peace. That each of these three generations of rights are interconnected has become widely accepted and has come to be expressed in the emerging concept of “human security.” The concept of human security is functionally equivalent to the concept of security as McDougal, Lasswell, and I used it. The concept of human security found formal expression in the United Nations Development Programme’s (UNDP) 1994 Human Development Report. The Report began: “The world can never be at peace unless people have security in their daily lives.”12 The Report went on to elaborate on the then-emerging concept of human security as centered on fulfilling human needs and maximizing the fulfillment of cherished human values. The concept of human security expressed in the 1994 UNDP

11 12

See McDougal, Lasswell & Chen, supra note 1, at 179-85; Chen, supra note 3, at 8593. United Nations Development Programme, An Agenda for the Social Summit (Summary of the 1994 Human Development Report) 1 (1994).

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Report struck a responsive chord and has since been embraced and echoed by officials—global, regional, and national—and non-officials alike. Various definitions have been offered for the concept of human security.13 Kofi Annan offered the following explanation: Human security, in its broadest sense, embraces far more than the absence of violent conflict. It encompasses human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfill his or her potential. Every step in this direction is also a step towards reducing poverty, achieving economic growth and preventing conflict. Freedom from want, freedom from fear, and the freedom of future generations to inherit a healthy natural environment—these are the interrelated building blocks of human—and therefore national—security.14

In its final report, the Commission on Human Security described the concept as follows: Human security means protecting vital freedoms. It means protecting people from critical and pervasive threats and situations, building on their strengths and aspirations. It also means creating systems that give people the building blocks of survival, dignity and livelihood. Human security connects different types of freedoms—freedom from want, freedom from fear and freedom to take action on one’s own behalf.15

While the precise definitions vary in their small details, they collectively underscore the special features of “human security.” What is most important and accounts for the true utility of the concept is that it shifts the focus of inquiry with respect to security from the nation-state, that is, national security, onto the individual human person, that is, human security. Nonetheless, while the proper focus of inquiry is indeed the individual human being rather than the nation-state, this is not to say that national security is in any way irrelevant. As has been mentioned, the concept of human security both affects and is in turn affected by national security. Human security cannot exist if the state is not secure, in the sense of being free from external coercion. Likewise the best foundation for national security is a population that is free from want and fear. Thus, the 13

14 15

See Sabina Alkire, A Conceptual Framework for Human Security (CRISE Working Paper 2, Oxford University, 2003); Fen O. Hampson & Christopher K. Penny, Human Security, in The Oxford Handbook on the United Nations 539-57 (Thomas G. Weiss & Sam Daws eds., 2007); Ramesh Thakur, Freedom from Fear: Effective, Efficient, and Equitable Security, in Irrelevant or Indispensable?: The United Nations in the TwentyFirst Century 115-30 (Paul Heinbecker & Patricia Goff eds., 2005). Press Release, Secretary General, Secretary General Salutes International Workshop on Human Security in Mongolia, U.N. Doc. SG/SM/7382 (May 8, 2000). Commission on Human Security, Outline of the Report of the Commission on Human Security 1 (2003). For the full report, see Commission on Human Security, Human Security Now (2003).

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debate as to whether human security must precede national security or vice versa is misplaced. What is important, though, is that national security can not be achieved at the expense of human security; the two concepts mutually reinforce each other. The interest in achieving human security must be pursued at all levels—global, regional, and national—and extends to the civil society. It should be clear from the preceding discussion that human security knows of no national boundaries. Whether the connection is framed in terms of minimum and optimum world order or human security and national security, the conclusion is comparable: the domestic peace and security of any given state is relative to the domestic peace and security that exists in neighboring states (broadly conceived). For this reason, efforts must be made to promote human security at all community levels—global, regional, and national. Similarly, there is an important role to be played by non-governmental actors, that is, civil society, in the promotion and fulfillment of human security. Just as human rights are too important to be left alone to state actors, so, too, is human security. Civil society can and must play a role in the fulfillment and protection of human security. V. The Development of a Comprehensive Global Bill of Human Rights In Human Rights and World Public Order, we proposed, from a functional perspective, the concept of a dynamic global bill of human rights. We sought to move beyond the restrictive UN designation of “International Bill of Human Rights,” with its narrow focus on the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. Rather than focusing solely on prescription, we sought to develop a bill of rights that would be dynamic, in the sense of addressing all of the relevant functions that are necessary to put norms into practice. The dynamic global bill of human rights possesses the following four distinctive features: – Prescription. The bill of rights seeks to protect the most intensely demanded values of human dignity. The fundamental freedoms and rights of the individual are so widely shared, intensely demanded, and highly cherished that they are given special protection by formal prescriptions. – Invocation. Special provision is made to enable individuals who allege that their human rights have been violated to challenge putative deprivations and to secure remedies before authoritative decision makers. Provision is made for specialized invocation by representatives of the community. – Application. Provision is made for applying intensely demanded individual rights prescriptions to all decision makers and community members, whether official or nonofficial. Officials at all levels of government are required to observe and promote these rights. Prescriptions designed to protect human rights are buttressed by specialized institutions of application. – Termination. Such intensely demanded prescriptions can be changed only with extraordinary difficulty or in the same way in which they were created. Special difficulties are placed in the way of formally amending or terminating intensely

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demanded prescriptions about human rights. Commonly, such prescriptions can be changed only in the ways that they were created.16

448

The dynamic global bill of human rights we described in 1980 has been greatly fortified over the past three decades by significant developments with respect to each of these features. A. Prescription Prescription is an essential function in the development of the comprehensive global bill of human rights. The vast expansion in both the quantity and quality of human rights instruments was described above in terms of the expanding concept and content of human rights.17 In brief, the core concept and content of human rights instruments has been dramatically expanded through the prescription of numerous ancillary human rights instruments. In addition to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, the following four treaties are commonly included as “core human rights instruments”: the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and United Nations Convention on the Rights of the Child. These core human rights instruments are further amplified and supplemented by a host of ancillary human rights instruments, notably: the Convention on Elimination and Punishment of the Crime of Genocide, the International Convention on Protection of the Rights of all Migrant Workers and Members of their Families, the International Convention for the Protection of All Persons from Enforced Disappearance, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention on the Rights of Persons with Disabilities, the Convention on the Status of Refugees and Protocol Relating to the Status of Refugees, the United Nations Framework Convention on Climate Change and Kyoto Protocol,18 and the Rome Statute of the International Criminal Court. Collectively, these and other ancillary human rights instruments have served to greatly expand the scope and content of prescription of human rights. While it is important not to narrow our focus of inquiry to only the prescribing function, it is also important to recognize the great achievements that have been made in this area over the last thirty years. The prescription of rights (formulation of normative standards) remains a crucial step in the process of the defense and fulfillment of rights. 16 17 18

Chen, supra note 3, at 199. For further elaboration, see McDougal, Lasswell & Chen, supra note 1, at 313-63. See supra note 9 and accompanying text. While the Framework Convention on Climate Change and the Kyoto Protocol may not appear to be human rights instruments on their faces, these protections are excellent examples of the third generation group right to a healthy environment.

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B. Invocation Complementing these achievements with respect to prescription have been advances in the effectiveness of the invoking function. These improvements have happened both in terms of formal and informal invocation. Formal invocation has been greatly improved through the creation of new institutions that are available for invocation and through an expansion of the role of existing institutions to include invocation responsibilities. Informal invocation has been improved through the creation of the United Nations High Commissioner for Human Rights, which has become an effective tool for informally remedying human rights abuses. The United Nations High Commissioner for Human Rights (UNHCHR), created in 1993, is the “United Nations official with principal responsibility for United Nations human rights activities,”19 and is charged with a broad range of responsibilities, including promoting and protecting the effective enjoyment of rights by all people, making recommendations to other UN bodies for purposes of improving the promotion and protection of all human rights, promoting and protecting the right of development, and advising and providing technical and financial support to states and regional human rights organizations in support of human rights actions and programs.20 In addition to these formal responsibilities, the UNHCHR has been a very effective means of informal invocation, in the sense of fostering the informal resolution of matters of concern brought to its attention. Another important development in the area of invocation has been the establishment of the United Nations Human Rights Council (UNHRC) in 2006.21 The UNHRC is charged with a number of important responsibilities, including the Universal Periodic Review procedure for all 192 United Nations Member States. Particularly relevant to the invocation function is the UNHRC’s Complaints Procedure, which requires complaints to be filed by persons or groups of persons alleging their human rights have been violated or by persons or groups of persons (including NGOs) with direct and reliable knowledge of such violations.22 The Complaints Procedure also includes provisions for the participation of the complainant in the course of its investigation. This right of individual petition of the UNHRC marks an important step forward in the effectiveness and democratization of the invocation function. 19 20

21

22

G.A. Res. 48/141, ¶ 4, U.N. Doc. A/RES/48/141 (Dec. 20, 1993). Id. at ¶ 4 (a-d). On the UNHCHR, see Bertrand G. Ramcharan, The UN High Commissioner for Human Rights: The Challenges of International Protection (2002). The UNHRC was created by the General Assembly on March 15, 2006. G.A. Res. 48/141, U.N. Doc. A/RES/60/251 (March 15, 2006). The Council replaced the United Nations Commission on Human Rights (CHR), the last session of which concluded on March 27, 2006. There have been several important changes brought about by the creation of the Human Rights Council, including the Periodic Review procedure, discussed above, and the creation of the Human Rights Advisory Committee, which serves as a HRC thinktank. H.R.C. Res. 5/1, ¶ 87 (d), U.N. Doc. A/HRC/RES/5/1 (June 18, 2007).

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450

The “special procedures” established formerly under the Human Rights Commission and now under the Human Rights Council (HRC) play a highly important role in the invocation and application of human rights norms under the UN system. Variously named as “Special Rapporteur,” “Working Group,” “Independent Expert,” “Representative” or “Special Representative” of the Secretary-General, these special procedures or mechanisms—thematic or country specific—perform a number of functions. These functions include: dispatching special fact-finding missions; investigating allegations of human rights violations by making direct inquiry to the government concerned; taking urgent action to deter human rights violations that are imminent; making public statements denouncing human rights violations and appeals for actions; undertaking studies and making recommendations; and submitting annual reports.23 With their exponential growth, these special procedures, extending from civil and political rights to economic, social and cultural rights, have dealt with a wide range of subject matters, including: disappearances, arbitrary detention, extrajudicial executions, torture, human trafficking, violence against women, sale and abuses of children, mercenaries, contemporary forms of racism, persecutions arising from religious discrimination and intolerance, and gross violations of human rights in particular states. The right of individual petition is also protected by regional human rights bodies, including the European Convention on Human Rights, which was amended in 1998 to allow for individuals and groups to petition the European Court of Human Rights directly24 and the Inter-American Commission on Human Rights.25 C. Application The past three decades have seen important developments in terms of the applying function at all three community levels. At the global level, the United Nations Security Council has come to play a revitalized role in dealing with cases of gross violations of human rights. The gridlock that existed during the Cold War has given way, albeit haltingly, to the Security Council reimagining its role from an interstate 23

24

25

See Henry J. Steiner, Phillip Alston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals 765-91 (3d ed. 2007); International Human Rights Lawyering: Cases and Materials 330-72 (Ralph G. Steinhardt, Paul L. Hoffman & Christopher N. Camponovo eds., 2009). Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, art. 34, May 11, 1994, 33 I.L.M. 943 (“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto.”). American Convention on Human Rights, Article 44, Nov. 22, 1969, 1144 U.N.T.S. 17955 (“Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party.”).

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peacekeeper to an intrastate peacekeeper. In practical terms, this shift has lead to the Security Council authorizing the use of force for humanitarian interventions, as it did in Somalia in 1992 and in Rwanda in 1994. While these interventions have met with mixed success, what is significant in terms of the applying function is the emergence of the Security Council as a potentially powerful applying institution. The International Court of Justice has had relatively few occasions to deal with the application of international human rights law during the first 50 years of its existence. However, beginning in the late 1990s, the Court received several applications accusing violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in the context of urgent humanitarian crises, including armed conflicts in the former Yugoslavia and in the Democratic Republic of the Congo. Consequently, the Court was able to deliver several pioneering judgments and would appear to be a promising arena for adjudicating important human rights disputes between nation-states.26 The creation of the United Nations Human Rights Council has also been an important development with respect to the applying function. The system of Universal Periodic Review allows the HRC to measure the overall compliance of all United Nations member states with the various UN human rights instruments. Similarly, the complaint mechanism allows the HRC to measure compliance with specific human rights obligations in the case of specific allegations of abuse. Also important at the global level has been the establishment of a number of committees that are charged with implementing specific human rights treaties. Notable among these are: the Human Rights Committee (charged with overseeing implementation of the International Covenant on Civil and Political Rights), the Committee on Economic, Social, and Cultural Rights (charged with overseeing implementation of the International Covenant on Economic, Social, and Cultural Rights), the Committee on the Elimination of Racial Discrimination (charged with overseeing implementation of the International Convention on the Elimination of All Forms of Racial Discrimination), the Committee on the Elimination of Discrimination of Women (charged with overseeing implementation of the Convention on the Elimination of All Form of Discrimination again women), and the Committee Against Torture (charged with implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and the Committee on the Right of the Child (charged with overseeing implementation of the Convention on the Rights of the Child). These committees serve important applying functions, including reporting on member states’ compliance with their relevant instrument and, in some cases, receiving petitions of alleged abuses.27

26 27

See Louis Henkin, Sarah H. Cleveland, Laurence R. Helfer, Gerald L. Neuman & Diane F. Orentlicher, Human Rights 479-521 (2d ed. 2009). See Henkin et al., supra note 26, at 444-79; Steiner et al., supra note 23, at 844-924; Sarah Joseph, Jenny Schultz & Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2d ed. 2005).

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452

At the regional level, the various regional human rights courts have played an expanded role over the last 30 years. As noted above, the European Court of Human Rights streamlined its petitioning procedures in 1998, allowing now for individuals to petition the Court directly. (In the past, petitions were brought to European Commission of Human Rights, which would decide whether a case should be brought to the Court.) The Inter-American Court of Human Rights has played an increasingly significant role as an applier of human rights in the Americas since its establishment in 1979. There have also been positive steps made in Africa to improve the effectiveness of the application function at the regional level, including the 2006 establishment of the African Court on Human and Peoples’ Rights, although these efforts have not yet produced tangible results.28 Perhaps most significant in the advances made in the applying function has been the interpenetration of human rights into domestic courts. Indeed, domestic courts and national human rights commissions are the most common venues for individuals to bring grievances of human rights abuses. Domestic courts have at times extended their reach to assert jurisdiction over human rights violations that have occurred beyond their own borders. In the landmark Filartiga case,29 for example, the United States Court of Appeals for the Second Circuit held that federal courts could exercise jurisdiction over non-U.S. citizens for alleged abuses (torture) committed outside the United States. Another famous example of domestic courts asserting jurisdiction over human rights abuses committed outside their jurisdiction was Spain’s attempted prosecution of Augusto Pinochet, who had been the head of state in Chile, for human rights abuses alleged to have been committed against Spanish nationals in Chile. While these cases are well known because they involve attempts of domestic courts to assert jurisdiction over foreign nationals for abuses committed outside of their jurisdiction, domestic courts have been much more active as a source of application for abuses committed within their jurisdiction. D. Termination With respect to termination, the increasing intensity with which human rights are demanded has served to make their termination all the more difficult. Once demanded and prescribed, it will be only with great effort that any of these rights may be terminated. Indeed, it seems exceedingly unlikely that this will happen in the foreseeable future. 28

29

See International Human Rights Lawyering, supra note 23, at 442-660; Henkin et al., supra note 26, at 568-698; Steiner et al., supra note 23, at 925-1083; Frans Viljoen, International Human Rights Law in Africa (2007). Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). For an excellent commentary, see Harold Hongju Koh, Filartiga v. Pena-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture, in John E. Noyes, Laura A. Dickinson & Mark W. Janis, International Law Stories 45-76 (2007). See also Jordan J. Paust, Jon M. Van Dyke & Linda A. Malone, International Law and Litigation in the U.S. 316-452 (2d ed. 2005).

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The substantial obstacles to the termination of widely demanded human rights that were described in Human Rights and World Public Order remain in place today.30 If there has been any change in this respect, it has been that termination has been made that much more difficult after thirty additional years of these rights being intensely demanded and protected. It is still the case that rights will ordinarily only be susceptible to change in the same way in which they were created. Thus, for example, any change to the International Covenant on Civil and Political Rights would probably require formal and nearly unanimous approval. At any rate, it would only be with great difficulty that any of these intensely demanded rights could be undermined or terminated. VI. A Comprehensive Concept and Framework of Implementation – Processes of Authoritative Decision and Effective Power The traditional focus on “measures of implementation” merely in terms of rules and procedures was too narrow, partial, and fragmented. The processes of authoritative decision and effective power, which affected all changes in rules and procedures, were generally ignored. In Human Rights and World Public Order, we emphasize the importance of paying attention to processes of authoritative decision at all community levels—the most comprehensive being the global process of authoritative decision.31 This comprehensive process is characterized by a continuous flow of decisions made by the persons who are expected to make them, in accordance with criteria expected by community members, in established structures of authority, with enough bases in power to secure consequential control, and by authorized procedures. This ongoing process of authoritative decision interacts constantly with the global process of effective power in which decisions are in fact taken and enforced by severe deprivations or high indulgences, regardless of the wishes of any particular actor. In other words, the interplay of the global process of authoritative decision and the global process of effective power underscores the dynamic relations between international law and international politics.32 Hence, it is important to approach human rights problems by relating to these processes and the larger context of political, economic, social and cultural condi30 31 32

McDougal, Lasswell & Chen, supra note 1, at 360-63. Id. at 161-363. See id. at 161-67, 217-19; see also Harold D. Lasswell & Myres S. McDougal, Jurisprudence For a Free Society: Studies in Law, Science and Policy, 141-77, 187-93 (1992); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, in Myres S. McDougal & W. Michael Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective 191-286 (1981); Myres S. McDougal, W. Michael Reisman & Andrew Willard, The World Process of Effective Power: The Global War System, in Myres S. McDougal & W. Michael Reisman, Power and Policy in Quest of Law 353 (1985).

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tions. The ongoing debate of universality of human rights versus cultural relativism of human rights arises in no small part from the fact of multiculturalism.33 With the passage of the past thirty years, the need for such a comprehensive orientation has become ever more apparent, without in any way downgrading the significance of institutional rules and procedures for the protection of human rights. Within the United Nations, the ongoing controversy about the functioning of the Human Rights Commission in the past and the Human Rights Council at present is quite instructive. They have generally been characterized as “highly politicized.”34 Interactions between law and politics operate at the regional and national levels as much as at the global level. Hence, to be fully comprehensive, processes of authoritative decision in their interplay with processes of effective power at the regional and national levels also need to be considered in dealing with the protection of human rights. At the regional level, the achievement of the European Convention system has been highly notable. The Inter-American system and the African system have also made remarkable advances during the past three decades.35 Despite achievements at the global and regional levels, national communities remain primary arenas for the protection and fulfillment of human rights. The importance of human rights protection through domestic courts, such as in the United States, or national human rights commissions cannot be overemphasized. The diversification and multiplication of the process of authoritative decision reflect an increasing recognition that the comprehensive process of authoritative decision can not be merely dictated from those at the top (that is, those who make decisions at the international level) to those who are the ultimate recipients of human rights: individual human beings. Thus conceived, it is readily apparent that the decisions made at all community levels (local, national, regional, and international) have a human rights dimension. In many ways, it is actually the process of authoritative decision that occurs at the local level that is likely to have the most tangible effect on any individual person. VII. Increasing Effectiveness in Performance of Relevant Decision Functions The traditional approach to the making and application of law has focused on a wellknown tripartite division of functions: legislative functions (responsible for making 33

34

35

See generally A. Kamal Aboulmagd et al., Crossing the Divide: Dialogue Among Civilizations (2001); Henkin et al., supra note 26, at 99-112, 168-80; Rosalyn Higgins, Problems and Process: International Law and How We Use It 95-110 (1994); Steiner et al., supra note 23, at 517-665; W. Michael Reisman, Mahnoush H. Arsanjani, Siegfried Wiessner & Gayl S. Westerman, International Law in Contemporary Perspective 623-44 (2004). See Philip Alston, Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council, 7 Melbourne J. Int’l L. 185 (2006); Kenneth Roth, The UN Reform Agenda and Human Rights, in Irrelevant or Indispensable?, supra note 13, at 131-39. See supra note 28.

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laws), executive functions (responsible for applying laws), and judicial functions (responsible for interpreting and enforcing laws). In Human Rights and World Public Order, we stressed the need for a more functional approach to the making and applying of law. In addition to the prescribing (that is, legislating) and applying (executive and judicial) functions, we urged that other related functions be taken seriously: intelligence, promotion, invocation, termination, and appraisal. It is only by focusing on these seven decision functions that we can comprehensively approach the task of making and applying law.36 While each of these seven decision functions is distinct, each function is closely related to all of the others. Indeed, the effectiveness of the performance of each function depends on how well each of the other functions is being performed. This constant need to perform all seven decision functions provides ample opportunity for all different actors—state or non-state, governmental or non-governmental, for profit or nonprofit, groups or individuals—to participate in various activities in the defense and fulfillment of human rights. This, in turn, would foster wide and democratic participation at all community levels. Thus conceived, it appears that a highly encouraging trend of the last thirty years has been the increasing effectiveness in the performance of the relevant decision functions. Each of these functions is discussed seriatim. A. The Intelligence Function The intelligence function refers to the gathering, processing, and disseminating of information essential to decision making. The democratization of the intelligence function, largely attributable to advances and diffusion in information and communication technologies, cannot be overstated. This democratization has been most acute with respect to the vertical dissemination of information from the local level up to other community levels. Whereas in the past, an individual or group working at the local level would have had relatively few means of disseminating information on abuses that had occurred or were occurring, and would have likely been unable to disseminate that information even up to officials at the national level, it is now entirely possible that individuals and groups working at the local level can disseminate information on human rights abuses quickly and efficiently to interested parties around the globe. Given the importance of raising global awareness of human rights abuses, this democratization of the intelligence function is an important development in the protection and fulfillment of human rights. Furthermore, the gathering and processing of information essential to decision making is often done most effectively by organizations working on the ground where abuses are occurring. Very often, the groups with the most useful information regarding a given issue will be nongovernmental organizations—local, national, and international. This fact has lead to an increasingly prominent role for these NGOs in other decision functions, especially the promoting and prescribing functions. 36

For the seven decision functions, see McDougal, Lasswell & Chen, supra note 1, at 248-313; Lasswell & McDougal, supra note 32, at 1155-262.

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B. The Promoting Function 456

The promoting function refers to the advocacy of general policies and the urging of proposals. The same advances in information and communication technologies that have led to the more effective and democratic functioning of the intelligence function have led to similar improvements in the promoting function. In the same way that individuals and groups working at the local level are now better able to disseminate relevant information, so too are those groups able to more effectively advocate for policy alternatives. This is done largely on an informal level: groups and individuals disseminate relevant information and urge the recipients of that information, which may well be individuals and groups that are thousands of miles away, to take some action, for example, by bringing pressure on relevant national authorities to respond in some way. There have also been encouraging developments regarding more formal avenues of promotion. This has been seen largely in the increased access of nongovernmental organizations to the relevant authorities charged with the prescribing function, for the purpose of advocating alternative policy prescriptions. This will be further discussed in section X. C. The Prescribing Function The prescribing function refers to the projecting of authoritative community policies about the shaping and sharing of values. At its most formal level, the making of international human rights instruments, the prescribing function, continues to be largely dominated by state actors. This is not to say non-state actors do not play any role in formal prescription; that role, however, is usually in the intelligence and promoting functions that precede formal prescription. In this way, non-state actors may be quite influential in convincing state actors to adopt a favored position to advance in the process of formal prescription. Even with respect to formal prescription, there have been notable examples in recent years of non-state actors either participating directly or indirectly in the process, including the formulation and adoption of the United Nations Convention on the Rights of the Child, the Mine Ban Treaty (officially the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction), and the Rome Statute of the International Criminal Court. As prescription becomes less formal, non-state actors are able to play a more direct role. This is especially so with the prescription of customary international law, which is in large part made up of generally shared expectations. Again, advances in information and communication technologies have greatly democratized the means by which widely shared expectations are expressed. Thus, consensus, or something close to it, with respect to a given expectation is now much more easily achieved.

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D. The Invoking Function The invoking function refers to the provisional characterization of events in terms of community prescriptions. Several important trends concerning the invoking function were discussed above in section V. First, the expanding availability of the right of individual petition to human rights courts and a number of UN bodies has greatly improved the effectiveness of the invoking function. Whereas in the past, individuals who sought to invoke authoritative decision with respect to alleged human rights abuses were, for the most part, dependent on state actors taking up their cause. The democratization of the invoking function that is occurring as a result of the right of individual petition is beginning to free individuals to more freely assert their human rights by seeking redress from authoritative decision makers. Also important to the increased effectiveness of the invoking function has been the creation of the United Nations High Commissioner for Human Rights. As discussed in section X, the UNHCHR has broad powers of invocation and has proven to be an invaluable tool in this important function. The monitoring of abuses, a form of informal invocation, is an important role of many nongovernmental organizations. As with the intelligence and promoting functions, the effectiveness of nongovernmental monitoring has been greatly improved by advances and diffusion in information and communication technologies. The ability of these groups to bring about tangible changes concerning abuses they are monitoring is an important trend in the development and democratization of the invoking function. E. The Applying Function The applying function refers to the final characterization and execution of prescriptions in concrete situations. The applying function is largely dominated by state and intergovernmental actors. There is some formal participation in the applying process by non-state actors, for example, the representation of victims in court proceedings by NGOs. Furthermore, to the extent that individuals and non-state actors are able to more effectively participate in the invoking function, so too are they better able to participate in the applying function. In a more dynamic and comprehensive sense, it is essential to go beyond the rigid concept of “enforceability” in thinking about compliance with the established norms. Thus, application would entail six inter-related sub-goals—prevention, deterrence, restoration, rehabilitation, reconstruction, and correction. Prevention seeks to develop in decision makers strong preferences to conform to international human rights norms and to minimize the probabilities of violations. Deterrence, unlike prevention, is concerned with something that is concrete and imminent, a potential violation that has emerged and been clearly posed. Once human rights violations occur, the sub-goal of restoration comes into play, seeking to bring an early end to the violations. Rehabilitation is concerned with providing compensation or other remedy for deprivations sustained. Reconstruction is designed to make structural changes in the violating state in order to minimize future occurrences of human rights violations.

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Finally, the sub-goal of correction is directed to individual persons held accountable for conduct offensive to common humanity, with a view to changing their predispositions. Each sub-goal is distinct, yet all are closely related. The relative importance of each is a function of the context involved.37 F. The Terminating Function The terminating function refers to ending a prescription or arrangement within the scope of a prescription. As was discussed in section V above, given the intensity with which human rights are demanded, once prescribed, it is very difficult for them to be terminated. In other words, there is a direct correlation between the intensity of demand for a given right and the difficulty with which it is terminated. As with other decision functions, advances in information and communication technologies have made the expression of these demands significantly easier for individuals and groups whose voices may not have been heard in the past. G. The Appraising Function The appraising function refers to evaluating performance in decision process in terms of community goals. This is perhaps the most inherently democratic of the decision functions, because any actor who so desires can measure the effectiveness of performance against preferred community goals. It is, however, largely dependent on the intelligence and promoting functions. The effective gathering, processing, and disseminating of relevant information is essential to the effective evaluation of past performance. Likewise, the existence of policy alternatives is essential in assessing whether a past practice is preferable to some alternative. In this sense, advances in the intelligence and promoting functions also help to increase the effectiveness and democratization of the appraisal function. Furthermore, while the performance of the appraisal function is largely democratic, it is only useful to the extent that the invoking function is equally democratic; the ability to evaluate past performance is of little consequence to one who is unable to advocate an alternative to a practice he or she has found wanting. In this respect, the effectiveness of the appraisal function is even more dependent on the effectiveness of the promoting function. VIII. From State Sovereignty Toward State Responsibility to Protect Traditionally, the concept of sovereignty distinguished between two polar concepts: domestic jurisdiction and international concern. According to this traditional view, areas of international concern were largely restricted to breaches of the peace and 37

See Chen, supra note 3, at 357-66. For the initial formulation of these sanctioning goals, see Richard Arens & Harold D. Lasswell, In Defense of Public Order: The Emerging Field of Sanction Law (1961). For a more recent, comparable formulation of specific goals in the context of maintaining international peace and security, see Boutros Boutros-Ghali, An Agenda for Peace 1995 (2d ed. 1995).

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the treatment of a state’s nationals while they were in another state’s jurisdiction. By contrast, the internal affairs of a sovereign state were considered subject to the state’s domestic jurisdiction, and hence beyond the pale of international concern. This distinction between areas of domestic jurisdiction and areas of international concern was closely linked to the notion of territorial integrity, that is, the right of a sovereign to be free from external coercion within his or her sphere of exclusive domain. According to this traditional concept of sovereignty, human rights were regarded as a matter of domestic jurisdiction, permitting no outside interference. This traditional notion of human rights began to erode with the United Nations Charter. There are two overarching and interdependent ideas found in Charter: (1) the need to protect international peace and security (minimum world order) and (2) the importance of promoting and protecting human rights (optimum world order) in order to achieve international peace and security. Article 1(3) of the Charter, for example, declares one of the UN’s primary purposes to be, “[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”38 The Charter goes on to describe specific areas in which the UN will work: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without discrimination as to race, sex, language, or religion.39

Thus, one of the great advances made by the UN Charter was to explicitly draw the connection between international peace and security and protecting human rights and to begin to bring human rights into the realm of international concern.40 The traditional notion of sovereignty began to shift in response to the apartheid government in South Africa. The debate that was waged at the United Nations as if and how the international community should confront the issue of apartheid raised two important questions that continue to be debated today: 38 39 40

U.N. Charter art. 1, para. 3. U.N. Charter art. 55. Compare the UN Charter to the Covenant of the League of Nations in this respect. Article 15(8) of the Covenant declared, “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party the Council shall so report, and shall make no recommendation as to its settlement.” League of Nations Covenant art. 15, para. 8.

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(1) the relationship between the human rights provisions of the UN Charter and the domestic jurisdiction clause in Article 2(7) …; and (2) the circumstances under which gross human rights violations (and especially those with no significant international element such as the involvement of foreign nationals or the prompting of refugee flows) can be considered a threat to international peace and security and thus warrant Security Council measures under Chapter VII.41

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While the Security Council ultimately adopted an arms embargo against the apartheid government in 1977, it was not until the end of the Cold War, that the traditional notion of sovereignty came to be seriously questioned by the Security Council as an institution. The post-Cold War period saw an eruption of ethnic and religious intra-state conflicts, egregious human rights violations and abuses such as “ethnic cleansing” and genocide perpetuated in the name of “sovereignty.” These events have brought home the imperative of collective community response. A profound debate has been sparked about the nature of sovereignty: Sovereignty at what cost? What does “state sovereignty” actually mean in today’s world? Sovereignty in today’s world means “popular” sovereignty—people are at the center of a state.42 This notion of popular sovereignty reflects the fact that a government derives its legitimacy from the consent and support of its people, as stipulated in Article 21(3) of the Universal Declaration of Human Rights. When ruling elites abuse and oppress their people, rather than protecting them, they can no longer claim immunity in the name of defending “sovereignty,” as has been done so many times in the past. This doctrine is known as the responsibility to protect or R2P. The Canadian government was the first to formally take up the issue of the responsibility to protect. It formed the International Commission on Intervention and State Sovereignty (ICISS), which issued its report The Responsibility to Protect in December of 2001. The Commission summarized the basic principles of the responsibility to protect doctrine as follows: A. B.

41 42

State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or

Steiner et al., supra note 23, at 836. See, e.g., Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World 67-85 (2000); Gordon Smith & Moises Naim, Altered States: Globalization, Sovereignty and Governance (2000); International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Research, Bibliography, Background 5-13, 235-42 (2001); W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866 (1990); Kofi Annan, Two Concepts of Sovereignty, The Economist 353 (Sept. 18, 1999).

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avert it, the principle of non-intervention yields to the international responsibility to protect.43

There are three components of the responsibility to protect: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. This emphasis on the responsibility to protect has struck a responsive chord in the world community. It is clear that in order to secure the goal of protection, it will be necessary to undertake humanitarian intervention when occasions call for it. Accordingly, recent debate has centered on several important questions regarding humanitarian intervention. Who may be authorized or permitted to take action in order to repel egregious violations of human rights and to protect human lives and human rights? What actions may be taken? Under what conditions may action be taken? What procedures should be followed prior to action being taken?44 While not all of these questions have been definitively resolved by the international community, several important principles have emerged with respect to humanitarian intervention. First, collective, rather than unilateral, action is definitely preferred. Also, given the profound effect that gross human rights violations and abuses have on the maintenance of international peace and security, the UN Security Council has the most important role to play in this regard. In light of the atrocities committed in Bosnia, Kosovo, Rwanda, Darfur, and other states, the Security Council must not shirk this responsibility. IX. Imposition of Individual Criminal Responsibility The applying function serves a number of important and interrelated goals: prevention, deterrence, restoration, rehabilitation, reconstruction, and correction. The last of these goals, correction, encompasses holding individuals criminally accountable for gross human rights violations and abuses. The imposition of criminal sanctions for gross human rights violations and abuses is a legacy of the Nuremberg trials.45 One 43

44

45

International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report ot the International Commission on Intervention and State Sovereignty, at xi (2001). See, e.g., Human Rights, Intervention, and the Use of Force (Philip Alston & Evan MacDonald eds., 2008); Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (2000); Brian D. Lepard, Rethinking Humanitarian Intervention (2002); Ramesh Thakur, Humanitarian Intervention, in Oxford Handbook on the United Nations, supra note 13, at 387-403; Siegfried Wiessner & Andrew R. Willard, Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity, 93 Am. J. Int’l L. 316 (1999). See generally The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (David B. Blumenthal & Timothy L.H. McCormack eds., 2008); The Nuremberg Trials: International Criminal Law Since 1945 (Herbert R. Reginbogin & Christoph J.M. Safferling eds., 2006); War Crimes: The Legacy of Nuremberg (Belinda Cooper ed., 1999).

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of the key developments of the Nuremberg trials was the formal recognition that all decisions in depriving human lives and human rights are made by human decisionmakers, not “the abstract will of the State.” Thus, the theretofore accepted defense of “following orders” was rejected at Nuremberg. Following Nuremberg, individual offenders of war crimes, crimes against the peace, and crimes against humanity cannot be excused by invoking “the will of the State” or the doctrine of superior orders; the individual offender is held criminally accountable directly under international law. After Nuremberg, however, the important developments that had been made with respect to international criminal responsibility gave way to the extreme polarization caused by the Cold War. Especially affected was the United Nations’ Security Council. Thus, during this period a number of human rights atrocities, for example, the killing fields of the Khmer Rouge and the brutal suppression of the East Timorese independence movement by Indonesia, did not receive appropriate attention, either from the Security Council or from the world at large. With the end of the Cold War, however, there have been impressive developments with respect to the imposition of criminal sanctions for gross human rights abuses. As has been noted, the post-Cold War period has been characterized by an eruption of intra-state conflicts. Generated by ethnic and religious differences, these conflicts, such as the ones in the former Yugoslavia and Rwanda, have resulted in gross violations of international human rights law, including genocide and “ethnic cleansing.” The United Nations Security Council, just as the concerned citizens of the world, has had no choice but to deal with these horrendous situations. The Security Council’s response has been largely characterized by the imposition of individual criminal responsibility. In this regard, the post-Cold War period has seen two important developments: (1) the creation of ad hoc special tribunals charged with imposing criminal responsibility for gross human rights violations that occurred during specific conflicts; and (2) the establishment of the International Criminal Court, the first permanent body charged with imposing criminal accountability for gross human rights violations and abuses in general, that is, not confined to a specific conflict. The ad hoc criminal tribunals established by the Security Council, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), were an important step in the development of criminal responsibility for gross human rights abuses and violations.46 The ICTY, established in 1993 in response to war crimes committed during the conflict in the Balkans in the 1990s, has convicted more than 60 individuals for serious human rights violations and abuses. Amongst those charged by the ICTY was the former head of state of Serbia, Slobodan Milosevic, who died in detention while proceedings against 46

See Simon Chesterman, Thomas M. Franck & David M. Malone, Law and Practice of the United Nations: Documents and Commentary 119-31 (2008); International Human Rights Lawyering, supra note 23, at 373-417; Richard Goldstone, International Criminal Court and Ad Hoc Tribunals, in Oxford Handbook on the United Nations, supra note 13, at 463-78; Charles Norchi, Human Rights: A Global Common Interest, in The United Nations: Confronting the Challenges of a Global Society 79, 96-104 (Jean E. Krasno ed., 2004).

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him were still ongoing. The ICTR, established in response to the murder of hundreds of thousands of ethnic Tutsi in Rwanda in 1994, has convicted 29 individuals for crimes including genocide, crimes against humanity, and war crimes. Though ad hoc in nature, these special tribunals are an important landmark in the global effort to protect human lives and human rights. Perhaps most importantly, they rekindled the legacy of Nuremberg and gave further impetus to the grand coalition to establish a permanent international criminal court. The culmination of widespread efforts to establish an international criminal court was the adoption of the Rome Statute of the International Criminal Court in 1998. The Rome Statute entered into force on July 1, 2002; and with it, the International Criminal Court, based in The Hague, was established.47 The ICC’s jurisdiction extends to three crimes: genocide, crimes against humanity, and war crimes. (The Rome Statute also grants the Court jurisdiction over the crime of aggression. However, consensus has not been reached by the States Parties with respect to how to define for the crime of aggression. Thus, while the crime of aggression may be prosecuted in the future, as of now it cannot be.) While the Court does not have universal jurisdiction, it may assert jurisdiction in three situations: (1) if the accused is a national of a State Party or of a state that has otherwise accepted ICC jurisdiction; (2) if the alleged conduct took place within the jurisdiction of a State Party or a state that has otherwise accepted ICC jurisdiction; and (3) if the situation being investigated was referred to the ICC by the United Nations Security Council. ICC jurisdiction that is asserted on the basis of a Security Council referral may be asserted irrespective of the nationality of the accused. Thus, the ICC has asserted jurisdiction over alleged crimes committed in the Darfur region of Sudan, despite Sudan not being a state party to the Rome Statute, because the situation was referred to the ICC by the Security Council. Unsurprisingly, Sudan rejects the legitimacy of such jurisdiction. Another important feature of the Court is the principle of complementarity. Under this principle, the Court will ordinarily defer to the domestic jurisdiction of state. Thus, the ICC will not assert jurisdiction over an alleged offense, even if it that offense comes within its statutory mandate, if domestic authorities are already investigating or prosecuting it. Only if domestic authorities are unwilling or unable to act will the ICC assert its jurisdiction. While the mere establishment of the Court must be regarded as an impressive advance for international criminal law, it has also seen some significant setbacks and been subject to some criticism. Most significantly, the United States is not a State Party to the Rome Statute.48 The U.S. has criticized the ICC on several grounds, in47

48

See generally From Nuremberg to the Hague: The Future of International Criminal Justice (Philippe Sands ed., 2003); M. Cherif Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998); The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese et al. eds., 2002); Mahnoush Arsanjani, The Rome Statute of the International Criminal Court, 93 Am. J. Int’l L. 22 (1999). President Clinton did sign the Rome Statute on December 31, 2000. In doing so, however, he qualified his signature by saying that he would not submit the Statute to the Senate for

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cluding that it threatens U.S. sovereignty and that it is “an institution of unchecked power.”49 As with any important international agreement, lack of support from the United States, as well as Russia and China, may threaten the Court’s future prospects. Another criticism of the Court has focused on the situations the Court has investigated and prosecuted. All four of the situations that are now being investigated and prosecuted by the Court—Uganda, the Central African Republic, the Democratic Republic of the Congo, and Darfur, Sudan—are of African countries. According to the ICC, it was “established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.”50 Given the relative reluctance of the Security Council to intervene militarily in response to human rights abuses and violations, this has been the most important contribution of the establishment of a permanent international criminal court: to serve notice to power elites of the world that they must behave while in power. With that said, however, it is probably still too early to evaluate how successful the ICC has been with respect to this deterrence. X. The Vital Role of Civil Society One of the themes of this article has been that human rights are simply too important, the task of their protection and fulfillment too enormous, to be left alone to any single group of actors. So, too, is this true with respect to governmental and nongovernmental actors; there can be no government monopoly on the protection and fulfillment of human rights. Rather, the non-governmental sector—the civil society, including business and exemplified by non-governmental organizations (NGOs)— must and does play an active role. In Human Rights and World Public Order, we distinguished between public order and civic order.51 Public order is sustained by a high degree of governmental regulation and coercion, while civic order entails only a modest or mild degree of governmental regulation and coercion. This public-civic order distinction is a functional equivalent of the government-civil society distinction. The degree of the protection and fulfillment of human rights can be ascertained by the expansion or contraction of civic order. In a free, democratic, open society, people enjoy a large domain of civic order. The significant role of civil society can be seen in the Charter of the United Nations. First, NGOs played an important role at the San Francisco Conference that framed the UN Charter. These organizations were instrumental in having human

49

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its advice and consent. In May of 2002, President Bush “unsigned” the Rome Statute. See Steiner et al., supra note 23, at 1301. Marc Grossman, Undersecretary for Political Affairs, American Foreign Policy and the International Criminal Court, Remarks to the Center for Strategic and International Studies (May 6, 2002) (reprinted in id. at 1302–05). International Criminal Court, About the Court, http://www.icc-cpi.int/Menus/ICC/ About+the+Court/. McDougal, Lasswell & Chen, supra note 1, at 799-860.

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rights protection prescribed as a major goal of the UN. The important role for civil society in the UN system is also formally reflected in the Charter, which provides that, “[t]he Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence.”52 There are currently more than three thousand NGOs that enjoy this consultative status with the Economic and Social Council (ECOSOC).53 With the growing trend towards “global governance,” the role of NGOs has been greatly fortified. Secretary-General Kofi Annan in many of his reports and statements emphasized that NGOs are not only consultative organizations, but have for all practical purposes become partners of the UN and its related organizations in their work.54 Indeed, the NGOs have performed each of all relevant decision functions in varying degrees. – The Intelligence Function. The intelligence function is one of the most susceptible to the participation of non-governmental actors. Fact-finding and the exposure of facts of human rights deprivations and non-fulfillment is one of the core competencies of a number of international human rights organizations, including Human Rights Watch, Human Rights First, and Amnesty International. Exposure of human rights abuses and violations by NGOs has rendered a tremendous service. In some ways, NGOs are even more effective with respect to the intelligence function than state actors, because they are less burdened by external constraints, especially political pressure. Furthermore, the advance and diffusion of technology, including the internet, has enabled NGOs to engage in the intelligence function even more effectively. Thus, even small, local organizations may now be able to quickly and effectively raise global consciousness of a particular abuse. – The Promoting Function. As with the intelligence function, the promoting function, or the advocacy of policies and responses, is a core competency of many NGOs. The increasing effectiveness of networking and forging strategic alliances has further fortified the importance and effectiveness of NGOs engaged in this important function. There have been a number of recent examples of strategic alliances of non-governmental actors successfully promoting policies that have eventually been taken up and prescribed by state actors. One remark52 53 54

U.N.Charter art. 71. United Nations, Department of Economic and Social Affairs, NGO Section, http://esango.un.org/paperless/Web. See, e.g., “We the Peoples’: Civil Society, The United Nations and Global Governance: Report of the Panel of Eminent Persons on United Nations—Civil Society Relations, U.N. Doc. A/58.817 (June 7. 2004). See also Non-State Actors and Human Rights (Philip Alston ed., 2005); Human Rights Advocacy Stories (Deena R. Hurwitz & Margaret L. Satterthwaite eds., 2009); Jane Nelson, Building Partnerships: Cooperation Between The United Nations System and the Private Sector (2002); Steve Charnovitz, Two Centuries of Participation: NGOs and International Governance, 18 Mich. J. Int’l L. 183 (1999); Paul Wapner, Civil Society, in Oxford Handbook on the United Nations, supra note 13, at 254-63.

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–

–

–

55

56

57

able example of this is the International Campaign to Ban Landmines (ICBL), a coalition that began with six founding organizations and now consists of over eleven hundred NGOs.55 The ICBL is largely credited for the Mine Ban Treaty (officially the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction) that was adopted in Ottawa in 1997. In recognition of its efforts, the ICBL received the 1997 Nobel Peace Prize. Similarly, the Coalition for the International Criminal Court (CICC), now a coalition of more than 2,500 NGOs from 150 countries, played an important role in all aspects of the formation of the ICC.56 The role of the CICC was officially recognized by the ICC’s Assembly of States Parties, which in 2003 adopted a resolution to this effect.57 The Prescribing Function. The prescribing function is less susceptible to the participation of non-governmental organizations. Final voting is reserved for governmental officials. Nonetheless, we should not overlook the processes of promotion and participation leading to formal prescription. In addition to the examples of the ICBL and the CICC, the working draft group that led to the formulation of the UN Convention on the Rights of the Child encouraged and facilitated NGO members to participate from the beginning to the end. The Invoking Function. Many human rights NGOs are specialized in this area to bring complaints (petitions, communications) on behalf of victims, given their resources and their knowledge of relevant institutions, procedure and practice, and skill. Recall, for example, that the UN Human Rights Council permits both individuals and groups to petition the Council if they have knowledge of human rights abuses. The role of NGOs regarding informal invocation is also significant in calling attention to certain issues and getting certain matters on the agendas of regional or international decision-makers. The Applying Function. Narrowly confined to the judicial and quasi-judicial context, the applying function is reserved for governmental officials, with NGOs playing such limited role as representing victims in the relevant proceedings. International Campaign to Ban Landmines, History, Campaign, Home, http://www.icbl. org/campaign/history; see Kenneth Anderson, The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organizations and the Idea of International Civil Society, 11 Eur. J. Int’l L. 92 (2000); Maxwell A. Cameron, Global Civil Society and the Ottawa Process: Lessons from the Movement to Ban Anti-Personnel Mines, in Enhancing Global Governance: Towards a New Diplomacy? 69-89 (2002); William Maley, The United Nations, NGOs and the Land-Mines Initiative: An Australian Perspective, in id. at 90-105; Iver B. Neumann, Harnessing Social Power: State Diplomacy and the Land-Mines Issue, in id. at 106-32. Coalition for the International Criminal Court, About the Coalition, http://www.iccnow. org/?mod=coalition; see also Alistair D. Edgar, Peace, Justice, and Politics: The International Criminal Court, “New Diplomacy”, and the UN System, in Enhancing Global Governance, supra note 55, at 133-51; Philip Nel, Between Counter-Hegemony and PostHegemony: The Rome Statute and Normative Innovation in World Politics, in id. at 152-61. I.C.C., Recognition of the Coordinating and Facilitating Role of the NGO Coalition for the International Criminal Court, Res. ICC-ASP/2/Res. 8 (Sept. 11, 2003).

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On the other hand, broadly conceived in terms of the interrelated goals of prevention, deterrence, restoration, rehabilitation, reconstruction, and correction, NGOs could play more active and significant roles in the process of application. The Terminating Function. As was discussed above in Section V, because human rights are so widely demanded, it is very difficult for them to be terminated. To the extent that human rights can be terminated, there is a role for NGOs to play in the process. For example, NGOs can review whether certain prescribed norms are outdated or require additions or revisions (in the form of an additional protocol to a given convention, for example). The Appraising Function. The appraising function allows for wide and democratic participation. NGO involvement in this important function may take a variety of forms. One particularly important form of NGO appraisal is the many country-specific human rights reports that are published by a number of NGOs. These reports shed light on the relative compliance or non-compliance of a particular state with accepted human rights norms and instruments.58 Also noteworthy are the parallel conferences that are often held by NGOs when official state actors meet to discuss particular subject matters. These conferences often produce important contributions to the appraising function and may also influence the discussions of the parallel meetings of state actors.59

In addition to the important contributions made to civil society by nongovernmental organizations, it is also worth making special note of the role played by transnational corporations. Much of the commentary regarding transnational corporations and human rights is focused largely on the potential or actual role of these corporations in human rights deprivations. Thus, the role of Blackwater, Inc. in killing unarmed Iraqi civilians and the role played by Yahoo! in the arrest of a dissident Chinese journalist is well known. It must not be forgotten, however, that transnational corporations can and do serve as important sources for the protection and fulfillment of human rights.60 Disinvestment by transnational corporations in apartheid South Africa, for example, played a significant role in the end of the apartheid system. Also in the context of apartheid South Africa, by adhering to the Sullivan Principles, transnational corporations operating in South Africa were able to promote racial equality in employment practices. Today, transnational corporations can have a similar impact, for example by voluntarily complying with fair labor and environmental standards, even when they are not required to do so by relevant domestic law.

58 59 60

See, e.g., Steiner et al., supra note 23, at 791-823; International Human Rights Lawyering, supra note 23, at 849-71. See United Nations—Sponsored World Conferences: Focus on Impact and Follow-up (Michael G. Schechter ed., 2001). See David C. Korten, When Corporations Rule the World (2d ed. 2001); International Human Rights Lawyering, supra note 23, at 662-743; Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443 (2001).

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XI. Projection of Probable Future Developments 468

One important contribution of the New Haven School’s framework of problem solving has been its emphasis on, to the greatest extent possible, anticipating probable future developments.61 This process, however, goes beyond mere divination of likely outcomes. First, we look to the past in order to identify the factors that have conditioned the major trends of development. Once we have identified the major factors affecting trends of development, we can project these trends into the future, in order to anticipate likely future outcomes. When thinking about future outcomes, however, it is important that we keep in mind that no outcome is inevitable. For this reason, we must identify a range of possible future outcomes. The “developmental constructs” designed by Professor Lasswell are useful in formulating a range of possible future outcomes, ranging from the most optimistic model to the most pessimistic model.62 Neither of these models is inevitable, and the actual future of development will be largely determined by human will and human efforts. The factors that have conditioned the major trends of development can be categorized into predispositional conditioning factors (that is, those related to people’s fundamental demands, expectations, and identifications) and environmental conditioning factors (that is, those that are related to physical trends and arrangements). With respect to predispositional factors, the growing demand for the protection and fulfillment of human rights and for greater participation in the shaping and sharing of values has been a theme running throughout this article. At the same time, however, expectations of violence, fueled by the proliferation of weapons of mass destruction and the threat posed by global terrorism, persist and have in many ways intensified. While the threat of nuclear annihilation has largely subsided with the end of the Cold War, the threat of nuclear attack still looms. North Korea and Iran are in varying stages of developing nuclear weapons programs, while the threat of “loose nukes” getting into the hands of terrorist groups is a grave threat for many. Similarly, the threat of terrorist attacks carried out with inexpensive and relatively easily made biological and chemical weapons is quite real. Furthermore, the post-Cold War period has seen a dramatic rise in racial and ethnic conflict, a fact which has also served to increase expectations of violence. Thus, there is a sharp contrast between demands and expectations. There is a similar divide with respect to identification, the third important predispositional conditioning factor. On the one hand, much development has been driven by an increasing sense of shared humanity. The formation of the United Nations, the end of colonialism, the end of apartheid, the civil rights movement in the United States, all were driven by an increasingly inclusive identification with humanity as a whole. In theory, at least, there is a widely-shared aspiration to recognize the com61 62

McDougal, Lasswell & Chen, supra note 1, at 436-40. For a full elaboration, see Lasswell & McDougal, supra note 32, at 973-1031. For the concept of developmental constructs, see Harold D. Lasswell, World Politics and Personal Insecurity (1935; 1965); and Harold D. Lasswell, A Pre-view of Policy Sciences 67-69 (1971).

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mon qualities that unite us, and to downplay those differences which have in the past divided us. While the desirability of inclusive identification has been widely expressed, and at times efforts have been made towards its realization, there has also been an increasing trend towards what Professor Lasswell dubbed the “parochial syndrome,” with its emphasis on cultural relativism.63 According to this view, human rights must be understood through the lens of the culture in which they are to be fulfilled. Thus, for example, the practice of female genital mutilation is defended by its supporters on cultural grounds, against claims that it constitutes an abusive practice. Critics of the practice argue that cultural relativism can not support a practice that is inherently violative of human rights. There is at least some tension between the view that human rights are culturally relative and the inclusive identification of common humanity.64 Environmental conditioning factors include population, resources, and institutions. Population has continued to increase exponentially. At the same time, however, natural resources remain finite and are becoming increasingly scarce. This problem is exacerbated by the fact that these scarce resources are unevenly distributed, both between states and within states. Furthermore, the relationship between population and resources is inverse, in the sense that population is growing disproportionally rapidly in developing countries, which have the least availability of resources. This raises the question of whether the institutions that have thus far been developed are adequate to confront the trends of development. To this point, the overwhelming institutional focus has been on nation-states, and to a lesser extent international governmental organizations, most notably the United Nations. Given the global, complex, and dynamic nature of the problems we now face, it may well be that the state-centered model, which is deeply rooted in traditional modes of decision making, is not adequate for the task with which we are confronted. The development of institutions capable of meeting the needs of global governance may be needed. Going beyond predispositional and environmental conditioning factors, we find a number of other factors that have played a significant role in past trends of development. The march towards ever-more globalization has dramatically altered past trends. Global interconnectedness is now the reality in nearly every major aspect of life; trade, economics, culture, education, and politics are just a few examples of the significant ways in which individuals and states are interconnected and interdependent. Looking towards the future, it is certain that globalization will continue to be a primary force in shaping future developments. Advances in science and technology have been similarly influential in driving past trends of development. One way in which this has played out is with respect to advances and diffusion in information 63

64

See Harold D. Lasswell, Introduction: Universality versus Parochialism, in Myers S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order, at xix-xxvi (1961). For detailed elaboration, see Harold D. Lasswell, Future Systems of Identity in the World Community, in 4 the Future of the International Legal Order 3-31 (Cecil B. Black & Richard Falk eds., 1972). Cf. Benjamin Barber, Jihad vs. McWorld: How Globalism and Tribalism are Reshaping the World (1995). See supra note 33.

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technology and communications, which have played a major part in “shrinking” the world. On the other hand, not-so-distant advances in science and technology have created the most life-threatening weapons ever known, with the capacity to destroy virtually all life on this planet. Having identified the conditioning factors that have shaped past trends of development, we turn now to the task of applying these trends to discern probable future developments. Using the developmental constructs identified by Professor Lasswell, we can develop both an optimistic model and a pessimistic model. The optimistic construct of future development imagines a world of increasing human dignity, in which all values are shaped and shared by all individuals freely participating in all levels of community decision making. According to this model, individual expectations will begin to match their demands for the protection and fulfillment of human rights. Rather than expectations of violence and coercion, individuals will expect the fulfillment of human rights. Individuals will identify with humankind as a whole, recognizing the inherent human dignity that is shared by all people, rather than myopically focusing on the slight social and cultural differences that can be used to divide us into parochial groups. Scarce resources will be more equitably distributed amongst a population that is not growing faster than the resources needed to sustain it. Institutions capable of effective global governance will have emerged to help facilitate these positive trends. To this end, national, regional, and global institutions will work cooperatively towards the goal of promoting human dignity. The benefits of globalization will be maximized, for example through more equitable sharing of increased wealth, and its burdens will be minimized. Likewise, the benefits of science and technology will also be widely shared in order to improve the lives of all people, while global institutions will work to minimize the risks posed by such advances. The optimistic model will include the fulfillment of the Millennium Development Goals (eradicating extreme poverty and hunger; achieving universal primary education; promoting equality and empowerment of women; reducing child mortality; improving maternal health; combating HIV/AIDS, malaria, and other diseases; ensuring environmental sustainability; and developing a global partnership for development).65 It is possible, however, that the conditioning factors leading towards the more pessimistic model will win the day. This model would be characterized by a widening gap between individuals’ demands for protection and fulfillment of human rights, on the one hand, and their expectations of violence, on the other. Rather than embracing the commonalities which unite all human beings, individuals will instead turn inward, becoming ever more parochial in their identifications. Competition for increasingly scarce resources will become increasingly violent and coercive. Rather than develop65

See Millennium Declaration, Sept. 8, 2000, U.N. G.A. Res. 55/2 (2000); “Millennium Development Goals, Ten Key Recommendations, Jan. 17, 2005,” in Investing in Development: A Practical Plan to Achieve the Millennium Development Goals (Report of the UN Millennium Project to the Secretary General) (Jan. 19, 2005). See generally In Larger Freedom: Towards Development, Security, and Human Rights for All (Report of the Secretary General), Mar. 21, 2005, U.N. Doc. A/59/2005 (2005).

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ing institutions capable of effective global governance, states will continue to consolidate their power, and will yield it to meet their narrowly-perceived self-interest. Globalization will act as a means of consolidating wealth into ever fewer hands, widening the wealth gap between and within states. Advances in science and technology will serve the needs only of those with sufficient wealth to reap the rewards. Neither of these models is inevitable. All of the factors affecting the trends of future development are susceptible to human manipulation. That is to say, the path of future development will be largely determined by the actions taken by individual human beings. We turn now, to developing a strategy for realizing the optimistic model just described: a world community of human dignity. XII. A Grand Strategy of Mobilization and Simultaneity The protection and fulfillment of human rights are the very core of a world community of human dignity, which is characterized by: the centrality of the human person, the wide shaping and sharing of values, as well as freedom and persuasion over coercion and violence.66 What, then, will be required for moving toward a world community of human dignity? What is required is a grand strategy of mobilization and simultaneity. This grand strategy entails four major components: (1) all actors—state or other—must be engaged; (2) all decision functions must be effectively performed; (3) efforts must be made simultaneously at all community levels—international, regional, national, and local; and (4) education is central. The realization of a world community of human dignity will require the mobilization of all actors, including states, individuals, and groups. Human rights are simply too important to be left to state actors exclusively. And as we have seen, states have proven themselves incapable of adequately satisfying the increasingly intense demands for human rights. This is not to say that states do not have an important role to play in the forging of a world community of human dignity. Rather, it is meant to illustrate that all actors must be mobilized. In the end, it is the human person that is at the center of human rights. It is human beings, not states or organizations, whose decisions will impact human rights, for better or for worse. People, not states, act. It is also human beings that are the ultimate beneficiaries when human rights are fulfilled and the sufferers when human rights are deprived. Given the centrality of the human person, it is essential that all actors are mobilized towards building a world community of human dignity. Building a world community of human dignity will also require each decision function to be performed effectively. Effectively performing all decision functions is directly related to the effective mobilization of all actors, as each function is susceptible, in varying degrees, to democratic participation. Such democratic participation in the carrying out of decision functions is essential to their effective performance. Each function is discussed in turn:

66

For detailed elaboration, see McDougal, Lasswell & Chen, supra note 1, at 365-448.

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– 472

–

–

–

–

–

–

Intelligence. The effective gathering, processing, and dissemination of relevant information has been greatly democratized with advances and diffusion of information and communication technologies. The intelligence function is an important tool that is becoming more and more widely available. Nonetheless, these advances have not been made available to all people. Building a world community of human dignity will require that all people have access to the tools to effectively gather, process, and disseminate relevant information. Promotion. In building a world community of human dignity, it is also essential that all people have the means by which to advocate general principles and urge proposals to commonly shared problems. A world built on human dignity is one in which all participants’ voices are heard. Prescription. The prescribing function has tended to be dominated by state actors. While this function does not lend itself as well to truly democratic participation, it will be necessary for a world community of human dignity that the prescribing process be democratized to the greatest extent possible. There has been some movement in this direction, most notably in the involvement of civil society in several important instruments. While this trend is encouraging, there is still much room for the increased participation of non-state actors in the prescribing process. Invocation. The invoking function has already been discussed at some length. Here, it is sufficient to reiterate that individuals and groups must have access to the various means of invoking prescribed norms. This must be done both formally, in the sense of reasonable access to the domestic, regional, and international courts and bodies charged with formal application, and informally, in the sense of calling attention to abuses. In this latter sense, democratic access to information and communication technologies is essential. A world community of human dignity must actively allow for effective invocation, both formal and informal, at all community levels. Application. Like the prescribing function, the applying function is less susceptible to democratic involvement. There is room, however, for non-state actors to play a role in application, by representing victims before appropriate structures of authority, for instance. When the interrelated sub-goals of application (prevention, deterrence, restoration, rehabilitation, reconstruction, and correction) are taken seriously, all actors will find ample opportunity to participate and to contribute. Termination. Because they are so intensely demanded, human rights can not be easily terminated. In a world community of human dignity, this will continue to be true. Nonetheless, in a world community of human dignity there will be no termination without the active participation of all interested actors, both state and nonstate. Appraisal. Finally, in a world community of human dignity, state and non-state actors will have ample opportunity to assess actively the gap between high aspiration and low achievement, and make recommendations for improvement.

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In addition to mobilizing all actors and all decision functions, building a world community of human dignity will require simultaneity, meaning that mobilization must occur simultaneously at all community levels. Just as human rights are too important to be left alone to state actors, so, too, are they too important to be left alone to one level of community decision making. In reality, the human decisions and actions that will shape future outcomes happen at all levels—global, regional, national, and local. Appropriate measures must be taken to ensure that individuals have equal access to freely participate in the community decision making process at each of these levels. This is not to say that circumstances will not arise that call for special attention; there are undoubtedly situations—large scale disasters such as the 2004 Tsunami, for example—to which states or global institutions are uniquely suited to respond. For purposes of building a world community of human dignity, though, it is essential that there be sustained effort at all community levels. Finally, and perhaps most importantly, the centerpiece of this strategy is education. As has been stressed throughout this article, the human person is the ultimate concern of human rights. It is the decisions and actions of individual human beings that will determine whether demands for human rights are answered or stymied. It is individual human beings that will reap the fruits of positive future outcomes and will be left to suffer the consequences of negative ones. Given the centrality of the human person, the importance of education in building a world community of human dignity cannot be overstated. The education that is needed is not simply that which goes on inside of classrooms, though such education is surely important and necessary. More fundamentally, though, the goal is to raise human consciousness in order to empower people to develop their own potentiality. To this end, individuals should be encouraged to think globally, in order to appreciate the significance of global interdependence; temporally, to extend concern from present to future generations; contextually, in terms of different community levels and value sectors; and creatively, by mobilizing all intellectual skills—integrated inquiries of goals, trends, conditions, projections, and alternatives. Nor are the goals of education limited to those whose rights are deprived; raising the human consciousness of the masses is but one aspect of this grand strategy. Equally important is to raise the consciousness of elites, especially those who would and do deprive others of their human rights. Likewise, the need for education is not limited to individuals. It is equally fundamental that collective consciousness be raised in the spirit of fostering a world community of human dignity. No future outcome is inevitable. Whether the future looks like the pessimistic or the optimistic model described in the last section will be determined by the actions and decisions of human beings. The realization of a world community of human dignity is entirely possible. Education of all people, mobilization of all actors and all decision functions, simultaneously at all levels, will lead to a world in which all values are freely shaped and shared, in which demands for rights are met and fears of violence are minimized, in which the needs of all are met and the wants of all are attainable, and in which our common humanity is celebrated and our differences do not divide us. Building such a world community of human dignity is the ultimate goal of the New Haven School, as it was the goal of Professors McDougal and Lasswell

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and I when we wrote Human Rights and World Public Order. In this sense, nothing has changed in the last thirty years.

Chapter 26 U.N. Human Rights Council Fact-Finding Missions: Lessons from Gaza Christine Chinkin*

I. Introduction This paper offers some thoughts on the use of international fact-finding missions by the United Nations Human Rights Council. It is informed by two recent personal experiences: first, as a member of a Human Rights Council high-level fact-finding mission to Beit Hanoun in the Gaza Strip that was mandated in November 2006,1 and second, as a member of an International Bar Association and Raoul Wallenberg Institute working group on drafting guidelines for good practice for members of factfinding missions carried out under the auspices of non-governmental organizations (NGOs).2 These two encounters have made me aware of how I had taken for granted, but failed to reflect upon, the importance of information gathering for international law and decision-making. This may be a not uncommon position: Professors McDougal, Lasswell and Reisman observed some decades ago that the “ubiquitousness of intelligence in the execution of every other decision outcome has contributed to its low level of visibility.”3 Perhaps a haste to turn to normative questions obscures the importance of basic issues of facts, which are viewed as given,4 as unimport*

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I express my great gratitude to Archbishop Tutu for his support throughout the Beit Hanoun mission and for offering his unique message of hope. I also thank all those who supported the mission in so many ways and Professor Karen Knop for her insights throughout our discussions on fact-finding. The views expressed are of course my own. Human Rights Council Res. S-3/1 (Nov. 15, 2006). The President of the Council appointed Archbishop Desmond Tutu to lead the Mission and myself as the sole other member. This reflection was written before I was appointed to the U.N. fact-finding mission on the Gaza conflict in April 2009 and does not make reference to that mission. The Guidelines on International Human Rights Fact-Finding Visits and Reports—The Lund-London Guidelines (June 1, 2009), available at http://www.factfindingguidelines. org/about.html. Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The Intelligence Function and World Public Order, 46 Temple L.Q. 365, 367 (1973). The build-up to the invasion and occupation of Iraq in March 2003 illustrates this well. The U.N. Monitoring, Verification and Inspection Commission was authorised by Se-

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 475-498.

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ant, or as mere technicalities lacking theoretical or conceptual interest. But alongside questions of gathering, evaluating and disseminating facts5 are important issues relating to the purposes of and expectations engendered by an international ad hoc fact-finding mission. The paper first briefly outlines the institutional development of international investigatory processes6 and then considers some of the legal, ethical and practical aspects of international fact-finding in the context of human rights. It concludes by considering briefly the tensions around fact-finding in the story of human rights accountability. II. Historical Overview of International Fact-Finding7 “Fact-finding is not a new phenomenon in international law.”8 Diverse processes of legal and illegal modes of information collection have always been part of inter-state regulation. International fact-finding through the concept of a Commission of Inquiry was first institutionalized in the Hague Convention for the Pacific Settlement of International Disputes.9 It was recommended in Article 9 as a process to be followed where states parties who have differences arising from a difference of opinion on points of fact have not been able to come to an agreement by means of diplomacy. The function of the Commission of Inquiry is to “facilitate a solution of disputes by elucidating the facts by means of an impartial and conscientious investigation.” Disputes involving national honor or vital interests were excluded. Fact-finding was thus placed squarely in the framework of processes for the peaceful settlement of disputes that were perceived as means of obviating what was then lawful recourse to the use of force. It was set alongside other dispute resolution processes, good offices, mediation and arbitration, that invoke the services of an impartial third party. Although the Commission of Inquiry is to prepare a report, its work is distinguished from arbitra-

5 6 7 8 9

curity Council (SC) Resolution 1441 (Nov. 8, 2002), to resume an “enhanced inspection regime” in Iraq. The Commission reported to the SC on February 14, 2003 that it “had found no evidence of ongoing prohibited nuclear or nuclear-related activities in Iraq.” It was not, however, “in a position to reach a conclusion on a number of issues still under investigation.” These facts were discounted by the U.S. and U.K. as unimportant against the “givens” “that Iraq had weapons of mass destruction” (Jack Straw, U.K. Secretary of State for Foreign and Commonwealth Affairs) and “the central problem, namely, Iraq’s failure to comply with 1441” (Colin Powell, U.S. Secretary of State). Press Release, U.N. Doc. SC/7664 (Feb. 14, 2003). McDougal, Lasswell and Reisman describe the intelligence function as comprising these tasks; supra note 3, at 365. These are variously termed inquiry, enquiry, fact-finding, and investigation. This paper draws no distinctions between these terms. Edwin B. Firmage, Fact-Finding in the Resolution of Disputes—From the Hague Peace Conference to the United Nations, 1971 Utah L. Rev. 421 (1971). Nicolas Valticos, Foreword to International Law and Fact-Finding in the Field of Human Rights, at vii (B.G. Ramcharan ed., 1982). Convention on the Pacific Settlement of International Disputes (Hague I), July 29, 1899, arts. 9-14.

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tion in that the parties are free to determine how they will use the findings.10 In 1907, the procedures for the operation of a Commission of Inquiry were greatly extended but the essential features of the process remained the same.11 On only very few occasions was there established an ad hoc Commission of Inquiry as envisaged in the Hague Conventions.12 Nevertheless, the early years of the twentieth century saw innovations in the use of international fact-finding as a dispute resolution process. Under the Bryan Treaties fact-finding became linked with conciliation. In the context of international peace and security the League of Nations used fact-finding “as a basis for action by the League Council and Assembly.”13 This represented a major shift in the concept as appointment of the commission members no longer depended upon the initiative and consent of the parties to the dispute. Inquiry now provided “a basis for collective action by international bodies.”14 Fact-finding has often been perceived and engaged in as complementary to dispute resolution (and other) processes. Indeed it has been suggested that the original impetus for the inclusion of Commissions of Inquiry within the 1899 Hague Convention was the need for effective fact-finding in the context of disputes submitted to arbitration.15 The use of fact-finding within international adjudication was provided for in the Statute of the Permanent Court of International Justice. Article 50 (repeated in the Statute of the ICJ) provides for the Court to “entrust any individual, body, bureau, commission or other organization … with the task of carrying out an enquiry or giving an expert opinion.” Neither the Permanent Court nor the International Court has made widespread use of this provision,16 and Article 50 remains “a helpful, but rarely

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14 15 16

Hague I, art. 14. Convention on the Pacific Settlement of International Disputes (Hague I, 1907), Oct. 18, 1907, arts. 9-36. John Merrills, International Dispute Settlement 45-63 (4th ed. 2005). In all cases the dispute involved incidents at sea, often concerning the location of the vessels. William I. Shore, Fact-Finding in the Maintenance of International Peace 19-26 (1970) provides an account of fact-finding under the Bryan treaties and during the period of the League. David Weissbrodt & James McCarthy, Fact-Finding by International Non-Governmental Human Rights Organizations, 22 Va. J. Int’l L. 7, 19-20 (1981). Shore, supra note 13, at 13. For example, in the Diversion of the Water from the Meuse (Neth. v. Belg.), the PCIJ carried out on-site inspection to see “all the installations, canals and waterways to which the dispute related.” P.C.I.J., Ser. A./B., No. 70, 1925. In the Gabčíkovo-Nagymaros Project (Hung. v. Slov.), the ICJ visited “locations along the Danube and took note of the technical explanations given by the representatives who had been designated for the purpose by the Parties.” 1997 I.C.J. 7, para. 10. In Corfu Channel (U.K. v. Alb.), the ICJ appointed a Committee of Experts and requested it to go to Yugoslavia and Albania to undertake “any investigations and experiments that they might consider useful with a view to verifying, completing, and, if necessary, modifying the answers given in their report of January 8th.” 1949 I.C.J. 9.

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used, means of obtaining information about a case.”17 However, recent cases have highlighted the difficulties faced by the ICJ when faced with elucidating the facts of complex conflicts.18 Thus by the time of the adoption of the U.N. Charter at least three functions of fact-finding had emerged: as an institutional but free-standing dispute resolution process between states (little used); as an adjunct to other third party dispute resolution processes (ironically little used where expressly provided for, as in international adjudication, but apparently more widely so in ad hoc processes); and as an institutional tool (increased use in accordance with broadening institutional functions). These functions have been sustained in the U.N. era. The dispute resolution character of enquiry is continued through its inclusion in U.N. Charter, Article 33 within chapter six on the Pacific Settlement of Disputes. It has also been engaged by organs of the United Nations as a tool for the maintenance of international peace and security under chapter VII. Both the Security Council and the General Assembly (GA) have used their competence to create functional subsidiary bodies19 to establish fact-finding missions. For example the Council has upon occasion carried out its own ad hoc fact-finding missions “with a view to ascertaining the situation on the ground and reporting thereon.”20 It has requested that an impartial Commission of Experts be established to provide information to the Council to inform its action with respect to allegations of atrocities,21 or the deaths of prominent persons.22 This procedural step may serve as a “holding action” by the Security Council, either evidencing that it is acting upon a particular situation while giving it more time to decide upon (and ne17

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Christian Tams, Article 50, in The Statute of the International Court of Justice: A Commentary 1109, 1118 (Andreas Zimmermann, Christian Tomuschat & Karin Oellers-Frahm eds., 2006). See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. Reports, paras. 57-61; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) 2007 I.C.J. Reports, paras. 202-230. U.N. Charter art. 22 (GA), art. 29 (SC). The wording is taken from the Report of the Security Council Mission Established pursuant to Resolution 819 (2003) U.N. Doc. S/25700 (Apr. 30, 1993) (visit to Bosnia-Herzegovina). For example, Security Council Resolutions 780 (Oct. 6, 1992) and 935 (July 1, 1994) in each case mandated a Commission of Experts prior to establishing respectively the International Criminal Tribunal for Former Yugoslavia and the International Criminal Tribunal for Rwanda. For example, Security Council Resolution 161 (Feb. 21, 1961), where the SC decided that “an immediate and impartial investigation be held” into the deaths of leaders in the Congo. The General Assembly established the Commission. See G.A. Res. 1601 (XV) (Apr. 15, 1961). Security Council Resolution 1595 (Apr. 7, 2005) established an international independent investigation commission to assist Lebanese authorities in investigating the death of Prime Minister Rafiq Hariri. This was in response to the report of an earlier fact-finding mission that had concluded that the Lebanese investigation process was inadequate. See U.N. Doc. S/2005/203.

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gotiate) a substantive response, or to distract attention from its unwillingness to decide upon more forceful action . The General Assembly has similarly recommended fact-finding missions in the exercise of its powers under Articles 10, 11 and 13 of the U.N. Charter. It has also sought further to institutionalize the process, for example by inviting member states to designate persons to be placed on a Panel for Inquiry and Conciliation23 and requesting the Commission on Human Rights to discuss the question.24 In 1991 it declared the importance of fact-finding for the performance of U.N. functions and that U.N. organs should “consider undertaking fact-finding activities.”25 It also defined the process in the field of peace and security as: Any activity designed to obtain detailed knowledge of the relevant facts of any dispute or situation which the competent UN organs need in order to exercise effectively their functions in maintenance of international peace and security.26

The definitional “any activity” emphasizes the flexibility of fact-finding processes, a strength that has evolved from the more structured Commission of Inquiry of the Hague Conventions. It has also been a factor in a new institutional development as a special procedure of the U.N. human rights bodies. III. Human Rights Fact-Finding Within the United Nations The 1991 General Assembly Declaration on Fact-Finding asserts that formal factfinding missions may be undertaken by the Security Council, the General Assembly and the Secretary-General.27 In addition to these organs the U.N. human rights bodies have turned on many occasions to international fact-finding missions to investigate alleged human rights abuses occurring within the territory of a state. Under the former Commission on Human Rights fact-finding was developed under ECOSOC Resolution 150328 and through the special procedures, including special rapporteurs, working groups and expert committees. It is provided for in specific ways in the hu-

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Study of Methods for the Promotion of International Co-operation in the Political Field, G.A. Res. 268 (III) (Apr. 28, 1949). The Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, G.A. Res. 46/59, para. 14 (Dec 9, 1991), states that the Secretary-General should prepare and update a list of experts who would be available for fact-finding missions. G.A. Res. 35/176 (Dec. 15, 1980). Declaration on Fact-finding, supra note 23, para. 1. Id. para. 2. This is reiterated in An Agenda for Peace, Preventive diplomacy, peacemaking and peacekeeping, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, para. 25(c) (June 17, 1992). ECOSOC Res. 1503 (XLVIII) (May 27, 1970), revised by ECOSOC Res. 2000/3 (June 19, 2000).

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man rights treaties,29 most explicitly in the provision for inquiry under the Torture Convention30 and the Optional Protocols to the Women’s Convention31 and Disabilities Convention.32 A primary purpose of human rights fact-finding33 as carried out within the U.N. framework, by regional human rights institutions and by NGOs34 is clear: to induce positive change in human rights compliance in a particular context. In its brief period of existence since 2006 the Human Rights Council has like its predecessor, the Commission on Human Rights, turned frequently to fact-finding and has established what it terms high-level fact-finding missions to investigate alleged human rights abuses in Lebanon (2006), Gaza (2006, 2009), Darfur (2006) and the Democratic Republic of the Congo (2008). Fact-finding through special missions was not explicitly included in the mandate of the Commission on Human Rights,35 in the constitutive instrument of the Human Rights Council,36 or the resolution setting out the working practices of the Council.37 Authority for such missions must therefore be inferred from the linkage between human rights and international peace and security that is integral to the U.N. Charter and is spelled out in the Preamble to the resolution establishing the Council:

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34 35

36 37

The state reporting system provides a regular mechanism for providing expert bodies with information on the human rights situation within states parties. The use of information gathering through reporting was also a feature of the mandate system whereby the mandatory was required to “render to the Council an annual report in reference to the territory committed to its charge”; Covenant of the League of Nations, 1919, art. 22. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 20(2), G.A. Res. 39/46, (Dec. 10, 1984). Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women art. 8, G.A. Res. 54/4 (Oct. 15, 1999). Optional Protocol to the Convention on the Rights of Persons with Disabilities art. 6, G.A. Res. 61/106, annex II (Jan. 24, 2007). Ramcharan has identified features that differentiate human rights fact-finding from other forms of international fact-finding: its objective is to assist in the restoration and promotion of human rights; it rests on the premise that governments have an international obligation to guarantee human rights so that once violations are shown the onus is on the government to respond; it is inquisitorial rather than adversarial; and it does not rest on a dispute between states. See B.G. Ramcharan, Introduction to International Law and Fact-Finding, supra note 8, at 1, 6. Hans Thoolen & Berth Verstappen, Human Rights Missions: A Study of the Fact-Finding Practice of Non-Governmental Organizations (1986). For the competence of the Commission to mandate fact-finding missions, see Robert Miller, United Nations Fact-Finding Missions in the Field of Human Rights, 1970-73 Austl. Y.B. Int’l L. 40, 43-44 (1975); and Felix Ermacora, The Competence and Functions of Fact-Finding Bodies, in International Law and Fact-Finding, supra note 8, at 83, 86. G.A. Res. 60/251 (Mar. 15, 2006). Institution-building of the United Nations Human Rights Council, Human Rights Council Res. 5/1 (June 18, 2007).

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peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being, and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing.

This is supported by the Council’s overall mandate “to address situations of violations of human rights and to make recommendations with regard to the promotion and protection of human rights” and to “assume the mandates, mechanisms, functions and responsibilities of the Commission.”38 Ermacora’s conclusion is surely correct: It may be assumed that international organizations possess an implied power to establish fact-finding bodies if the statute [or other constitutive instrument] of the international organization allows it to conclude that the investigation of facts is a pre-condition for fulfilling accurately the main function of the organization.39

Further, the Council unlike the Commission was set up as a subsidiary body of the General Assembly (rather than of the Economic and Social Council)40 and shares its functions, including its residual responsibility for international peace and security and its authority to establish fact-finding missions. Of course, all such missions operating under the auspices of the United Nations must comply with the U.N. Charter and other principles of international law, notably human rights law. U.N. mandates must also be construed to give effect to gender equality and to take the different circumstances of women and men in the area under investigation into account. IV. U.N. Human Rights Council Fact-Finding Missions Human rights fact-finding missions typically face a number of difficult issues and in its brief existence those established by the Human Rights Council have faced familiar legal, practical and ethical dilemmas. They must seek process legitimacy through procedural transparency, democratic decision-making, reasoned decisions and review mechanisms while operating within the terms of the specific mandate. They seek to establish facts but are not courts of law and do not have the procedural safeguards of such bodies (for example evidence taken under oath and cross examination). The paper considers some of these issues, using the high-level fact-finding mission of which I was a member—that to Beit Hanoun—as illustrative. While the examples are specific to this mission, they may be of wider import and relevant to most—if not all—human rights fact-finding missions. When considering process legitimacy it is first necessary to consider the particular position of the Human Rights Council when it adopted Resolution S-3/1 in November 2006.

38 39 40

G.A. Res. 60/251, para. 6. Ermacora, supra note 35, at 83, 85. U.N. Charter art. 68.

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A. The Human Rights Council and Legitimacy 482

The Council was established pursuant to growing criticisms of the former Commission on Human Rights including by the High-Level Panel on Threats, Challenges and Change, a body charged by former U.N. Secretary-General Kofi Annan with generating new ideas about the kinds of policies and institutions required for the United Nations to be effective in the twenty-first century.41 The Panel castigated the Commission as suffering “from a legitimacy deficit that casts doubts on the overall reputation of the United Nations.”42 In the Secretary-General’s follow-up Report to the Panel’s recommendations he too condemned the Commission for its “declining credibility and professionalism” in that “States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.”43 In the Outcome Document of the World Summit, the General Assembly resolved to replace the Commission by a newly created Human Rights Council to further strengthen the United Nations human rights machinery—one of the very few reforms of the United Nations that was agreed in the Outcome Document.44 The Council was established in April 2006 with a smaller membership than the Commission, with human rights criteria for membership45 and enhanced monitoring responsibilities, including the obligation to “[u] ndertake a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments.”46 The first elections for membership were held on May 9, 2006. The United States—one of the leading critics of the Commission and a key instigator of reform—opposed the resolution establishing the Council and did not contest the first elections.47 In May 2009, however, it became a member of the Council. This background guaranteed that from the outset the legitimacy and credibility of the Human Rights Council would be subject to scrutiny. The concept of legitimacy 41 42 43 44 45

46

47

A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, U.N. Doc. A/59/565 (Dec. 2, 2004). Id. at 14. In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, para. 182, U.N. Doc. A/59/2005 (Mar. 21, 2005). 2005 World Summit Outcome, G.A. Res. 60/1, para. 157 (Oct. 24, 2005). Addition of human rights criteria for membership of the Council is a form of seeking “rightful membership” as an element of legitimacy. See Ian Clark, Legitimacy in International Society 26 (2005). G.A. Res. 60/251, para. 5(e). This new procedure is applicable to all states and is required to provide equal treatment with respect to all states. It is thus an important measure for asserting the procedural legitimacy of the Council and its difference from the discredited Commission on Human Rights. On the United States’ “ambivalent response” to the creation of the Council, see Philip Alston, Reconceiving the UN Human Rights Regime: Challenges Confronting the New UN Human Rights Council, 7 Melb. J. Int’l L. 185 (2006).

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is variably used both to justify violations of international law48 and to enhance the moral persuasiveness of international law by importing other values such as those of justice, fairness or equity. It can be defined as the normative belief that a rule or institution ought to be obeyed49 and provides a “pull” factor towards doing so.50 In an institutional context it involves negotiation and seeking consensus: “The practice of legitimacy describes the political negotiation amongst members of international society as they seek out an accommodation between those seemingly absolute values, and attempt to reconcile them with a working consensus to which all can feel bound.”51 In the context of human rights, one element that supports legitimacy is even-handedness in monitoring compliance. By November 2006—the time of the Beit Hanoun shellings—the Council was already becoming subject to criticism from some sources for selectivity, not being objective and for having an anti-Israeli stance,52 which was both structural and particular. The critique of structural bias was based upon the mandates and other decisions it had adopted. Structurally, the Council’s membership from after the first elections has included a number of states from the African and Arab groups, and the Organisation of the Islamic Conference whose shared political views have become influential. At its first session, the Council singled out for debate the situation of human rights in the occupied Arab territories and requested “the relevant special rapporteurs to report to the next session on the Israeli human rights violations in occupied Palestine.” At the close of the session, the President of the Council announced that 21 out of the 47 Member States of the Council had requested a special session to be held on the situation of human rights in Palestine.53 The first special session decided to “dispatch an urgent fact-finding mission headed by the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.”54 48 49 50

51 52

53

54

See, e.g., Independent Commission on Kosovo: The Kosovo Report 289 (2000) (“The intervention was legitimate, but not legal, given existing international law.”). Ian Hurd, Legitimacy and Authority in International Politics, 53 Int’l Org. 379, 381 (1999). Legitimacy operates as “a property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively.” Thomas M. Franck, The Power of Legitimacy among Nations 16 (1990). Clark, supra note 45, at 29-30. See e.g., John Bolton, American Ambassador to the United Nations, General Assembly Plenary, 10th Emergency Special Session, 28th and 29th Mtgs. (Nov. 18, 2006), available at http://www.un.org/News/ Press/docs/2006/ga10534.doc.htm (“The Human Rights Council has quickly fallen into the same trap and de-legitimized itself by focusing attention exclusively on Israel. Meanwhile, it has failed to address real human rights abuses in Burma, Darfur, the DPRK, and other countries. Sadly, the Human Rights Council appears to be developing into an organ that is worse on this score than its predecessor.”). G.A. Res. 60/251, para. 10 states that the Council is able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council. Human Rights Council Res. S-1/1 (July 6, 2006).

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The summer of 2006 saw the war in Lebanon, the convening of a second special session of the Council culminating in a resolution strongly condemning “the grave Israeli violations of human rights and breaches of international humanitarian law in Lebanon.” The Council decided urgently to establish and immediately dispatch a high-level commission of inquiry comprising experts in human rights law and international humanitarian law to the region.55 It was not until the fourth special session in December 2006 that the Council turned to another situation of human rights concern when it decided to dispatch a high-level mission “to assess the human rights situation in Darfur and the needs of the Sudan in this regard.”56 At the sixth special session in January 2008, the Council returned to alleged human rights violations that emanated from Israeli military incursions into the Occupied Palestinian Territory and in January 2009 the ninth special session was in response to the “the grave violations of human rights in the Occupied Palestinian Territory including recent aggression in the occupied Gaza Strip.”57 Thus by early 2009 five out of ten special sessions of the Council have been directed towards alleged human rights abuses committed by Israel, largely in the context of its military operations. Israel has also figured prominently in the regular sessions of the Council. In the review of the workings of the Human Rights Council completed at its fifth session in June 2007, the Human Rights situation in Palestine and other occupied Arab Territories was listed as a permanent agenda item and the mandate of the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 was confirmed to last “until the end of the occupation”, while all other country-specific mandates were for the duration of one year.58 Israel was subject to the compulsory Universal Periodic Review procedure in 2008. The Report of the Working Group recorded a number of statements by delegations during the interactive dialogue relating to the Occupied Palestinian Territory and listed over fifty recommendations to the state.59 Israel’s disquiet about the Council’s selectivity was not new and in many ways this reflected its earlier experience in that it has been subject to numerous fact-finding missions emanating from U.N. organs since even before its emergence as a state.60 55 56 57

58 59 60

Human Rights Council Res. S-2/1 (Aug. 11, 2006). Human Rights Council Dec. S-4/101 (Dec. 13, 2006). Other special sessions have been held on Myanmar (fifth special session, Oct. 2007); “the negative impact on the realization of the right to food of the worsening of the world food crisis” (seventh special session, May 2008); the Democratic Republic of the Congo (eighth special session, Nov. 2008); the Impact of the Global Economic and Financial Crises on the Universal Realization and Effective Enjoyment of Human Rights (tenth special session, Feb. 2009); the human rights situation in Sri Lanka (eleventh special session, May 2009). Human Rights Council Res. 5/1, app. I. U.N. Doc. A/HRC/10/76 (Jan. 8, 2009). In 1947 the General Assembly resolved in special session to establish a Special Committee with the “widest powers to ascertain and record facts.” G.A. Res. 106 (S-1) (May 15, 1947).

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The occupation of Palestinian Territories since 1967 has spawned so many investigatory bodies61 (and condemnatory resolutions) that one author has dated the firm establishment of U.N. human rights fact-finding as a technique of enforcement from that date.62 Along with missions relating to apartheid South Africa (until the termination of that regime), fact-finding to examine charges of violations in the Occupied Palestinian Territory have proliferated and consequently the “paucity of human rights fact-finding activity directed elsewhere has a negative effect on the credibility of the investigations that do go forward.”63 Allegations of the structural illegitimacy of the Human Rights Council thus reflect those made by Israel against the U.N. as a whole. 64 However, the newness of the Council and the expressed desire to establish its credibility as a body that ensures the United Nations “takes the cause of human rights as seriously as those of security and development”65 gives additional weight to criticisms of its authority and raises doubts as to the possibility of successful and effective reform of the U.N. human rights system. B. The High-Level Fact-Finding Mission to Beit Hanoun Similarly, many of the expressed concerns about the specific mandate for the factfinding mission to Beit Hanoun repeat those made about earlier human rights factfinding bodies. The immediate context was that at sunrise on 8 November 2006 Israeli shells hit a residence and street in the town of Beit Hanoun leading to 19 deaths, 18 within the same family, and many wounded. One consequence of institutionally mandated fact-finding (in contrast to that agreed by the parties to a dispute) is that the institution determines the mandate. The high-level fact-finding mission was given a four point mandate: – To travel to Beit Hanoun; – To assess the situation of victims; – To address the needs of survivors; and – To make recommendations on ways and means to protect Palestinian civilians against further Israeli assaults. The mandate thus follows what has become a regular pattern for fact-finding missions: a three stage process comprising an investigation (gathering), analysis of a factual

61

62 63 64

65

In 1971 Firmage noted that “over a dozen different U.N. fact-finding bodies have dealt with some aspect of the Palestine question.” Firmage, supra note 7, at 466. There have been many more since. Miller, supra note 35, at 40. Thomas M. Franck & H. Scott Fairley, Procedural Due Process in Human Rights FactFinding by International Agencies, 74 Am. J. Int’l L. 308, 312 (1980). Israel voted against General Assembly Resolution 60/251 establishing the Human Rights Council. See U.N. GAOR, 60th sess., 72nd plen. mtg. at 5-6, U.N. Doc. A/60/PV.72 (Mar. 15, 2006). In Larger Freedom, supra note 43, at 183.

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situation (evaluation), and a report containing recommendations (dissemination).66 The terms of the mandate did not specify the applicable law but references to international humanitarian law (paragraphs 5 and 6) alongside human rights law make it clear that both legal regimes were to be considered. This constitutes a further evolution of the concept of human rights fact-finding, which on the one hand recognizes the reality that in some situations both legal regimes may be relevant, while on the other perhaps fails to give sufficient weight to the differences between them. Specialized legal regimes all come with their own principles, forms of expertise, and an “ethos” that is not necessarily shared even by a “neighboring” legal regime.67 Inclusion of more than one legal regime within a single mandate demands sensitivity to the demands of each. Critics of the mandate considered that its language demonstrated bias, thereby undermining the legitimacy of the mission.68 Although it was undisputed that Israeli shelling had caused the deaths and destruction of property in Beit Hanoun, the resolution was perceived as being one-sided, in that it fails to mention the firing of rockets from Gaza into Israel causing the wounding and deaths of Israeli citizens, terror and destruction of property. However, the resolution does urge “all concerned parties [not just Israel] to respect the rules of international humanitarian law.” Perceptions of bias also rest on the preambular reference to the Israeli military incursions into the Occupied Palestinian Territory as constituting a “collective punishment” of civilians in Gaza, describing the killing of Palestinian civilians as “wilful” and in operative paragraph 4 expressing “alarm at the gross and systematic violations of human rights” committed there. In these ways van Boven’s words concerning the mandate for a Special Working Group of Experts in 196769 remain pertinent: “[The Commission on Human Rights] had already defined its basic attitude before the investigation began: in the Resolution itself it deplored Israel’s continued violations … and expressed its deep concern at Israel’s refusal to abide by the Geneva Convention.”70 Guidelines for NGO fact-finding missions have warned that any mandate must not reflect predetermined conclusions about the situation to be investigated.71 Model Rules for IGOs

66

67

68 69 70 71

The submission of recommendations contrasts with the position under the Hague Conventions. See Hague II, 1907, art. 35 (“The Report of the Commission is limited to a statement of facts.”). Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, U.N. Doc. A/CN.4/L.682, para 15 (Apr. 13, 2006). The resolution was adopted by 32 in favor, 8 against and 6 abstentions. Commission on Human Rights Res. 6 (XXV) (Mar. 4, 1969). Theodoor C. van Boven, Fact-Finding in the Field of Human Rights, 3 Israel Y.B. Hum. Rts. 93, 102 (1973). Belgrade Minimal Rules of Procedure for International Human Rights Fact-Finding Missions, para. 1, adopted at the Conference of the International Law Association, Belgrade, 1980; Rules on International Human Rights Fact-Finding, supra note 2, para. 6.

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have not expressed the same caution,72 and indeed investigations initiated under the Commission on Human Rights 1503 procedure were only commenced where communications “appear[ed] to reveal a consistent pattern of gross and reliably attested violations of human rights.”73 A balance is needed between sufficient concern at a situation to warrant the mandating of a fact-finding mission and ensuring transparency and open-mindedness. Principles that any mission must strive for accuracy and give equal consideration to all parties must be generally applicable. In weighing up whether Resolution S-3/1 contained “conclusory language that palpably interfered with the integrity of the fact-finding process”74 and thus so undermined its function that the mission it established could be discounted, it should be remembered that the mandate requires the investigation of a specific incident (the assault on Beit Hanoun), which occurred within the broader contexts of occupation, continued rocket attacks from Gaza, and other military incursions into Gaza. The broader context has been subject to repeated investigations and statements including from the International Court of Justice.75 While each particular incident has its own trajectory and must be subject to its own individual assessment, it seems artificial to ignore this reality. 76 The practical consequence of an assessment of illegitimacy is likely to be non-cooperation by the target state and indeed this was what transpired when Israel failed to affirm access to Gaza. Unlike fact-finding by inter-state special agreement for dispute resolution, the consent of the target state is not necessary for the setting up of a mandate by the Human Rights Council.77 Prior consent is required for admission to the state’s territory.78 The dispatch of a fact-finding mission is an intrusive act and may be resented as unwarranted interference into events deemed to be within the target 72

73 74 75 76

77

78

Draft Model Rules of Procedure suggested by the Secretary-General of the U.N. for ad hoc Bodies of the U.N. entrusted with Studies of Particular Situations alleged to reveal a Consistent Pattern of Violations of Human Rights, U.N. Doc. E/CN.4/1021/Rev.1; Model Rules of Procedure for U.N. Bodies dealing with Violations of Human Rights, Working Group of the Commission on Human Rights, U.N. Doc. E/CN.4/1134 (Feb. 1, 1974). Admittedly, neither of these Model Rules has been widely used. ECOSOC Res. 1503 (XLVIII) (May 27, 1970). Franck & Fairley, supra note 63, at 316. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136 (in the context of the West Bank). Ramcharan considers that where a fact-finding mission is established “after pronouncements on the human rights situation in question have been made by its parent organ, it should generally be guided by such pronouncements.” B.G. Ramcharan, Substantive Law Applicable, in International Law and Fact-Finding, supra note 8, at 26, 27. In contrast, ECOSOC Resolution 1503 applied to investigations where “the Commission on Human Rights appoints an ad hoc committee to carry on an investigation with the consent of the State concerned.” For the replacement complaints mechanism, see Human Rights Council Resolution 5/21, paras. 85-109. G.A. Res. 46/59, supra note 23, para. 6. The exception is the Security Council acting under U.N. Charter, chapter VII. However states “should endeavour to follow a policy of admitting United Nations fact-finding missions to their territory.” Id. para. 21.

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state’s jurisdiction. There have been many such instances where a human rights factfinding mission has been unable to visit the territory in question79 and responses have varied. The Human Rights Council had already faced the issue of refusal of permission for a fact-finding mission to visit the territory in question. Thus despite being warned about “flaws”80 in the mandate the Council had adopted Resolution S-1/1, deciding to dispatch an urgent fact-finding mission to the Occupied Palestinian Territory headed by the special rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. Israel did not consent to the mandate and after preparing for the mission the special rapporteur informed the Council that “as far as [he] was concerned the mission could not proceed.”81 The high-level fact-finding mission to Darfur had also not been able to obtain visas for Sudan, although Sudan had “welcomed” the decision to establish the body.82 A pattern appeared to be emerging of states frustrating the Council’s will, thereby undermining its credibility and perhaps suggesting its lack of political sensibility by adopting unworkable or biased mandates. It might be noted that the General Assembly in an emergency session had also called for the dispatch of a fact-finding mission to Beit Hanoun,83 which never took place. But the General Assembly is a rather more durable and robust institution than the fledgling Human Rights Council. The Council’s response to the stalemate of nearly two years was to reiterate the mandate.84 This placed us as members of the mission in something of a quandary. One possibility was to accept the deadlock and abandon the mission. Although this was the approach adopted by John Dugard with respect to Resolution S-1/1, he was able to visit the Occupied Palestinian Territory in his capacity as special rapporteur. He explained that as special rapporteur he “report[s] on the overall situation in the Occupied Palestinian Territory without attempting to investigate or resolve any factual dispute. [He is] not a one-person fact-finding mission.”85 We had no alternative Human Rights Council mandate. Another option was to write a report without visiting Beit Hanoun. This approach has been taken by many fact-finding missions, in79 80

81 82 83 84

85

“[T]he great bulk of human rights fact-finding by both IGOs and NGOs is accomplished without on-site visits.” Weissbrodt & McCarthy, supra note 14, at 59. Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, John Dugard, on the non-implementation of Human Rights Council resolution S-1/1, U.N. Doc. A/HRC/5/11, para. 3 (June 8, 2007). The flaws included failure to indicate the facts to be investigated. Id. para. 4. Human Rights Council Res. 4/8 (Mar. 30, 2007). U.N. Doc. A/ES-10/L.19 (Nov. 17, 2006). This resolution did refer to the Kassam rockets fired from Gaza. Human Rights Council Res. 4/2 (Mar. 27, 2007); Human Rights Council Res. 6/22 (Sept. 28, 2007). The mission presented an Interim Report explaining the situation and making some recommendations. See U.N. Doc. A/HRC/5/20 (June 28, 2007). Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, supra note 80, para. 12.

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cluding the Human Rights Council Darfur mission.86 There were, however, practical difficulties to taking this position. The mandate stipulated that the mission should visit Beit Hanoun to assess the situation of survivors and victims of an incident, the occurrence of which was not disputed. There was a lack of survivors of the shelling outside the Gaza Strip to interview. In contrast, the Darfur resolution did not specify a visit allowing the members of that mission to determine that they could base a report on as much information as they could gather from as many alternative sources as possible,87 including from refugees in Chad. A third option was to go into Gaza through the Rafah Crossing, mainly controlled by Egypt. The objections to this course of action were both practical (the United Nations Department of Safety and Security cautioned United Nations missions against making the crossing at Rafah, it had never been used by a U.N. mission or staff, and it was uncertain whether it would be open88) and limiting (failing to go through Israel would prevent any interviews with Israeli citizens, military or political officials and thus restrict first hand information on the situation there). Eventually, however, the mission considered it important to travel to Beit Hanoun and accessed Gaza through the Rafah crossing in May 2008, over eighteen months after the deaths had occurred.89 A significant issue of fact-finding is that of participation. Mission members should be unbiased and seen to be so, serve in their personal capacity, and have the requisite competence, expertise and experience. The context will determine what expertise is required. For example, technical or military expertise would have been useful in the mission to Beit Hanoun for assessing the evidence relating to the timing of the shelling, the positioning of its source and determining whether technical error was a feasible explanation.90 It is accepted that parties select arbitrators and judges ad hoc to the International Court of Justice but this is not necessarily the case with human rights fact-finding missions. In the case of the Human Rights Council, fact-finding missions the members are selected by the President of the Council, unless participants are specified in the mandating resolution, for example relevant special rapporteurs. The Security Council and General Assembly generally invite the Secretary-General to form the 86 87 88 89

90

Report of the high-level mission on the situation of human rights in Darfur pursuant to Human Rights Council decision S-4/101; U.N. Doc. A/HRC/4/80 (Mar. 9, 2007). “It should not be presumed, however, that on-site visits are always necessary for effective fact-finding.” Weissbrodt & McCarthy, supra note 14, at 59. From June 1, 2006 until December 11, 2006, the crossing had opened only twenty-three times, and in the month of November 2006, it had opened only on two days. The mission underlined “the importance of its travelling to Beit Hanoun to witness firsthand the situation of victims and survivors of the shelling, in particular to comprehend the deep distress of the victims of the shelling and of the population generated by the ongoing blockade.” Report of the high-level fact-finding mission to Beit Hanoun established under Council resolution S-3/1, U.N. Doc. A/HRC/9/26, para. 8 (Sept. 1, 2008). Although the mandate referred primarily to the situation of victims and survivors, the requirement to make recommendations entailed assessment of factual aspects of the shelling.

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fact-finding team.91 Many early such missions comprised members drawn from diplomatic or government representatives and were inevitably associated with the political stance of those governments. Both the method of selection and the membership of fact-finding missions have at different times led to accusations of bias. Two examples illustrate differing consequences of such assertions. Following the Six-Day War, the General Assembly resolved in 1968 to establish a Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories.92 Israel responded to the selection of the Committee members with a note verbale alleging that it was “tainted with political bias and procedural irregularity.”93 Israel complained that the appointment had been made through an “unwarranted process” that had been “[u]nable to find nominees … with any pretensions to impartiality or balance.” Israel continued that the composition of the Committee had: automatically guaranteed its anti-Israel bias. One of its three members, Somalia, functions at the United Nations and elsewhere as if it were wholly within the Arab camp; it has refused to recognize the State of Israel or have relations with it. Another of the three members …, Yugoslavia, broke off diplomatic relations with Israel at the time of the hostilities of June 1967, and has since openly identified itself with the political positions of the Arab States. The third member, Ceylon, maintains limited diplomatic relations with Israel, but for reasons of its own has generally voted in favour of Arab resolutions at the United Nations.94

For these understandable reasons Israel had refused co-operation with or facilities to the Special Committee, which nevertheless proceeded with its work. Its report was compiled on the basis of documentation, of hearings in London, Beirut, Damascus, Amman, Cairo, Geneva and New York where evidence was collected from “persons who claimed to have first-hand experience of breaches of human rights,” and by examining statements from “members of the Israeli Government and other political leaders, relevant to the allegations with which the Special Committee is concerned.”95 In the second example, disagreements about the membership and mandate of a fact-finding body contributed to its abandonment. In 2002, the Security Council had welcomed the Secretary-General’s initiative to establish a fact-finding team to inquire into and to develop accurate information on recent events in the Jenin refugee camp in the West Bank, described in the Resolution’s preamble as reports “of 91

92 93

94 95

The GA Declaration on Fact-Finding states that the Security Council and General Assembly should give preference to the Secretary-General “in deciding to whom to entrust the conduct of a fact-finding mission”; supra note 23, para. 15. G.A. Res. 2443 (XXIII) (Dec. 19, 1968). Report of the Special Committee to Investigate Israeli Practices affecting the Human Rights of the Population of the Occupied Territories, U.N. Doc. A/8089, para. 11 (Oct. 5, 1970). Id. Id.

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an unknown number of deaths and destruction.”96 The Israeli government raised a number of concerns, including to the proposed composition of the mission (former Finnish President, Martti Ahtisaari, former U.N. High Commissioner on Refugees, Sadako Ogata, and the former head of the International Committee of the Red Cross, Cornelio Sommaruga; there were also high-level advisers with military, policing, legal and medical expertise). It asserted the mission to have been “selected without consultation, lacks technical expertise and is not neutral.”97 It was also suggested that the emphasis was too much on humanitarian rather than military expertise. The Secretary-General considered the concerns to be “fundamental in nature.”98 After some attempts at resolving the differences the mission was called off,99 amid warnings from some member states that this would jeopardize the Security Council’s authority and undermine its credibility. Central to any mission is the mandate which is the basis for its competence and legitimacy. A mission has no authority outside its terms. Accordingly, a mandate should be specific and concise while also sufficiently flexible to allow for investigation and reporting on other relevant circumstances. The mandate must be construed by the mission’s members in advance of commencing the work. Negotiation of the wording of the mandate may well have been contentious resulting in ambiguities and imprecision and some specific issues are likely to have to be resolved. For example, while the mandate for the fact-finding mission to Beit Hanoun was more precise than that in Human Rights Council Resolution S-1/1 that was criticized by John Dugard, the meaning and application of some terms had to be determined. For instance, who constituted “victims,” who were the “concerned parties,” and was it possible to achieve even-handedness? Such issues require careful deliberation and transparent decision-making. In accordance with the assumption of the centrality of international law and human rights law in the construction of a Human Rights Council mandate, the definition of victim in the General Assembly’s Basic Principles and Guidelines on the Right to a Remedy was adopted;100 “all concerned parties” were those bound by international humanitarian law;101 and the requirement that the mission make rec96 97

S.C. Res. 1405 (Apr. 19, 2002). http://www.badil.org/Publications/Press/2002/press248-02.htm. This membership contrasts with those missions where members are drawn from diplomatic or government representatives. 98 U.N. Press Release, U.N. Doc. SC/7391 (May 3, 2002). 99 U.N. Doc. S/PV.4525 and S/PV.4525 (May 3, 2002). 100 GA Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147 (Dec. 16, 2005). 101 The follow-up resolution to the Mission’s report, Human Rights Council Resolution 9/18 (Sept. 24, 2008), calls only upon “all concerned parties” (rather than “all parties”) to implement its recommendations, despite reference in the report to the obligations of the international community, “in particular its silence which begets complicity.” Report of the high-level fact-finding mission to Beit Hanoun established under Council resolution S-3/1, U.N. Doc. A/HRC/9/26, para. 81 (Sept. 1, 2008).

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ommendations for the protection of Palestinian civilians opened the way for inclusion of consideration of the firing of rockets from Gaza. However, the failure of Israel to cooperate with the mission resulted in lack of access to these Israeli victims. Another issue is the relevant time span for the focus of investigation. Resolution S-3/1 specified “Israeli military operations carried out in Beit Hanoun on 8 November 2006,” but also referred to the then “recent incursion in northern Gaza,” which provided the immediate context. The wider context again was “continued violation by the occupying Power, Israel, of the human rights of the Palestinian people in the Occupied Palestinian Territory.” The 18 month delay before the commencement of the mission meant that subsequent events had become relevant to the situation of victims and survivors, notably the blockade of Gaza, fear of further attacks on all sides and more violence. If these realities were ignored the relevance and credibility of the mission might have been weakened, but they undoubtedly were outside the immediate focus of the mandate on the shelling of Beit Hanoun in November 2006. It was decided that the open-ended requirement to “assess the situation of victims and address the needs of survivors” allowed a long term perspective, up to at least the date of the on-site visit. Another issue that has to be addressed at the outset is that of methodology and process. Resolution S-3/1 did not spell out any procedures or indicate how they should be determined. Various attempts to provide for model rules or good practice for international fact-finding have not proved successful in the sense of being widely drawn upon.102 Indeed such rules—whether for IGOs or NGOs—might undermine the inherent flexibility of fact-finding, which is one of its greatest strengths.103 General Assembly resolution 60/251 stresses that the Council’s working methods shall be transparent, fair and impartial. The Council has enlarged upon this by requiring working methods to be “transparent, impartial, equitable, fair, pragmatic; lead[ing] to clarity, predictability, and inclusiveness.”104 These same principles must apply to its mandated missions. While members of missions may establish their own working procedures (unless otherwise stipulated) there are numerous international standard setting instruments and guidelines that should be complied with. Each phase of the mission—detailed preparation, on-site visit (if such occurs) and writing of the report—all require separate consideration and attention to the requirements of due process in the context of the particular incident(s) under investigation. Two related important issues for all human rights missions are those of managing expectations of people on the ground and the probity of speaking on their behalf. In whose interest is a human rights fact-finding mission dispatched to a territory: the victims and survivors of human rights abuses; the human rights institution to demonstrate that it is responding to allegations of abuse; or the wider international 102 The Final Act of the Teheran Conference, 1968 Resolution X, recommended Model Rules of Procedure for Bodies dealing with Violations of Human Rights. See ECOSOC Res. 1870 (LVI) (May 17, 1974); see also Model Rules, supra note 72. 103 But see Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council, Human Rights Council Res. 5/2 (June 18, 2007). 104 Human Rights Council Res. 5/21, para. 110.

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community? Priorities for the first are usually practical assistance—appropriate and accessible medical care, secure shelter, information about family members and assistance in receiving reparation. Above all, they need the violence and other abuses to stop and a normalization of life. Human rights missions do not offer any of these and may be met with skepticism about “human rights tourism” and resentment, especially where there have been multiple such missions. Further, members of a mission inevitably impose their own interpretation on what they see and hear: “[mission members] could not purport to represent them [people on the ground] in a literary, political, or legal sense.”105 Such expectations are not easily addressed but at the least the purpose of the mission must be fully explained to all relevant persons and care taken not to engender any false—or unrealistic—expectations. V. Conclusions What conclusions can be drawn from this discussion of international human rights fact-finding? Is it a useful tool for U.N. human rights bodies or more widely “a significant weapon in the armory of world order,”106 or should it be abandoned as having little practical consequence? Addressing these questions from the perspective of the Beit Hanoun fact-finding mission the conclusions must be mixed. On one level, the mission can be deemed a success for the Human Rights Council: it was able to fulfill all parts of its mandate, including an on-site visit and making recommendations. The report of the mission107 was adopted by the Council with the recommendation that the General Assembly consider the report and the SecretaryGeneral report on the implementation of the recommendations.108 However, the vote on the adoption of the report109 revealed the continued polarization of the Council and that political negotiation has not been able to achieve consensus on how best to ensure that “all concerned parties … refrain from violence against the civilian population.”110 The Council’s legitimacy in this regard remains uncertain. But, more importantly, writing in early 2009 what is only too apparent is that it has not contributed positively to peace and security within the region, to any peace process, to an improvement in the protection of human rights for people in the Gaza Strip or Southern Israel, or to enforcement of international humanitarian law. The primary objectives of fact-finding—international dispute resolution, contribution to peace and security, change in behavior and human rights compliance by all relevant parties—have not been accomplished. Reaffirmations of the need for accountability

105 Audrey Macken, “Our Sisters from Stable Countries”: War, Globalization and Accountability, 10 Social Pol. 256, 267 (2003). 106 Franck & Fairley, supra note 63, at 308. 107 Report of the high-level fact-finding mission to Beit Hanoun, supra note 101. 108 Human Rights Council Res. 9/18 (Sept. 24, 2008). 109 Human Rights Council Resolution 9/18 was adopted by 32 votes in favour, nine against and five abstentions. 110 Human Rights Council Res. S-3/1 (Nov. 15, 2006).

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and commitment to the rule of law111 remain unobserved, furthering a climate of impunity and continued cycles of extreme violence. Perhaps this conclusion should encourage reconsideration of the premise upon which human rights fact-finding missions are based: that investigation and dissemination of the facts of human rights abuses may induce positive change in human rights compliance in a particular context. Why should more reporting of the facts of human rights abuses induce compliance with international obligations by all those responsible in situations such as those in Lebanon, Darfur, and Gaza?112 In situations where factual disagreements are at least one element of a wider dispute independent fact-finding may assist in achieving settlement,113 but, as discussed, the context of much human rights fact-finding is often different. With contemporary investigative journalism, extensive media coverage, blogs and other forms of electronic communication and proliferation of NGO and IGO fact-finding missions, there has often been much publicity given to the basic facts. Some may not be disputed. For example, that civilians in Beit Hanoun had died as a result of Israeli shelling was not at issue. While there may be important factual details to be further investigated and clarified (or assumed facts to be disproved), making recommendations requires legal analysis within the framework of the applicable laws: was a war crime committed; was error a valid defense; what other issues must be considered? These tasks go beyond the initial concept of fact-finding. A fact-finding mission does not have the procedural safeguards of a court of law. Reports of some human rights factfinding missions may be used in judicial or other proceedings and thus perform the complementary function described above. But they cannot replace forms of information gathering developed and relied upon by courts.114 In many instances where fact-finding missions are mandated, those responsible for the violations know they are committing human rights abuses. More often than not it seems that human rights violations in such situations are not committed through ignorance, lack of technical ability to comply, or chance but because of consciously selected policies. These policies may either deliberately flout human rights 111

Report of the high-level fact-finding mission to Beit Hanoun, supra note 101, paras 76, 78. The Secretary-General reported that as at January 2009 none of the Report’s recommendations had been implemented. See Report of the Secretary-General, Follow-up on the implementation of the recommendations contained in the report of the high-level fact-finding mission to Beit Hanoun established under Human Rights Council resolution S-3/1, U.N. Doc. A/HRC/10/27 (Mar. 6, 2009). 112 Benedict Kingsbury has argued that compliance is a problematic concept and that we lack an account of the “causal relations of law and behavior.” Benedict Kingsbury, The Concept of Compliance as a Function of Competing Conceptions of International Law, 19 Mich. J. Int’l L. 345, 348 (1998). 113 For example, in the oft-cited Red Crusader dispute whether the ship was fishing, or fishing gear was stowed was all important. See Merrills, supra note 12, at 53-56. 114 Independent investigation is of course important for the prosecution of crimes, including international crimes. Reports prepared by fact-finding missions are not generally directed towards the needs of evidence for establishing individual criminal responsibility, which is a separate and expert function.

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law (and where applicable international humanitarian law115) or may be adopted in pursuance of other imperatives with disregard for their human rights consequences. Governments (and others) avail themselves of their “standard repertoire”116 of response to critics, described by Stanley Cohen as denial, an attack on the critic, and partial acknowledgment of the criticism.117 In response to the Beit Hanoun assault Israel resorted to a blend of all three. It did not deny the shelling, regretted the deaths but interpreted it as a technical error (interpretive denial) that it had sought to rectify (partial acknowledgement).118 By referring to the responsibility of terror organizations for random violence119 it also asserted the “righteousness” and “necessity” of its response.120 Through non-co-operation it challenged the legitimacy of the mandate (attack the critic). Choices of behavior and response are not likely to be susceptible to change in reaction to another report, especially when there is no sanction attached and in a context where international law appears to have become too often discounted. If the reports of human rights fact-finding missions merely prolong a “circuit of responses” rather than inducing behavioral change and have limited utility with respect to collecting evidence for subsequent proceedings, are there other objectives that can be achieved through these processes? I think there are three. First, precisely because basic facts may be thought to be known, it is important that they should be scrutinized and tested. Facts are after all murky, complex, disputed and subject to multiple interpretations. Nuances should be recorded by the authoritative institutions of the international community.121 The very fact that states 115

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The International Fact-Finding Commission established to investigate alleged breaches of the Geneva Conventions has never been used; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1977, art. 90. Stanley Cohen, Government Responses to Human Rights Reports: Claims, Denials and Counter-Claims, 18 Hum. Rts. Q. 517, 519 (1996). Id. at 521. In response to a question by Cuba Israel stated that “the events were the subject of an extensive investigation … and revealed that the damage was not intentional and was caused by a severe malfunction. New recommendations and procedures have been put in place to prevent such a tragedy from recurring.” U.N. Doc. A/HRC/10/76, para. 96 (Jan. 8, 2009). The Israeli military asserted that “the responsibility for this rests with the terror organizations, which use the Palestinian civilian population as a ‘human shield,’ carrying out terror attacks and firing Kassam rockets at Israeli population centres from the shelter of populated areas;” Report of the high-level fact-finding mission to Beit Hanoun, supra note 101, para. 34. Id. paras 34-35. This is not to assert that the conclusions of a fact-finding report are necessarily determinative. “Quite apart from more theoretical concerns about the indeterminacy of meaning,” a fact-finding mission adds an independent assessment of the situation but cannot assume “interpretive authority” over people on the ground. Macken, supra note 105, at 267.

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refuse to co-operate with fact-finding missions emphasizes that the tension between state sovereignty and human rights obligations has not been resolved.122 The gathering of information, its evaluation and dissemination of a report in a public arena denotes that the core value of human rights has not been conceded. In the case of Beit Hanoun it also showed that the passage of nearly two years did not detract from the seriousness of the allegations and that in the absence of a credible explanation from Israel one was still sought. Second, there is a danger of ongoing human rights violations becoming routine, normalized and tolerated by the international community. The very fact of an investigative procedure is a reminder that this should not be so. For example, when the Beit Hanoun mandate was adopted, people in Gaza were enduring the consequences of the “summer rains” and “autumn clouds” military incursions that took place in the latter part of 2006. The attention given to the 8 November shelling of Beit Hanoun also allowed the expression that it is not normal for people to live under such conditions, which should be subject to ongoing international scrutiny. The same is true of the situation of persons living in the firing range of rockets from Gaza. In January 2009, there was much talk in the media of a humanitarian crisis “emerging” in Gaza. This served to minimize the extreme harshness of living conditions that already existed and so to raise the threshold of what is understood as crisis. This is illustrated by the differing perspectives of speakers at the ninth special session of the Human Rights Council. Reinhard Schweppe, speaking on behalf of the European Union, expressed the Union’s “deep concern” about the human rights situation in Gaza. He noted the Council’s “opportunity to focus on the human rights consequences of the conflict, and address the needs of all victims.”123 This narrowed the temporal and spatial dimensions of the human rights abuses in Gaza to those associated with the immediate conflict, the crisis. Such (re)definition of conflict and crisis deflects attention from the regular “everyday” crisis124 of deprivation of an adequate standard of living, which is not made directly subject to a fact-finding mission, to the circumscribed crisis, which is. Professor Falk, special rapporteur for the Palestinian Territories occupied since 1967, in contrast drew attention to the wider picture, what had become normal in Gaza:125

122 The situation in the Palestinian Territories is the epitome of this clash. “The Palestine crisis represents U.N. fact-finding at the most extreme end of the continuum of the issue of sovereignty.” Firmage, supra note 7, at 466. 123 Statements in explanation of vote before the vote on the draft resolution made by the representative of Germany (on behalf of States members of the European Union that are members of the Council), U.N. Press Release (Jan. 12, 2009). 124 Hilary Charlesworth, International Law: A Discipline of Crisis, 65 Mod. L. Rev. 377 (2002). 125 This was admittedly not on the basis of immediate observation as Professor Falk had been denied entry to Israel on December 14, 2008, but as part of the on-going factfinding and monitoring function of a special rapporteur.

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Beyond the immediate crisis some underlying features should be noted: about 75 of the population lacks access to sanitary water and has no electric power. Such conditions are superimposed on the circumstances of Gazans resulting from the prolonged blockade that had deteriorated the physical and mental health, and the nutritional status, of the population of Gaza as a whole, leaving some 45 of children suffering from acute anaemia. … It was also reliably concluded that up to 80 of Gaza was living under the poverty line, that unemployment totals approached 75, and that the health system was near collapse from the effects of the blockade. This set of conditions certainly led impartial international observers and civil servants to an uncontested conclusion that the population of Gaza was already experiencing a humanitarian crisis of grave magnitude prior to 27 December.126

The Beit Hanoun report issued earlier supports this conclusion that what is now presented as exceptional—humanitarian deprivation—has in fact become the norm. A human rights fact-finding mission is mandated to address and record details of the particular but does so in the broader context in which the identified crisis occurs. It thus supplements the work of other human rights mandate holders. In this light what may appear as a biased mandate may in fact be acknowledging that while some facts are known that is not true of all and that it is important that the experience of factfinding is encountered to provide an institutional account on the ground to widen the net of potential accountability.127 Third, a human rights fact-finding mission is oriented towards the victims and survivors of human rights abuses, explicitly so in the case of the Beit Hanoun mandate. It provides a forum for individuals to express themselves and to explain what has happened to them, even if not directly to the perpetrators. Although their voices become mediated through those of the members of the fact-finding mission, there is an importance in bearing witness, especially in a place like Gaza where there has been “no systematic follow-up of the situation of victims to assess their progress, their ongoing medical or other needs.”128 This has heightened value where the person to whom they are speaking has the moral authority and international standing associated with truth telling of Archbishop Tutu. His presence may make the Beit Hanoun fact-finding mission exceptional but the process offers them an opportunity to provide and make available a record of events and their consequences that has been carefully considered and corroborated by independent outsiders. This may make counter-productive Israel’s unwillingness to co-operate and thereby to deny the same opportunity to all victims and survivors, including those in southern Israel. The report of a human rights fact-finding mission can become integral to building a file of authoritative information for subsequent use. The mission may provide a 126 Statement of special rapporteur for the Palestinian Territories occupied since 1967 for presentation to the special session of the Human Rights Council on the situation in the Gaza Strip (Jan. 9, 2009). 127 The Beit Hanoun fact-finding mission addressed conclusions and recommendations to Israel, to Hamas and to the international community. See Report of the high-level factfinding mission to Beit Hanoun, supra note 101, paras. 75-7, 79, 81. 128 Id. para. 43.

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bridge between the commission of human rights abuses in a specific time and place and some future time when other processes for accountability and justice become politically possible. In this sense it may have more in common with some of the rationales of transitional justice than those of international dispute resolution. There is little doubt that institutions will continue to dispatch human rights fact-finding missions in the future; their purpose and contribution to human dignity should be recognized in this light.

Chapter 27 Choice of Gender Identity in International Human Rights Law Aaron Xavier Fellmeth*

Michael Reisman’s work has long qualified the traditional deference to state sovereignty as a pragmatic choice valued because it ultimately serves the goal of protecting human life and dignity.1 In placing state sovereignty in subservience to more fundamental values while recognizing the importance of a stable world public order, Reisman calls for realistically balancing the needs of states—as mediators between groups of individuals who claim differing cultural beliefs, ideologies, and allegiances—and the universal and equal rights of all individuals regardless of these differences.2 Pushing international law beyond the limits of realistic acceptance by states, which do the heavy lifting in international law enforcement, risks undermining the law’s legitimacy and threatening its authoritative status. The enduring tension, some would say weakness, in international human rights law arises from its role as a restraint on the very states charged with enforcing it. Yet some international human rights claims challenge state power more than others. When an asserted right challenges the state’s official ideology or a widespread cultural belief, the state may be expected to resist recognizing the right with special vigor. Today, as historically, there are few subjects more burdened with ideological and cultural import than sexuality and gender. For whatever reason—religious, biological, or social—societies and their governments tend to resist relinquishing control over sex- and gender-related public policies, no matter how personal or private the individual’s interest in autonomy may seem. Transgendered persons must struggle with just such entrenched social norms in claiming human rights to freedom from discrimination and official recognition of their claimed gender. Their struggle in this regard resembles that of homosexuals and bisexuals claiming rights to nondiscrimination, privacy, and freedom of intimate association and family life. The similarities between the challenges these groups face * 1 2

The author thanks Beth DiFelice for her research assistance. See, e.g., W. Michael Reisman, Why Regime Change Is (Almost Always) a Bad Idea, 98 Am. J. Int’l L. 516, 517 (2004). Cf. W. Michael Reisman, Coercion and Self-Determination: Construing Article 2(4), 78 Am. J. Int’l L. 642 (1984).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 499-516.

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have frequently caused gay rights advocates to align themselves with transgender rights advocates. Many international gay rights nongovernmental organizations now include transgender rights among their portfolio of causes.3 Despite the obstacles, advocates of transgendered persons have on the whole made significant progress in advancing their claims in some regions. In some cases, their success has been sufficiently notable to overshadow the successes of homosexuals in making comparable claims.4 Such success may seem surprising in light of the very small number of transgendered persons worldwide5 and discomfort with the concept of transgenderism among a large percentage of the public in most states.6 This essay 3

4

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6

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILTGA) is perhaps the most prominent example. At its 2004 regional conference in Santiago de Chile, one of then-ILGA’s main themes was the inclusion of gender identity issues in the movement. Another example is the Human Rights Campaign, whose mission is “to achieve lesbian, gay, bisexual and transgender equality.” Human Rights Campaign, About Us, http:// www.hrc.org/about_us/index.htm (last visited June 4, 2009). On advances in recognition of international human rights for sexual minorities, see generally Aaron Xavier Fellmeth, State Regulation of Sexuality in International Human Rights Law and Theory, 50 Wm. & Mary L. Rev. 797 (2008). While the number of transgender persons has not been reliably estimated, the population percentage of transsexuals is consistently estimated at well under 1 in the United States and Europe. See, e.g., American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 535 (4th ed. 1994); P.L. Eklund, L.J.G. Gooren & P.D. Bezemer, Prevalence of Transsexualism in the Netherlands, 152 Brit. J. Psychiatry 38 (1988). See, e.g., Darryl B. Hill & Brian L.B. Willoughby, The Development and Validation of the Genderism and Transphobia Scale, 53 Sex Roles 531 (2005) (finding extremely intolerant attitudes toward transsexuals among subjects in Montréal, Québec); Mikael Landén & Sune Innala, Attitudes Toward Transsexualism in a Swedish National Survey, 29 Archives of Sexual Behavior 375, 379-80 (2000) (reporting that some 40 of Swedes object to befriending a transsexual and would not allow transsexuals to work with children); Harold Leitenberg & Lesley Slavin, Comparison of Attitudes Toward Transsexuality and Homosexuality, 12 Archives of Sexual Behavior 337, 341 (1983) (reporting that over 20 of college students in a liberal U.S. state found transsexuality “always wrong”); Anthea De Lima, Many Do Not Sympathise with “Mak Nyahs,” New Straits Times (Kuala Lumpur), Aug. 5, 2002 (reporting that 48 of students surveyed viewed transsexuals as “part of society’s social ills.”); Donald Asprey, Transsexuals Are Family Outcasts, But Find Support Elsewhere, S. China Morning Post, June 20, 2006, at 1 (reporting that more than half of Hong Kong residents surveyed considered sex change operations morally wrong and 49 referred to transsexuals as “human beasts”); Mubarak Dahir, Transgender Breakthrough, The Advocate, Oct. 15, 2002, at 38 (reporting that 31 of U.S. residents surveyed felt “unfavorable” toward transgendered persons and 33 considered being transgendered “morally wrong”); Most of Young Czechs Intolerant of Romanies, Prisoners—Poll, BBC Monitoring Europe, Dec. 17, 2007 (finding 50 of polled Czech students aged 12-20 have negative attitudes toward transsexuals, versus some 33 toward homosexuals); Press Scanner: Poll Gives Curious Results, Turkish Daily N., 2002 WLNR 7478374 (June 4) (reporting that 61 of Turks polled stated that they “would not tolerate” living in the same apartment building with a transvestite).

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will summarize the state of international human rights law relating to transgendered persons to demonstrate the obstacles to further recognition of transgender rights and the movement’s seemingly paradoxical success so far. It will then suggest some reasons for and potential problems with tying transgender rights to similar rights for homosexuals but will argue that human rights claims by the two groups have much in common despite the apparent discrepancies. I. Advances in the Recognition of Transgender Rights The recognition of human rights for homosexuals and bisexuals is a relatively recent, and still a limited, phenomenon.7 Europe and the British Commonwealth states—especially Canada and South Africa—have led the way toward the acceptance of gay rights as human rights.8 In these states, transgender rights have evolved more or less in parallel with gay rights, and in most cases the evolution has been rapid and recent. Before 1989, not a single member of the European Community (EC) had adopted a law specifically protecting transsexuals from discrimination,9 but a few European states had already legally codified a right of transsexuals to official recognition of sex reassignment surgery and to marry a person of their birth sex.10 This practice was far from universal, and procedures in many member states for recognition were cumbersome and slow, if not altogether absent.11 The first major change in policy came in 1989, when the EC Parliament12 and the Council of Europe (CoE) Parliamentary Assembly13 called for comprehensive recognition of gender and sex changes and the enactment in member states of legislation to prevent discrimination against transgendered persons. The CoE Assembly adopted the position that “human dignity and personal rights must include the right to live according to one’s [conception of one’s own] sexual identity” and called on CoE member states to “enact provisions on transsexuals’ rights to change sex” through surgical

7 8 9

10 11

12 13

See generally Fellmeth, supra note 4, at 814-72. See id. Resolution on Discrimination Against Transsexuals, Eur. Parl. Doc. A 3-16/89 [hereinafter EC Parliament Res. C256/33], Explanatory Statement (Doc_EN\RR\73316.TO), at 14. E.g., Greg Taylor, The New Gay and Lesbian Partnerships Law in Germany, 41 Alta. L. Rev. 573, 582 (2003). In Ireland, for example, there were no procedures for governmental recognition of a sex reassignment. See EC Parliament Res. C256/33, supra note 9, Explanatory Statement, at 10-12. Id. ¶¶ 2, 9. Eur. Consult. Ass., Recommendation 1117 on the Condition of Transexuals, 21st Sess., Doc. No. 6100 (1989), available at http://assembly.coe.int/Mainf.asp?link=/Documents/ AdoptedText/ta89/EREC1117.htm.

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and other medical intervention to be covered by private or public health insurance.14 It further called for a European convention for the protection of transsexuals.15 The EC Parliament resolution focused on specific topics of concern to transgendered persons. It called on the Commission and Council to clarify that EC directives relating to workplace equality, as currently drafted, already outlaw discrimination against transsexuals, and it called on the EC Council and member states to recognize persecution on grounds of transsexuality as a basis for granting asylum.16 Furthermore, the Parliament called on the Council of Europe to draft and adopt a convention for the “protection of transsexuals,” presumably meaning protection from both public and private discrimination, and it urged the Commission to create an office for reporting cases of discrimination based on transsexuality.17 As the parliamentary bodies of the Council of Europe and the European Community pushed for recognition of human rights for transgendered persons, the judicial organs overcame their initial reluctance to enforce nondiscrimination rights. In its 1996 decision in P. v. S. & Cornwall County Council, the European Court of Justice (ECJ) held that an employer’s dismissal of an employee based on gender reassignment surgery violated Directive 76/207, which prohibits discrimination based on “sex.”18 Several years later, in K.B. v. NHS Pensions Service Agency, the applicant, a women living with a female-to-male transsexual, had been denied the right to marry her partner under U.K. municipal law and, because she was unmarried, further denied the right to designate her partner as the beneficiary of her pension.19 To the claim of sex discrimination, the court responded that Article 141 (previously Article 119) of the Treaty of Rome and the Council’s Equal Pay Directive20 prohibited an EC member from obstructing the applicant’s ability to marry a transsexual partner and thereby depriving the applicant’s partner of the benefit of the applicant’s pension. Two years later, in Richards v. Secretary of State for Work and Pensions, the ECJ considered the claim of a male-to-female transsexual who had been denied the right to the more favorable retirement age afforded to women in the U.K. for pension pur-

14 15 16 17

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Id. ¶¶ 1-2, 4. Id. ¶ 3. The call, however, has not yet been answered. EC Parliament Res. C256/33, supra note 9, ¶¶ 8, 10. Id. ¶¶ 3, 13. The office was not ultimately created, but the Directorate-General of Employment, Social Affairs, and Equal Opportunity does include a Directorate for equality between men and women and for action against discrimination, while the DirectorateGeneral for Freedom, Justice, and Security counts among its mandates the protection of EC citizens from discrimination generally. Case C-13/94, P. v. S. & Cornwall County Council, 1996 E.C.R. I-2143 ¶¶ 19-23; see Chessington World of Adventures v. Reed, [1998] I.C.R. 97 (Eng.); Sex Discrimination (Gender Reassignment) Regulations 1999 (U.K.). Case C-117/01, KB v. Nat’l Health Serv. Pensions Agency, 2004 E.C.R. I-541, 1 C.M.L.R. 28 (2004). Council Directive 75/117, Equal Pay Directive, 1975 O.J. (L 45) 19 (EU).

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

poses.21 In a tersely worded judgment, the Court referred back to the K.B. case for the proposition that national legislation which precludes a transsexual, in the absence of recognition of his new gender, from fulfilling a requirement which must be met in order to be entitled to a right protected by Community law must be regarded as being, in principle, incompatible with the requirements of Community law.22

The Court explained that the right protected by EC law was not the right to equal retirement age based on sex, on the basis of which the relevant EC directive had specifically reserved the right to discriminate.23 Rather, the right was that of the postoperative transsexual to official recognition of her new gender identity. Meanwhile, after denying that, for Article 8 purposes, transsexuals could have a “family life” with unrelated persons of the same sex for some time,24 the European Commission of Human Rights ultimately extended the privacy and nondiscrimination rules of Articles 8 and 14 of the European Convention on Human Rights (ECHR)25 to transsexuals in a string of important cases handed down between the late 1980s and the early 1990s.26 The European Court of Human Rights (Strasbourg Court), too, was initially reluctant to recognize nondiscrimination rights for transsexuals and afforded states parties to the ECHR a wide margin of discretion to discriminate. After initially rejecting several claims by transsexuals seeking to compel states parties to note their post-operative sex on their birth certificates,27 the Court has now come to acknowledge significant duties on the part of states parties to afford equal rights to transgendered persons. The first move toward recognition was the Strasbourg Court’s decision in the 1992 case B. v. France. There, the Court found that France had violated a male-to-female transsexual’s right to privacy by declining to change her first name to a female one 21 22 23

24 25 26

27

Case C-423/04, Richards v. Sec’y of State for Work and Pensions, 2006 E.C.R. 3585, 2 C.M.L.R. 49 (2006). Id. ¶ 31. The directive mandated equal treatment of men and women in the field of social security, but allowed derogation in the retirement age of women and men. Council Directive 79/7, 1979 O.J. (L 6) 24, art. 7(1)(a) (EC). E.g., X & Y v. United Kingdom, App. No. 9369/81, 32 Eur. Comm’n H.R. Dec. & Rep. 220; Kerkoven v. The Netherlands, App. No. 15666/89. European Convention on Human Rights arts. 8, 14, 213 U.N.T.S. 222, entered into force Sept. 3, 1953 [hereinafter ECHR]. See, e.g., Rees v. United Kingdom, App. No. 9532/81, 9 Eur. H.R. Rep. 56, 622 (1987); B. v. France, App. No. 13343/87, 16 Eur. H.R. Rep. 1 (1992); Sheffield & Horsham v. United Kingdom, App. No. 31-32/1997/815-816/1018-1019, 27 Eur. H.R. Rep. 163 (1998). Rees v. United Kingdom, App. No. 9532/81, 9 Eur. H.R. Rep. 56, ¶¶ 37, 44 (1987); Cossey v. United Kingdom, App. No. 10843/84, 13 Eur. H.R. Rep. 622, 626, ¶ 18 (1990); Sheffield & Horsham v. United Kingdom, App. No. 31-32/1997/815-816/1018-1019, 27 Eur. H.R. Rep. 163 (1998).

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and to amend her birth certificate to reflect her new gender even though the birth certificate was designed to be updated throughout the life of the individual. The Court distinguished between those states that use birth certificates as a fixed record of an event (the birth of a child of a specific sex) and those that treat birth certificates as identification documents to be updated and used throughout an individual’s life. In two previous cases, Rees v. United Kingdom and Cossey v. United Kingdom, the birth certificate was never intended to be updated, and the Court accordingly declined to find a human rights obligation on the part of states to amend the certificate to reflect the new sex. But this was not the case in France. Given the certificate’s status as living documentation, the Court held that there was no reasonable justification for refusing to recognize the surgical gender change that France had allowed the applicant to undergo in the first place.28 As Judge Pettiti noted in dissent, the Court had not explicitly overruled Rees and Cossey.29 Consistent with this observation, the Court in subsequent years repeatedly refused to extend the rule to require the amendment of birth certificates where the certificate was not intended to be updated throughout the person’s lifetime; the Court, in other words, declined to extend to member states a positive obligation to update historical records to reflect the applicant’s new gender, even by merely adding a note indicating the gender change on the documents.30 In these cases, however, the majority faced an increasing number of dissenters (3 in 1986, 8 in 1990, and 9 in 1998), possibly indicating a gradual shift toward a less qualified recognition of a right of transgendered persons to state recognition of their new genders. The Court was mostly trailing the advanced positions of Council of Europe member states. By 1998, twenty-three of the then thirty-seven CoE member states generally recognized the new gender of transsexuals who had undergone sex reassignment surgery (some had done so as early as the 1970s31 and only four—Albania, Andorra, the Republic of Ireland, and the United Kingdom—expressly prohibited updating of their birth certificates with the new gender).32 The watershed for transgender equal rights recognition in Europe came in 2002 in Goodwin v. United Kingdom and I. v. United Kingdom.33 Like the Richards case before 28 29 30

31

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33

B. v. France, 16 Eur. H.R. Rep. at 30 ¶ 52 (1992). Id. at 38 (Pettiti, J., dissenting). Rees v. United Kingdom, App. No. 9532/81, 9 Eur. H.R. Rep. 56, ¶¶ 37, 44 (1987); Cossey v. United Kingdom, App. No. 10843/84, 13 Eur. H.R. Rep. 622, ¶ 18 (1990); Sheffield & Horsham v. United Kingdom, App. No. 31-32/1997/815-816/1018-1019, 27 Eur. H.R. Rep. 163 (1998). E.g., Transsexuelle I, BVerfGE 49, 286 (1978), http://www.oefre.unibe.ch/law/dfr/ bv049286.html (Germany). See also Cossey v. United Kingdom, App. No. 10843/84, 13 Eur. H.R. Rep. 622, ¶ 3 (Palm, J., dissenting). Sheffield & Horsham, 27 Eur. H.R. Rep. at 201 & n.95 (Bernhardt, J., partly dissenting). These include Belgium, Germany, Italy, the Netherlands, Sweden, and Turkey. See X., Y. & Z. v. United Kingdom, 1997-II Eur. Ct. H.R. 620, 654, ¶ 67 (1995). Goodwin v. United Kingdom, App. No. 28957/95 (2002) (Eur. Ct. H.R.); I. v. United Kingdom, App. No. 25680/94 (2002) (Eur. Ct. H.R.).

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

the ECJ, Goodwin and I. arose because of sex discrimination in the UK’s national insurance plan, which allowed women to retire earlier than men. The cases presented analogous facts: after the applicants had undergone gender reassignment surgery, the UK Department of Social Security continued to treat them as members of their birth sex. It also required them to enter into a special national-insurance-payment arrangement to prevent their employers from discovering their original sex.34 In considering a complaint brought under Articles 8 and 14 of the ECHR, the Strasbourg Court held that, where a state countenances or assists in gender reassignment surgery, it fails to respect a transgendered person’s private life if it refuses to recognize the resulting new gender officially.35 By requiring states that permit gender reassignment surgery to amend the birth certificate of transgendered persons, the Court established a new rule of consistent treatment: henceforth, no member state could recognize a gender reassignment surgery for some purposes but not others. The clear implication of the Court’s reasoning was that states permitting gender reassignment surgery must allow the transsexual to assume all of the rights and duties of his or her new gender. The Goodwin Court wrote in part: The Court is struck by the fact that … the gender reassignment which is lawfully provided is not met with full recognition in law … Where a State has authorised the treatment and surgery alleviating the condition of a transsexual …, it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads … . In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy. … In short, the unsatisfactory situation in which postoperative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.36

In 2004, the United Kingdom became one of the last CoE member states to implement the Court’s decision by allowing transsexuals to amend their birth certificates without conditioning this right on surgical intervention.37 The Goodwin decision further specified that recognition of the new gender encompassed the right to marry a person of the transsexual’s birth sex—a right that the Strasbourg Court has not yet recognized, seven years later, as applicable to homosexuals. Several other European

34

35 36

37

Because of the disparate retirement ages for males and females, the fact that the applicants continued to pay insurance contributions after their sixtieth birthdays would have tipped off their employers that the UK government treated them as males rather than as females. Goodwin v. United Kingdom, App. No. 28957/95, ¶¶ 78, 93 (2002) (Eur. Ct. H.R.). Id. ¶¶ 78, 90. In May 2006, the Court affirmed in Grant v. United Kingdom, App. No. 32570/03, 44 Eur. H.R. Rep. 1, ¶¶ 51, 56 (2007), that transsexuals suffering continued Article 14 discrimination based on vestigial legislation or state nonrecognition practices had a right to compensation until the effects of discrimination were rectified. Gender Recognition Act 2004, ch. 7 (Eng.).

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states now authorize the amendment of public documents notwithstanding the absence of intent to undergo gender reassignment surgery. Following Goodwin, two other important cases—Van Kück v. Germany38 and Schlumpf c. Suisse 39—have created new and significant rights for transgendered persons in Europe. In Van Kück, the applicant was a male-to-female transsexual employee of the Berlin government who sought partial reimbursement from her private health insurance company of the expenses of hormone treatments and gender reassignment surgery. The applicant was entitled to reimbursement of “necessary” medical expenses, and her claims were denied on the ground that the surgery was considered unnecessary in view of the possibility of the applicant’s gender identity disorder being resolved by extensive psychotherapy. On appeal, the German court also accepted the argument that treatments were non-reimbursable because the applicant, by self-administering female hormones without medical supervision, had “herself deliberately caused the disease [sic]” in violation of the insurance conditions.40 The applicant argued, inter alia, that she had been denied her right to a fair hearing guaranteed by Article 6(1) of the ECHR, because the German courts had arbitrarily required that gender reassignment surgery be the only possible treatment for her disorder. She also argued that the court had concluded without evidence that her use of hormone treatments had “caused” her gender disorder. The decision, she claimed, violated her rights to privacy and self-determination under Article 8 of the ECHR. Over a strong dissent, the majority accepted both arguments. The Court began its analysis with the uncontroversial observation that “gender identity is one of the most intimate matters of private life,” and it quickly concluded that a person asserting a gender identity different from his or her biological sex had a right not to be required to prove the medical “necessity” of treatment.41 The Strasbourg Court rebuked the German court for assuming that it had sufficient medical expertise and information to decide how transsexuality is caused. It concluded that a judicial decision of this kind could not have met the Article 6 requirements for a fair hearing. The Article 8 analysis did not differ substantially from the Article 6 analysis. The Court again focused on the arbitrary denial of reimbursement based on insufficient evidence and speculation. The main analytic difference was that the operative result, so to speak, was not the denial of a fair hearing but the effect of the national court decisions on the applicant’s “right to respect for her sexual self-determination as one of the aspects of her right to respect for her private life.”42 The Strasbourg Court concluded that “no fair balance” had been struck between the interests of the private health insurance company and those of the applicant,43 although the Court offered

38 39 40 41 42 43

Van Kück v. Germany, App. No. 35968/97, 37 Eur. H.R. Rep. 51 (2003). Affaire Schlumpf c. Suisse, App. No. 29002/06 (2009) (Eur. Ct. H.R.). Id. ¶¶ 23, 27. Id. ¶¶ 56-57. Id. ¶ 78. Id. ¶ 84.

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

little guidance on the proper way to balance the interests of the parties under Article 8—except perhaps by offering a fair trial under Article 6. Schlumpf involved very similar facts. The Swiss Federal Insurance Tribunal mandated a two-year waiting period before gender reassignment surgery would be authorized as a necessary medical procedure. Again, the applicant alleged violations of Articles 6(1) and 8 and prevailed on the same grounds as set forth in Van Kück. The Strasbourg Court similarly chided the Swiss court for adopting a legal requirement with no reference to the medical facts of each case and substituting its own judgment for that of medical professionals. It elaborated on the Article 8 grounds by pointing out that Switzerland is not entitled to influence an individual’s decision to seek gender reassignment surgery but must instead balance the interests of the individual with the other “interests at play.”44 In response to Switzerland’s argument that one such interest is the state’s role in ensuring that individuals do not engage in gender reassignment surgery precipitately, the Court reminded the government that individuals may not be presumed to submit without reflection to the painful and drawn out surgical, and other medical, procedures involved in gender reassignment.45 The decisions in Van Kück and Schlumpf illustrate a European trend away from trivializing questions of gender identity. In particular, the Strasbourg Court’s judgments indicate judicial intolerance for a dismissive approach to the applicant’s claims and point out what should have been evident upon the merest reflection—a person is unlikely to seek the extreme option of gender reassignment surgery unless that person has arrived at a considered determination that the procedure is necessary. That said, the Article 6(1) question was not technically whether the applicant had a human right to state-paid gender reassignment surgery, but rather whether the insurer is justified in ignoring evidence or simply inventing facts to support its denial of an insurance claim for reimbursement of such surgery. In short, what the state may not do after Van Kück is to assume, absent sufficient evidence, that gender dysphoria reflects no more than a whim. It remains possible that the reimbursement could have been denied had credible testimony supported the insurer’s argument that non-surgical options would have availed the applicant’s purposes equally well. This, however, is the point at which an Article 8 analysis complicates the issue. The Strasbourg Court’s emphasis on the gravity of irreversible surgery and the fact that “the most intimate private life matters” were implicated46 seems to imply that gender reassignment surgery, when requested by the insured person, should always be considered medically “necessary.” Such a right would be a very specific and advanced one indeed, but it may be what the Court intended. It is interesting that the European jurisprudence has avoided deciding transsexual claims on Article 14 nondiscrimination grounds, although these were raised by both applicants in the foregoing cases. Minority group-discrimination analysis seems a more suitable human rights framework for transsexual claims, because it is more intuitive to draw a dichotomy

44 45 46

Id. ¶¶ 102, 111-12. Id. ¶ 110. Van Kück, 37 Eur. H.R. Rep. at 51 ¶ 82.

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between transgendered persons and non-transgendered persons as classes47 than it would be to assert a universal right to decide one’s own gender.48 But this intuition may be a cultural bias that is not based on any considered policy. The Strasbourg Court’s decision to eschew analysis under Article 14 indicates its intent to give individuals a preeminent role in deciding questions relating to their own gender identity as a matter of autonomy and privacy. Outside of Europe, only a few states have recognized a right of transsexuals to have their identification documents, including birth certificates, updated with a new name and sex after gender reassignment surgery. These include Canada, Israel, Japan, Malaysia (since 2006, but for non-Muslims only), New Zealand, North Korea, the Philippines, Singapore, South Africa, South Korea, and parts of Australia, the United States, and the People’s Republic of China.49 Very few states prohibit discrimination based on transsexual status50 or allow post-operative transsexuals to marry persons of their 47 48

49

50

The exception is intersex persons. How the distinction is drawn may, of course, be subject to debate, but this question is easily encompassed in discrimination analysis. Whether pre-operative transsexuals should belong to the same class as post-operative transsexuals, for example, can be resolved with reference to the social discrimination that both equally suffer. See Law Concerning Special Cases in Handling Gender for People with Gender Identity Disorder (GID), Law No. 111 of 2003, reprinted in Laura H. Norton, Note, Neutering the Transgendered: Human Rights and Japan’s Law No. 111, 7 Geo. J. Gender & L. 187, apps. A & B (2006) (Japan); Robyn Emerton, Neither Here nor There: The Current Status of Transsexual and Other Transgender Persons Under Hong Kong Law, 34 Hong Kong L.J. 245, 246-47 (2004); Non-Muslims Benefit from Landmark Ruling, New Straits Times, June 19, 2006, 2006 WLNR 10547693 (Malaysia); Park Yoon-Bae, Legal Framework for Transsexuals, Korea Times, June 29, 2006, at 2006 WLNR 11294607 (North Korea); Human Rights Watch, Press Release, South Korea: Rights Bill Excludes Many, Nov. 5, 2007, at http://hrw.org; see also Emerton, supra note 49, at 269-70 (discussing Australian cases in which post-operative transsexuals were treated as having their new gender). Although it does not make the information easily available, the U.S. federal government does recognize gender changes for purposes of passports and other documents and, as of 2009, at least fifteen states permit the amendment of official documents, see Robert E. Rains, Legal Recognition of Gender Change for Transsexual Persons in the United Kingdom: The Human Rights Act 1998 and “Compatibility” with European Human Rights Law, 33 Ga. J. Int’l & Comp. L. 333, 404 (2005), and thirteen plus the District of Columbia ban private sector discrimination based on gender identity, see Neil Dishman, The Expanding Rights of Transsexuals in the Workplace, 21 The Labor Lawyer (ABA) 121 (2005); Katie Koch & Richard Bales, Transgender Employment Discrimination, 17 UCLA Women’s L.J. 243 (2008); Keith Ecker, Out in the Office, Inside Couns., May 2008, at 47. The Special Administrative Region of Hong Kong permits post-operative transsexuals to update their identity cards, passports, and education certificates, and to register their change of names, but it does not permit amendment of birth certificates, which are treated as a historical record. Emerton, supra, at 252-53, 256-57. It appears unlikely that they can marry persons of the same sex as their own birth sex. See id. at 263-64. These include South Africa, most of Australia, and São Paulo, Brazil. In the United States, most, but not all, jurisdictions consider discrimination based on gender identity to be

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

own birth sex. These include Canada, New Zealand, Taiwan, the People’s Republic of China, Singapore, South Korea, some regions of Australia, and a few U.S. states.51 Despite some successes, transgendered persons face discrimination on a global level to a degree at least equivalent to that suffered by homosexuals and bisexuals. State-sponsored and state-tolerated discrimination against transsexuals remains the rule rather than the exception.52 In some countries, transsexuals are denied basic rights by being treated as homosexuals (with its attendant legal disadvantages) rather than belonging to a new gender even after reassignment surgery.53 Even in Japan, which in 2003 enacted a law permitting the amendment of civil status documents by post-operative transsexuals, an exception was made for any transsexual who had reproduced, due to concerns that a sex change operation might “shock” the transsexual’s children.54 While the concern for the welfare of the children is of course

51

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sex discrimination prohibited by federal (Title VII of the 1964 Civil Rights Act) or state law. See, e.g., Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006); Blozis v. Mike Raisor Ford, Inc., 896 F. Supp. 805 (N.D. Ind. 1995); Maffei v. Kolaeton Indus., Inc., 164 Misc.2d 547, 626 N.Y.S.2d 391 (N.Y. Sup. Ct. 1995); Quinn v. Nassau County Police Dep’t, 53 F. Supp. 2d 347 (E.D.N.Y. 1999); Rentos v. Oce-Office Sys., 1996 WL 737215, 72 Fair Empl. Prac. Cas. (BNA) 1717 (S.D.N.Y., Dec 24, 1996). But see Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1084-85 (7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) (discrimination based on transsexuality held not to constitute sex discrimination). See Emerton, supra note 49, at 266; In re Kevin, (2001) 28 Fam. L.R. 158 (Austl.); Attorney-General v. Otahuhu Family Ct., [1995] 1 N.Z.L.R. 603 (H.C.). Reports that Singapore allowed transsexuals to marry persons of their birth sex have been superseded by judicial rejection of such marriages. See Meredith Weiss, Who Sets Social Policy in Metropolis? Economic Positioning and Social Reform in Singapore, 27 New Poli. Sci. 267, 279 & n.82 (2005). Among the handful of U.S. cases approving post-operative transsexual marriage, see, for example, M.T. v. J.T., 355 A.2d 204 (Super. Ct. N.J. App. Div.), cert. denied, 364 A.2d 1076 (N.J. 1976). Most states, however, refuse to recognize such marriages. See, e.g., Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2004); In re Marriage of Simmons, 825 N.E.2d 303 (Ill. Ct. App. 2005); In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002); In re A Marriage License for Nash, Nos.2002-T-0149, 2002-T-0179, 2003 WL 23097095 (Ohio Ct. App. Dec. 31, 2003); Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999). See, e.g., Human Rights Watch, News Release: Guyana: Stop Dress Code Arrests, Mar. 5, 2009; Human Rights Watch, News Release: Turkey: Court Shows Bias, Dissolves Lambda Istanbul, June 1, 2008; Human Rights Watch, News Release: Kuwait: Halt Dress-Code Crackdown, Mar. 30, 2008; Human Rights Watch, News Release: Guatemala: Transgender People Face Deadly Attacks, Feb. 20, 2006; Mauro Cabral & Paulo Viturro, Mauro Cabral & Paulo Viturro, (Trans)Sexual Citizenship in Contemporary Argentina, in Transgender Rights 262, 267 (Paisley Currah, Richard M. Juang & Shannon Price Minter eds., 2006); Trevor Chappell, Sad Face of Gay Lives, The Advertiser (Melbourne), June 21, 2000, at 30 (“Transgender people [in Australia] were twice as likely to have been bashed (21 per cent), compared to homosexual men (11 per cent) and homosexual women (6 per cent).”). E.g., Hiroko Tabuchi, Japan’s Transsexuals Emerge from the Dark, L.A. Times, June 11, 2006, at A34. See Norton, supra note 49, at 202 & app. B.

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salutary, the Japanese policy illustrates the stigma that even liberal states continue to attach to transgenderism. II. Special Challenges of Gender Identity Claims in International Human Rights Law The CoE Assembly’s and EC Parliament’s calls for equal rights for transgendered persons preceded by several years similar calls for the recognition of a right to same-sex marriage or its equivalent for homosexuals. Within lesbian, gay, and bisexual advocacy organizations, however, the concept of transgender rights advocacy being grouped with homosexual rights advocacy has not been uniformly accepted.55 Some gay rights advocates see little common ground between their claims and those of transsexuals,56 but others see parallels.57 The human rights claims of homosexuals and bisexuals effectively boil down to the assertion that the state rarely, if ever, has a legitimate interest in discriminating against individuals based on their sexual orientation (that is, the sex of one’s chosen partner) that is sufficient to overcome those individuals’ well recognized rights to privacy, association, and family life. The force of this argument derives in part from the observation that sexual orientation is a fundamental aspect of personal identity. Freedom of intimate association is essential to every person’s autonomy. It is a precondition to the fulfillment of each person’s potential as a self-actualized human being. On the other hand, claims by homosexuals and bisexuals to equal rights, narrowly construed, do not imply that the state has the further obligation to treat persons claiming gender dysphoria as having a sex or gender different from their biological sex. Transgendered persons, unlike bisexuals and homosexuals, seek positive action by the state: not only acquiescence in disregarding their biological sex but affirmative conduct in the form of recognizing their self-perceived gender as their true sex or gender.58 In other words, they seek state acquiescence and assistance in their repudiation of a central gender convention of society. Notwithstanding this difference, the common ground between human rights claims made by homosexuals and transgendered persons is profound. If freedom of sexual orientation is critical to personal self-actualization, then freedom of sexual identity benefits from the a fortiori argument. One’s self-conception as a man or woman would appear to implicate one’s fundamental identity even more than one’s 55 56 57 58

See Shannon Price Minter, Do Transsexuals Dream of Gay Rights?, in Transgender Rights, supra note 52, at 141, 142, 146. E.g., Bruce Bawer, Confusion Reigns, The Advocate, Oct. 18, 1994, 140-41. E.g., Matt Coles, Making the Case for Transgender Inclusion, Southern Voice, Apr. 26, 2001. This cannot be reduced entirely to claims that the state should ignore biology and defer to the psychological self-perception of transsexuals on the matter of sex, because many transsexuals either have some biological characteristics typical of the other sex or seek (or have obtained) surgical assistance in emulating the biological characteristics of the other sex.

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

sexual attraction to a man or woman.59 Both homosexual and transgendered claims comport with the premise of international human rights law that distinctions based on sex or gender presumptively require a strong justification. If a person’s sex does not generally matter for regulatory purposes, then neither should a person’s gender identity or the sex of a person’s intimate partner. In the few kinds of modern legal regulation in which gender is thought to matter, only reproductive and parental rights issues demand serious consideration, because they implicate the rights of third parties, i.e., children.60 These observations have consequences for legal theories of transgender rights. Discrimination based on transgenderism and sexual orientation ultimately reflects the codification of social expectations about gender roles, enforced with the state’s civil, administrative, and criminal powers of coercion, as well as its powers of resource allocation, legitimation, and moral suasion. International human rights instruments—from the Universal Declaration to the Convention on the Elimination of All Forms of Discrimination Against Women and nearly every major treaty in between—testify to the formal acceptance among civilized states that only the most cogent justification may sustain a distinction based on sex or gender. Yet both official and social sex and gender discrimination remain exceedingly common, as the U.K.’s gender-differentiated retirement age in Richards illustrates. Persistent gender identity discrimination, in other words, is symptomatic of the fact that the legal and social relevance of sex and gender have not caught up to contemporary international human rights law in any but the most enlightened liberal democracies. III. The Yogyakarta Principles That said, the failure to recognize and adopt an attitude of sensitivity to the ways in which transgender rights claims threaten the ideological fabric that underlies state and social sexism may have the effect of reducing the chance of successful recognition of the most basic transgender rights. The most ambitious effort to persuade states to recognize transgender rights thus far is the adoption of the Yogyakarta Principles, published by a small group of concerned citizens and international lawyers in 2007.61 The Principles reject, at the most fundamental level, gender identity as a legitimate basis for state discrimination. Beyond the usual recitations of the rights to 59

60

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Similar reasoning has led some commentators to conclude that transgenderism is a more inclusive category than sexual orientation. See Kate Bornstein, Gender Outlaw 135 (1995); Phyllis Randolph Frye, Facing Discrimination, Organizing for Freedom: The Transgender Community, in Creating Change 451 (John D’Emilio et al. eds., 2000). There appears to be no empirical evidence that having transsexual parents has any negative effect on child sexual development, see Richard Green, Sexual Identity Conflict in Children and Adults 696-97 (1974), which leaves scant justification for state discrimination against transsexuals even in this sensitive area. Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2007), http://www.yogyakartaprinciples.org/principles_en.pdf.

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nondiscrimination and recognition of gender reassignment surgery, the Principles declare that no one should be “forced to undergo medical procedures, including sex reassignment surgery, sterilisation, or hormonal therapy, as a requirement for legal recognition of their gender identity.”62 The Principles claim, in effect, that a person has a human right to dictate his or her own gender by fiat and that the state is obligated to recognize and enforce each person’s decision in this regard. But the Principles do not stop at advocating state acceptance of gender identity choice. They also demand that states “[u]ndertake targeted programmes to provide social support for all persons experiencing gender transitioning or reassignment.”63 Moreover, the Principles would obligate states to “[p]rovide adequate access to … hormonal or other therapy as well as to gender-reassignment treatments where desired.”64 Such treatments presumably include gender reassignment surgery, which typically costs at least 15,000 and perhaps as much as 100,000 or more.65 There are two significant objections to the Yogyakarta demands relating to transgender rights that do not apply with equal force to human rights claims by homosexuals. The less consequential is that, although sex and gender may be legally irrelevant from a human rights perspective, sex remains biologically relevant in at least some respects. From the state’s perspective, for example, sex is a useful identifying factor, like height or hair and eye color.66 The technological mutability of these characteristics may diminish their utility as identifying criteria, but it does not render them useless. Sex, as a core biological human characteristic, remains one of the most useful for identification purposes. A state may not reasonably be asked to defer without qualification to individual choice of gender identity, especially given gender’s psychological mutability relative to biological immutability. Retained knowledge of a transgendered person’s birth sex may also be important for that person’s own health and safety in cases of medical treatments that differ according to the patient’s sex. Of course, the consequences that follow from these observations should not be especially troubling to transgendered persons and their advocates. The biological relevance of sex in no way undermines their claims to nondiscrimination and recognition of their new gender, so long as they do not claim a very aggressive human right to the deletion of their biological sex information from all state records. The main obstacle to the immediate and widespread acceptance of the Yogyakarta Principles is their apparent indifference to political reality. Were the Principles limited to treating gender as properly self-determined, they would merely reflect the unavoidable subjectivity of the concept of gender. But by referring to “legal recognition,” the Principles reveal a more ambitious agenda. States very rarely afford legal recognition of any kind to gender, but they commonly base legal consequences on 62 63 64 65

66

Id. at 11-12. Id. at 12. Id. at 16. See Laura-Claire Corson, Country’s Most Popular Gender-Reassignment Surgeon Has Been Through It, nwi.com, Mar. 4, 2007, available at http://nwi.com/articles/2007/03/04/features/lifestyles/docb14a70da1488819f862572910002fdc7.txt (last visited June 30, 2009). Cf. Cabral & Viturro, supra note 52, at 262, 263.

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

sex. Sex, unlike gender, is objective and biologically determined. A state that accepted the unrestricted obligation of legal recognition of an individual’s self-proclaimed sex might consider it to be committing itself to rendering nearly all sex-based distinctions in public policy doctrinally nugatory. This is not to paint this implication as inconsistent with international human rights theory. On the contrary, as already noted, transgender rights claims highlight the ubiquity of unjustifiable state discrimination based on sex. But in the near future the reality of global sex discrimination also dooms many of the gender identity principles proposed at Yogyakarta to aspirational status. Full gender self-determination without the precondition of surgical intervention will require a significant shift in values in most of the world. For economic and political reasons alike, seeking to impose a universal positive obligation to supply social and medical services for transsexual transition suffers from utopianism. Notwithstanding the CoE Assembly’s friendly position on the issue and official policies in a handful of states to provide gender reassignment surgery at public expense,67 even in those states whose publics are most accepting of transgenderism, only very small minorities consider that the state should bear the considerable expense of gender reassignment surgery.68 In the hierarchy of human rights principles that require state expenditures of resources, such claims must inevitably rank behind ensuring the rights to subsistence, free speech, privacy, due process of law, and other fundamental values. Not every human right can or should be accompanied by an obligation imposed on the state to create the conditions for the realization of the maximum benefit of the right for every person. Despite the commendable intentions of and reasoning underlying the Yogyakarta Principles, such extreme proposals risk undermining by association the more politically realistic claims accompanying them. Advocates of nondiscrimination based on sexual orientation do not face the same challenges. Their claims require relatively little positive state action beyond providing standard protection from private persecution and extending the recognition of the same rights now taken for granted by heterosexuals to homosexuals and bisexuals. Given that claims to equality of military service opportunities, marriage, child rearing rights, and other basic rights have not yet achieved widespread recognition for homosexuals,69 the recognition of a universal right to state-sponsored gender reassignment seems remote, regardless of how desirable it may be.

67

68 69

See, e.g., Juan Carlos Rodriguez, Transgender? You May Want to Move to Cuba or Brazil, The Advocate, July 31, 2008, at http://www.advocate.com (reporting that Cuba and Brazil have undertaken to provide publicly funded gender reassignment surgery “to qualified citizens”). See, e.g., Landén & Innala, supra note 6, at 379 (noting that only 15 of Swedes believe public funds should cover the expense of a sex change). See Fellmeth, supra note 4, pt. I.

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IV. Transgender Rights and Mainstream Gender Conventions 514

The obstacles faced by transgendered persons in achieving recognition of their human rights claims evidently has not foreclosed success in some regions of the world. In fact, in some states the recognition of transgender rights surpasses the recognition of comparable rights based on sexual orientation. Post-operative transsexuals have indeed obtained recognition of gender reassignment and even permission to marry someone of their birth sex in a few states that continue to criminalize homosexuality, such as Singapore, and in several that prohibit same-sex marriage, such as most of Western Europe. The most extreme example is Iran, where same-sex intercourse is punished by death, while transsexuals may obtain gender reassignment surgery and receive full recognition in their new gender.70 The recognition of transsexualism in violently homophobic societies presents a bizarre paradox that this part will try to explain. The distinction between the right to same-sex marriage among homosexuals and for a transsexual and someone of his or her birth sex is of course purely psychological. The former claim is based on the asserted irrelevance of the sex of the person’s intimate partner; the latter claim is based on the asserted relevance of his or her self-perceived gender in contradistinction to biological sex. The homosexual denies the universality of the heterosexual paradigm, while the transsexual may reaffirm it but deny its inevitable tie to biology. As noted above, both human rights claims can be encompassed by a more general contention that sex and gender in general should have no a priori effect on a person’s fundamental human rights to freedom from arbitrary discrimination, intimate association, and family life. How the claim to human rights is framed—as either the specific right to recognition of one’s self-perceived gender or the general right to be free from any discrimination based on sex, gender, or sexual orientation—determines how the claim fits into the accepted corpus of international human rights law. The claim to recognition of same-sex marriage among post-operative transsexuals has had more success thus far precisely because it reaffirms the heteronormative family law paradigm. Although most transsexuals are technically homosexuals, many do not consider themselves homosexuals; in fact, one (albeit dated) study of transsexual attitudes in the United States found that almost one-third of transsexuals were homophobic.71 The resolution of this apparent contradiction lies in the transsexuals’ self-image as belonging to a sex other than the one that their biological organism expresses.72 It is perhaps for this reason that, in studies comparing public perceptions of transsexuality with homosexuality, more subjects found homosexuality morally objectionable than those who said the same of transsexuality.73 70 71 72 73

See Raha Bahreini, From Perversion to Pathology: Discourses and Practices of Gender Policing in the Islamic Republic of Iran, 5 Muslim World J. Hum. Rts. 1 (2008). See A.J. Morgan, Psychotherapy for Transsexual Candidates Screened Out of Surgery, 7 Archives of Sexual Behavior 273 (1978). See, e.g., Green, supra note 60, at 51, 110. See, e.g., Leitenberg & Slavin, supra note 6, at 341.

27 Aaron Xavier Fellmeth, Choice of Gender Identity in International Human Rights Law

The paradox of transsexual acceptance in homophobic states, then, can be traced to its perceived reaffirmation of stereotyped gender roles. Transsexuals who seek surgical alteration of their anatomy and physiology do so precisely because of the self-perceived importance of sex and gender to their own identities. This is not to say that transgendered persons always seek to affirm gender stereotypes—some wish to break them down—but state authorities commonly frame the issue as a case of misalignment between sex and gender (so-called “gender dysphoria” or “gender identity disorder”74) that needs to be “corrected.” It is no coincidence that Iran, with one of the most institutionally and violently misogynistic governments in the world,75 accepts transsexuals on terms of full integration into the other gender while systematically murdering homosexuals. Transsexuals are perceived—again, not necessarily accurately—to be integratable into gender stereotypes in a way that homosexuals cannot be. The fact that Iran, for example, does not tolerate other forms of gender nonconformity, such as transvestitism, supports this interpretation.76 The human rights claims of transgendered persons cannot, however, necessarily be impressed into the service of homophobic states. Transgender human rights claims are founded on the observation that sex and gender may matter a great deal to the individual without giving rise to a state interest in regulating sex and gender. Transgendered persons claim autonomy rights, as reflected in the Article 8 ECHR claims of the Van Kück and Schlumpf applicants. Homosexuals are thought to challenge the traditional conception of masculinity and femininity either by denying generally that attraction to the other sex and the procreative instinct define what it is to be male or female, or, like some feminist theorists, by challenging the cultural concept of gender altogether as an artifice.77 Transgender claims coincide with homosexual claims in the larger sense that the state lacks any legitimate interest in interfering with or discriminating based on individual liberty to pursue gender roles of one’s own choosing.

74

75 76 77

See, e.g., American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders §§ 302.6, 302.85 (4th ed., text-revised 2000) (defining two kinds of gender identity disorder). On Iranian sex segregation and oppression, see, for example, Bahreini, supra note 70, at 5. See id. at 20. Most helpful for understanding how sexual minorities challenge gender constructs are the findings of research psychology. See generally, e.g., Alice H. Eagly, Anne E. Beall & Robert J. Sternberg, The Psychology of Gender (2005); Thomas Eckes & Hanns M. Trautner, The Developmental Social Psychology of Gender (2000); Shawn M. Burn, The Social Psychology of Gender (1995). There is also a rich if sometimes speculative queer and feminist theory literature available on the social construction of gender. See, e.g., Judith Butler, Undoing Gender (2004); Anne FaustoSterling, Sexing the Body (2000); Steven Angelides, Historicizing (Bi)Sexuality, 52 J. Homosexuality 125 (2006).

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V. Conclusion 516

It is difficult to imagine an ethical basis for a human right doctrine that acknowledges a significant state interest in preserving gender stereotypes. The reasons that so many states cling to gender stereotypes are mostly cultural and religious rather than moral. As I have discussed at length elsewhere, official objections to sexual minority rights always resort to religious rather than ethical justifications and so cannot be reconciled with a human rights system incorporating strong principles of freedom of conscience and religion.78 This point holds more broadly for the regulation of gender roles in society. While it could be argued that cultural norms exist independent of religious ideologies, the two prove difficult to separate. In any case, the preservation of traditional cultures does not qualify as a persuasive justification for systematically discriminating against women or for suppressing the deeply felt gender identity of any individual. Even to those who would inflate the importance of preserving traditional culture, the claim that transgendered persons, making up as small a percentage of any given population as they do, threaten longstanding cultural norms is unpersuasive. Gender bending among less than one percent of the population is unlikely to create a revolution in gender roles among the remainder. Any divergence between homosexual and bisexual human rights claims, on one hand, and transgender rights claims, on the other, at the “culture wars” level should not obscure their coexistence at the doctrinal level. Both groups seek the elevation of individual interests in privacy, autonomy, and self-determination above any perceived state interest in regulating gender roles. Perhaps more important to the development of international human rights doctrine is the overlap of both sets of claims with the quest for the elimination of global sex- and gender-based discrimination. Although some feminists have reviled male-to-female transsexuals for reaffirming gender stereotypes, the effect of transgendered persons on social stereotypes raises less consequential and pressing questions than does sex- and gender-based discrimination perpetrated or tolerated by the state. I recently learned that Michael Reisman is fond of using the phrase: Quod licet Iovi non licet bovi (“What is permitted to Jupiter is not permitted to cattle”). While the maxim expresses a general truism, in the realm of sex discrimination, quod licet bovi non licet Iovi.

78

See generally Fellmeth, supra note 4, at 911-19.

Chapter 28 The International Protection of Human Rights as an Element of World Order Jochen Abr. Frowein

I. Human Rights in Constitutional Law “Human rights: a tide in the affairs of men.” This title was used by Professor Paul Kauper at the University of Michigan Law School when he described in the 1960s the development of fundamental rights in the constitutions of many nations.1 Indeed, nobody can overlook this impressive development after the most terrible negation of human rights which happened during the Nazi rule in Germany and during the Second World War. The German constitution of 1949, the Basic Law, starts with a Bill of Rights. The Weimar constitution of 1919 had also a Bill of Rights but at the end of the constitution. The emphasis put on fundamental rights in the constitution of 1949 is made clear by its Article 1, stating the principle of human dignity and proclaiming that the fundamental rights are directly applicable in German law. But the most important development of the Basic Law in 1949 was the establishment of the Federal Constitutional Court with full jurisdiction to enforce fundamental rights not only against the legislature and the executive, but also against all other courts. The constitutional complaint procedure conferred by federal law on the Constitutional Court and later enshrined in the constitution was the crown of this development. A comparison with Austria can show how important that decision was. The Austrian Constitutional Court was the first important constitutional court in Europe established in 1920. But based on a very specific idea of the great author of the Austrian constitution, Hans Kelsen, the Constitutional Court in Austria is unable to correct judgments by ordinary courts because of a violation of fundamental rights. This means that the Austrian Constitutional Court is prevented from developing a case law comparable to that of the German Constitutional Court or the U.S. Supreme Court. Therefore, freedom of the press and freedom of expression against politicians

1

Paul Kauper, Human Rights: A Tide in the Affairs of Men, U. Mich. L. Quadrangle Notes, Spring 1969, at 11.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 517-525.

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have not gained the same importance in Austria as in other systems. This is due to the lack of jurisdiction of the constitutional court in these matters.2 The German development could easily be explained on the basis of the terrible German experiences. But the tide of human rights in the middle of the former century reached many other states. The real importance of the case law of the United States Supreme Court concerning fundamental rights started in the 1950s with the Warren Court. This Court had jurisdiction over these rights since the Bill of Rights had come into force in 1791 and the Supreme Court had confirmed twelve years later that it could declare laws to be unconstitutional and null and void. However, little pertinent case law existed throughout the nineteenth century and for a long time the Bill of Rights was not applicable vis-à-vis the authorities of the states. In the 1950s the Supreme Court started to develop important case law on fundamental rights guaranteeing the position of the individual in many important fields, also against the states.3 If one compares the situation in other states it is again only after the middle of the twentieth century that a real development towards the guarantee of fundamental rights started. France has of course introduced the idea of a formal bill of rights into European constitutional law shortly before the adoption of the United States Bill of Rights. However, throughout the nineteenth and first half of the twentieth-century courts could not enforce this Bill of Rights. It was seen as the duty of the legislature to find out what the Bill of Rights meant for the legal system. Only with the constitution of 1958 a first step was made in the direction of enforcing rules of the constitution also concerning legislation. However, the Conseil Constitutionnel was at first only entitled to review legislation as to the competence of parliament. After 1971, the Conseil Constitutionnel also controlled legislation as to the compatibility with the Bill of Rights enshrined in the French constitution. But the real development in France started with the internal application of the European Convention on Human Rights in the 1980s and 1990s. French courts now apply the guarantees of the European Convention on Human Rights when interpreting French legislation.4 A similar development can be seen in many other European countries. The United Kingdom was one of the last countries to turn to a real application of fundamental rights by courts. The Human Rights Act of 1998 introduced the possibility for British courts to apply the rules of the European Convention in British law. This has already had an enormous effect. The House of Lords declared British anti-terrorism legislation to be in contradiction with the guarantee of liberty in the European Conven-

2

3 4

This was discussed in the Report by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja adopted in Paris on Sept. 8, 2000, available at http://www.mpg.de/pdf/commentsStatements/berichtOesterreich_en.pdf, paras. 97-103. See, e.g., John E. Nowak & Ronald D. Rotunda, Constitutional Law 331 et seq. (4th ed. 1991). Olivier Jouanjan, Grundlage und Grundzüge staatlichen Verfassungsrechts: Frankreich, in 1 Handbuch Jus Publicum Europaeum 87, 145-46 (Armin von Bogdandy, Pedro Cruz Villalon & Peter M. Huber eds., 2007).

28 Jochen Abr. Frowein, The International Protection of Human Rights as an Element of World Order

tion on Human Rights.5 The House of Commons immediately deleted the relevant provisions from the terrorism legislation. After the collapse of the systems based on Marxist theory, which claimed to create human conditions without respecting the wishes of individual human beings, the tide reached the former Soviet empire. All the constitutions of central and eastern European states including the constitution of Russia have detailed bills of rights. Many of them are influenced by the text of the European Convention on Human Rights. Most of these states are already member states of this international treaty and are subject to the jurisdiction of the European Court of Human Rights in Strasbourg. The formal adoption of a bill of rights does not guarantee its application. However, one cannot underestimate the fact that these texts are now legal norms in the area of the former Soviet empire. In many of the central and eastern European states the fundamental rights became important parts of the legal order. The situation in Russia is still very ambivalent. One may hope that also there the importance of the protection of fundamental rights will be more and more recognized. Israel is one of the few countries in the world which has not yet a fully developed bill of rights. However, the Basic Law: Human Dignity and Freedom of 1992 protects a number of basic human rights. Although it has not full constitutional status the case law of the Israeli Supreme Court under the presidency of Aaron Barak has reached a level where it can be compared to bills of rights in constitutional systems.6 One may hope that in the future the system with the basic laws will be transformed into a full constitutional bill of rights. II. Human Rights in International Law Until the beginning of the twentieth century, public international law did not reach the individual human being at all. It was a legal order which applied only between states. The internal order of states was not a matter of international law. With the Charter of the United Nations and the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948 this changed radically. International law, again after the terrible experience before and during the Second World War, entered the area of the protection of the individual human being in its dignity and in its fundamental rights which had been recognized by important religious and philosophical thinkers throughout the history of mankind. The Universal Declaration of 1948 was not in itself a binding instrument of international law. It was adopted as a resolution of the General Assembly and therefore had the quality of a recommendation to states. But, of course, it was a recommendation of the highest order. This Declaration influenced the drafting of constitutions in many instances after 1948. The development of the German Bill of Rights was also influenced by the Declaration of 1948. The international development did not stop 5

6

A. v. Secretary of State for the Home Department [2004] UKHL 56; see Martin Loughlin, Grundstrukturen staatlichen Verfassungsrechts: Großbritannien, in 1 Handbuch Jus Publicum Europaeum, supra note 4, at 262. See, e.g., United Mizrahi Bank Ltd. v. Migdal Village, [1995] IsrSC 49(4) 195 (Barak, J.).

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there but a long drafting history for the two Covenants adopted in 1966 started. The International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights were adopted and entered into force in 1976. They have been ratified by a very high number of states. The Covenant on Civil and Political Rights has been ratified by 165 states, the one on Economic, Social and Cultural Rights by 160 states.7 Already long before the Covenants were drafted, Europe, on the basis of the Universal Declaration, adopted its own European Bill of Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. So far the European Convention on Human Rights is the only international bill of rights which, because of the case law developed by the European Commission of Human Rights and the European Court of Human Rights can in many respects be compared to constitutional bills of rights. After a long period in the 1950s and 1960s when the case law of the European Commission and Court of Human Rights was rather unimportant a new period started in the 1970s. From about 1975 we find a growing number of judgments of the European Court of Human Rights which interpreted the Convention and influenced the national legal orders in a rather important manner.8 Judgments rendered by the European Court of Human Rights are binding for the state concerned. A special procedure of supervision for the execution of the judgments exists with the Committee of Ministers of the Council of Europe. One may say that until now there are almost no cases in western Europe but also in most of the new states of central and eastern Europe where the judgments have not been observed. The situation with Russia, with Ukraine, but also with Turkey is, unfortunately, different. The situation of Russia is really an exception to the whole system laid down in the Convention. Turkey has been a member state of the Convention since fifty years. However, there is no doubt that the Turkish internal system did not comply with the European Convention on Human Rights in very important respects. It took a long time until Turkey recognized the right to individual application. During the last ten years a high number of cases concerning Turkey were decided by the European Court of Human Rights. The judgments had an effect in Turkey. The individuals received compensation or legislation was amended. However, it is still unfortunately true that there are many areas where the Turkish system does not comply with Convention law. If one tries to analyze in what areas the European Convention on Human Rights has influenced the legal system of member states the following areas may be mentioned. A high number of cases always concerned the guarantee of personal liberty in Article 5 and the due process clause in Article 6 concerning court proceedings. Judgments by the European Court of Human Rights have had the effect that judicial remedies in member states had to be strengthened or newly introduced. Judicial control of decisions to deprive people of their liberty played an important role. Fairness of proceedings before criminal courts was an issue frequently dealt with by the 7 8

United Nations Treaty Collection, Status of Treaties, available at http://treaties.un.org/ Pages/Participation Status.aspx (last accessed Nov. 28, 2009). See Jochen A. Frowein & Wolfgang Peukert, EMRK-Kommentar (3rd ed. 2009).

28 Jochen Abr. Frowein, The International Protection of Human Rights as an Element of World Order

Convention organs. The notion of equality of arms of the parties introduced also into criminal proceedings was a new element in many criminal law systems. At the beginning, the principle that the defense has the same rights as the prosecution to test the evidence—in particular, to interrogate witnesses—was not at all accepted in all systems. Freedom of expression and freedom of the press is another area where the case law of the European Court of Human Rights has had considerable effect in member states. The notion that it is the task of the press to be a watchdog concerning political and public interest matters has found its way into the national legal systems. Very similar to the case law of national constitutional courts, the European Court of Human Rights has stressed that politicians cannot block criticism by the use of libel proceedings. This was indeed a problem in several of the European states. If one considers today that the journalist Lingens in Austria was convicted for calling political decisions of the Austrian Federal Chancellor to be immoral in the political sense, undignified and opportunistic one can only be surprised. This was the Lingens case which opened a whole series of important decisions on that matter.9 In the new Convention countries these principles are now being introduced. They are of course part of the very foundation of a democratic and free system. The right to privacy guaranteed in Article 8 of the Convention has been an area where important developments have taken place. Secret surveillance of telephone conversations in the United Kingdom had no legal basis in proper legislation at all. Commission and Court found a violation of the rule according to which an interference with private life must be provided for by law.10 But respect of privacy means much more. The application of the criminal law against homosexual behavior between adult males was seen as a violation of that article.11 Legislation was changed in many European countries. The tragic situation of transsexuals was a matter of Court decisions. Here the Court was much slower than the Commission. Transsexuals are tragic people with a contradiction between their mental identity and their physical appearance. In all advanced medical systems these people can, under very strict conditions, undergo operations to bring their physical identity as much as possible in line with their mental identity. But how do the legal systems react? In many legal systems these people were at first not recognized to have become a member of the other sex after the operation. This led of course again to tragic situations for them. A German woman explained in Strasbourg what happened when she travelled with her Volkswagen from West-Berlin to the Federal Republic and entered the GDR. The European Commission of Human Rights, already in 1985, confirmed a right of these people to have their new sexual identity recognized in their personal papers.12 It took the Court seventeen years to fully reach the same result.13 But it is a good example 9 10 11 12 13

Lingens v. Austria, Judgment of July 8, 1986, Series A No. 103. Malone v. U.K., Judgment of Aug. 2, 1984, Series A No. 82. Dudgeon v. U.K., Judgment of Oct. 22, 1981, Series A No. 45. Rees v. U.K., Judgment of October 17, 1986, Series A No. 106 (1986), at 24 et seq. Christine Goodwin v. United Kingdom, Judgment of July 11, 2002, Series 2002-VI.

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to what extent the case law of the European Court of Human Rights protects human dignity in the most fundamental sense. What was also of great importance throughout Europe was the recognition of the principle of proportionality for interferences with fundamental rights. This principle was first developed in German administrative law and is now part of constitutional law in many countries and of international human rights law. It has been applied in many cases by the European Court of Human Rights when discussing the specific restrictive clauses in paragraphs 2 of Articles 8-11. According to these Articles interferences must be necessary in a democratic society. Necessary, as the Court has rightly held, means proportionate. III. The Issue of Torture All international instruments protecting human rights prohibit torture without any exception in absolute terms. This does of course not mean that torture has disappeared. It is present in many parts of the world. A new phenomenon concerning torture has appeared in recent years. States which were known for their respect for human and fundamental rights have accepted torture or similar methods to combat terrorism or to fight similar dangers. It is established that torture has taken place to a great extent in prisons under U.S. control in Iraq and Afghanistan. But the situation in Guantánamo, according to reliable reports, has also been characterized by a practice of torture. This is frightening.14 There is probably no State in the world with greater experience in this matter than Israel. Must the prohibition of torture also be respected where there is a real possibility to save many lives if torture is being applied and specific information is given by the person under torture? The ticking bomb example is frequently quoted and has attracted great attention. Several colleagues in Germany have come to the conclusion that torture under those circumstances can be justified. The same development can be seen in U.S. academia. However, a civilized legal system can never admit torture as being justified. Torture denies human dignity in the most fundamental sense. It is never completely clear that a person being tortured is really capable of giving the information sought. The judgment by the Israeli Supreme Court in which it was stated that only the Knesset could, by express authorization of the competent services, justify torture is not in line with international law.15 But under the specific circumstances it was probably the best way to enforce the international legal system. Knesset did not give that authorization and will in all probability never give such an authorization. If under the specific circumstances of Israel such an authorization cannot be seen as justified in a democratic system it supports the view that you can never justify torture. There was a recent case in Germany where the police threatened somebody with torture who had abducted a young child and had asked for ransom. The intention of the police was to save the life of the child. The child had already been murdered at 14 15

Mark Danner, Torture and Truth. America, Abu Ghraib, and the War on Terror (2004). The Public Committee against Torture in Israel v. Israel, HCJ 769/02 (Dec. 11, 2005).

28 Jochen Abr. Frowein, The International Protection of Human Rights as an Element of World Order

the time when the police threatened to apply torture. Under this threat the person admitted having murdered the child and showed the police the place where the body was to be found. The police officers were convicted but not sentenced. The courts found that they had committed a criminal act but did not find it necessary to sentence them which is possible under German criminal law in exceptional cases. This is the correct answer. The case also shows that even with the best of intentions torture will frequently be applied without any chance to get the result desired. The life of the child could no longer be saved. The European Court of Human Rights confirmed the German judgments and found that the applicant was no longer victim as to the threat and his trial was fair. It confirmed the violation of Article 3 already established by the German courts.16 IV. Enforcement at the Worldwide Level The systems of enforcement of human rights at the worldwide level are not to be compared with the ones existing in some regional systems, in particular in the European system. However, one should not underestimate the influence of the case law developed by the Committee under the International Covenant for Civil and Political Rights. The dialogue developed with states through the reporting system but also the case law concerning individual applications has had an influence on the behavior of states. The time has long passed when pressure being brought on states to conform to human rights standards could be seen as an intervention into the internal matters of that state. Indeed, a dialogue on performance in this matter takes place in many fora. Of particular importance in that context has been the practice of the European Union to conclude economic treaties with African, Asian and Pacific states which lay down human rights standards and justify the suspension of the treaty system if the standards are not being complied with. Research has shown that this has had important consequences in a number of states. Interestingly enough, African partners, after a general hesitation at first, have come to recognize that system as being in their own interest to overcome the danger of dictatorial systems. There have also been cases where states have reacted with formal reprisals to human rights violations. Probably the most interesting example in recent years has been the formal reprisal included in a Regulation of the Council of the European Community of September 7, 1998 for suspending landing rights in the European Community of the Yugoslav Airline because of the situation in Kosovo.17 This was before the armed intervention of NATO in Kosovo. The European Community suspended landing rights because of the human rights violations in Kosovo determined by the Security Council. This example shows that States, under very specific circumstances, may use reprisals against other states for not respecting fundamental rights in a gross and persistent pattern.18 16 17 18

Gäfgen v. Germany, 22978/05, Grand Chamber Judgment, June 1, 2010. Regulation EC 1901/98 of September 7, 1998 as amended by Regulation EC 214/99. For more detail, see Jochen A. Frowein, Obligations Erga Omnes, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2008), available

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V. The Use of Force 524

The most difficult question arises as to the possibility to use military force under extreme circumstances to save the lives of innocent people. Assume the situation of genocide as we have seen it in Rwanda or in parts of the former Yugoslav Republic, in particular in Srebrenica. Under which circumstances may military force be used to save people under such circumstances? Where the Security Council is willing to act it can act. The interpretation of the threat to international peace and security as it has developed since the collapse of the communist system shows a clear agreement that genocide and similar situations can trigger Chapter VII measures of the Security Council. The Security Council can authorize military force to be used against states or entities committing or about to commit genocide.19 The tragic situation is that in Srebrenica the Security Council had acted but the implementation was flawed and thousands of Bosnian men were killed in the most horrifying manner.20 This killing resembled killings during the Holocaust. In Kosovo, the Security Council had determined that a threat to peace and security existed but had not authorized the use of military force. Nevertheless, military force was used on the basis of a decision by NATO. Can that be justified? We are confronted with an absolute dilemma. The international system is built on the complete prohibition on the use of force. It is also built on the idea that the prohibition of genocide and of similar acts is a fundamental rule of the system. Can the international community remain passive in the presence of a developing genocide or not? A rule of necessity limited to very exceptional circumstances, where the Security Council does not act, can probably justify state action and in particular combined state action in an international organization to use military force to stop the genocide.21 The requirements for the justification of such an action must be clearly shown to the international community. It must be clear that the military action is proportionate to the situation and can save life to a great extent. But where this is the case, the prohibition of the use of force cannot have a higher value than the fundamental rule not to admit genocide, the most terrible crime threatening the life of a people.22

19 20 21

22

at http://www.mpepil.com/ (last accessed Nov. 28, 2009); and Christian J. Tams, Enforcing Obligations Erga Omnes in International Law (2005). See Jochen Abr. Frowein & Nico Krisch, Article 39, in 1 The Charter of the United Nations. A Commentary 724-25 (Bruno Simma ed., 2002). Annette Simon, UN-Schutzzonen—Ein Schutzinstrument für verfolgte Personen? (2005). Jochen Abr. Frowein, Der Schutz des Menschen ist zentral. Der Krieg in Kosovo und die völkerrechtliche Regelung der Gewaltanwendung, Neue Zürcher Zeitung, 17./18. Juli 1999, at 61-62, reprinted in Jochen Abr. Frowein, Völkerrecht—Menschenrechte—Verfassungsfragen Deutschlands und Europas. Ausgewählte Schriften 165 (Matthias Hartwig et al. eds., 2004). See W. Michael Reisman et al., International Law in Contemporary Perspective 1078-91 (2004).

28 Jochen Abr. Frowein, The International Protection of Human Rights as an Element of World Order

VI. Conclusion International law, in the second half of the twentieth century, after tragic experiences, has come to give the individual human being a proper place in the legal system.23 The individual human being and protection of its dignity is the ultimate aim of the international legal order as well as of the national legal systems. This is particularly true for what we call the elementary human rights, the right to life, the freedom from torture, the freedom from arbitrary arrest. It is also true for the basic economic and social rights, in particular, the right to food and the right to a healthy environment. But we must recognize that the methods to secure these latter rights are different from the ones concerning the elementary rights mentioned before. One must also recognize that in different cultures different views exist as to some aspects of human and fundamental rights. However, one should be very sceptical as to admit a relativity of fundamental rights in general. Ask those who are the victims of human rights violations and you will find out that they will not be willing to accept cultural differences as justifications. Therefore, it is one of the noblest tasks of lawyers throughout the world to strengthen human rights as an element of world order.

23

See Christian Tomuschat, Human Rights. Between Idealism and Realism (2003).

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Chapter 29 Toward Minimum Standards for Regional Human Rights Systems Christof Heyns Magnus Killander*

I. Introduction Human rights law, on the domestic level, entails the regulation by a particular state of the human rights practices within its jurisdiction. It is a system of self-regulation. Under international human rights law, these domestic practices are subjected to the collective supervision of a number of states through the institutions they have established. This can be done in various ways—through the global or United Nations system on the one hand, or through smaller groups of states on the regional (and sub-regional) level, on the other. The different international human rights systems often overlap as states may be subjected to monitoring at the global as well as the regional levels by inter-governmental organizations (IGOs).1 It is also possible that the same state may be subjected to human rights monitoring by different regional systems, or regional as well as subregional systems. The growing proliferation of systems brings the issue of their coherence or unity to the fore. The Universal Declaration of Human Rights is the most ambitious attempt yet to give practical effect to the idea of the universality of human rights. The global system for the protection of human rights is largely an extension of the post-war project to *

1

We wish to thank Jeremy McBride and Christina Cerna for their comments on an earlier draft of this contribution, as well as discussions in the context of a U.N. consultation, where the idea of common features or minimum standards for regional systems was explored. Erika de Wet and Frans Viljoen also provided valuable comments. As always, the responsibility for what is being said here is our own. The term “regional IGO” usually refers to a continental IGO such as the Organization of American States, the Council of Europe and the African Union, discussed below. In the rest of this chapter the term is also used for both sub-regional and multi-regional IGOs. Sub-regional IGOs are IGOs which do not cover the whole of a continent, for example the European Union or the East African Community. Multi-regional IGOs on the other hand have members on more than one continent, whether based on geography (for example, the Organization of the Black Sea Economic Cooperation), historical links (for example, the Commonwealth), ethnicity (for example, the League of Arab States) or religion (for example, Organization of the Islamic Conference).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 527-558.

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elaborate a single set of international norms by which domestic human rights practices may be adjudicated. Regional human rights systems, as a part of the international supervisory system, share to some extent the same origin as the United Nations, as the Inter-American and European systems which were also largely established in response to the Second World War. In recent years there has been a significant growth of regional initiatives, and regional human rights law today forms a significant part of international human rights law. In addition to the three main regional human rights systems in place today in the Americas, Europe and Africa, which are constantly growing and evolving, there is a plethora of human rights initiatives at various levels of development in many parts of the world today. The question arises whether global and regional (and sub-regional) systems for international human rights monitoring strengthen, or weaken, each other. One possible view is that regional systems predominantly play a complementary role to the global system—a manifestation of the adage “think globally and act regionally.” Regional mechanisms are simply more localized agents of the global human rights project. The founding documents of the European system for the protection of human rights certainly set itself the task of making the Universal Declaration a reality in Europe. Another approach is to emphasize the fact that these two levels of international protection can be at odds with one another, and that regional systems have the potential to detract from the universalist aspirations of the global system by posing different and indeed lower standards of protection. Indeed, as Karel Vasak has pointed out, for a long time regionalism in the field of human rights (as exemplified by the European and Inter-American systems) was not popular at the United Nations. It was to some extent seen as a breakaway movement that threatened the universality of human rights. A new approach was followed only when the International Covenants had entered into force, and a more confident United Nations started endorsing the idea of regionalism in respect of human rights.2 In 1977 the General Assembly appealed to states in areas where regional mechanisms did not yet exist, to establish such machinery, and has subsequently largely followed this line of thinking as its official approach.3 A few years later the African regional system was established, and more recently the U.N. supported the establishment of a regional human rights system in Asia. Concerns that regional systems could pose lower standards of protection than its more inclusive counterpart, or that (sometimes overlapping) regional systems would pose different standards, however, remain and are becoming more relevant because of the growth in the numbers of the systems. There is a danger that states who wish to escape global scrutiny could submit themselves to less exacting regional human rights monitoring and then claim that they should not be subjected to further international supervision. Regional human rights mechanisms, in other words, could become a shield against global scrutiny, rather than a platform for human rights pro2 3

See 2 The International Dimension of Human Rights 451 (Karel Vasak & Philip Alston eds., 1982). See G.A. Res 32/127, U.N. Doc. A/RES/32/127 (Dec. 16, 1977).

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

tection. In the same way that the issue has been raised in respect of national human rights institutions, it may be asked whether specific regional human rights systems could in reality not become human rights “pretenders” rather than human rights “protectors.”4 In a post-modern world, where globalization meets diversity head-on, it is not surprising that regionalism has become a valuable feature of international human rights law. Regionalism offers room for local resonance and consequently ownership in respect of the norms espoused as well as the enforcement process that the global system cannot hope to do. It is not without significance that the idea of an “Asian exception” to human rights emerged in a region at the time without its own human rights system, but an equivalent concept did not gain currency on the same level in Africa, where a regional mechanism has existed for a considerable time. In short, on a balance regional mechanisms continue to make sense within the broader global human rights project, but given the expansion of regionalism in the field of human rights, it is important not to be blind to the fact that regionalism can also be used to turn the human rights project against itself. The issue whether regionalism in the field of human rights is a shield, or a platform, has been raised a number of times in the recent past. For example, commentators have asked whether the Arab Charter on Human Rights, especially in the 1994 version but also in the revised 2004 format, which entered into force in 2008, does not pose lower human rights standards than those that are generally accepted internationally and consequently has the potential to undermine the universal system.5 In what could be seen as almost an explicit exposition—and embrace—of the “shield” function of regional human rights institutions, an earlier draft of the Terms of Reference of the ASEAN Human Rights Body (as it was then called) purported to require the members of this body to “[d]efend ASEAN in the case of external interference in the domestic affairs of ASEAN member states relating to human rights.”6 In February 2009 the Assembly of the African Union (AU) initiated a study to examine the implications of the African Court on Human and Peoples’ Rights being empowered to try international crimes.7 This decision was taken in the context of the AU’s opposition to the indictment of the President al Bashir of Sudan by the International Criminal Court (ICC).8 The implications are clear: Regional solutions will be found if necessary to pre-empt and prevent unwelcome international interference. 4 5 6

7 8

Cf. Human Rights Watch, Protectors or Pretenders? Government Human Rights Commissions in Africa (2001). See Statement by UN High Commissioner for Human Rights on the entry into force of the Arab Charter on Human Rights, U.N. Press Release, Jan. 30, 2008. Draft Terms of Reference of [an ASEAN Human Rights Body], para. 5.10 (Jan. 15, 2009). www.scribd.com/doc/12882981/Draft-of-ASEAN-Human-Right-Body (accessed Oct. 9, 2009). This provision was not included in the final Terms of Reference, see below. See Assembly/AU/Dec.213 (XII). It remains to be seen whether African states, 30 of which have ratified the ICC Statute, will go ahead and establish a regional alternative that could potentially be used to shield perpetrators of international crimes from global accountability.

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From the point of view of a realistic assessment of the driving forces behind the conduct of states, it is inevitable that all regional human rights mechanisms will to a greater or a lesser extent play a dual role: They will partly serve as a platform for the realization of the international understanding of human rights, and partly serve as a shield against global scrutiny, behind which their own conception of human rights can be realized—or human rights can be flouted. The European system, for example, was hugely successful in pre-emptively seizing the opportunity to define human rights norms in the terms that work best from a European perspective. There is no such thing as complete “innocence” or “neutrality”—or for that matter absolute notions or right or wrong—in this field. But the use of human rights mechanisms as a shield from behind which the very notion of human rights can be undermined has become a real possibility, and unless the global human rights project is to be abandoned, the question has to be asked whether there are indications that regional human rights mechanisms with certain features rather than others will lean more to the side of being “protectors” or “pretenders.” This contribution first sets out to establish some of the common features of the structural make-up of the three established regional human rights systems. Based on the findings of this inquiry we suggest some Proposed Guidelines that could be applied to regional IGOs and their human rights mechanisms if they claim to be protectors rather than pretenders. We then apply the Guidelines to the Terms of Reference of the recently established ASEAN Intergovernmental Commission on Human Rights and the Arab Charter on Human Rights, and explore developments in respect of some of the other regional human rights initiatives in the world today. While there is fertile ground for a comparison of the substantive norms espoused by the different regional systems, this study is largely confined to a comparison of the regional human rights mechanisms and their mandates. Due to considerations of space, the study focuses largely on the official and formal position, as opposed to a detailed investigation of actual impact. II. Common Features and Best Practices of the Three Established Regional Human Rights Systems In this section the following issues will be addressed in respect of the Inter-American, European and African human rights systems: (1) the role of human rights in the principles and objectives of the IGOs of which the human rights systems form part; (2) human rights and the membership criteria of these IGOs; (3) the relevant human rights instruments; (4) human rights supervisory bodies and their mandates; (5) criteria for appointment of members of supervisory bodies; (6) supervision of implementation of judgments; (7) complementarity between the regional and the global systems; and (8) available resources. The aim is to give a brief overview of the main components of the human rights machinery and practices of these regional bodies in order to identify the core characteristics of the existing regional systems.

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

A. The Organization of American States 1. Principles and Objectives The Charter of the Organization of American States (OAS) was adopted in 1948.9 In contrast to the other two regional systems, human rights do not form as integral a part of the purpose and principles of the OAS, as articulated in its Charter. Among the “essential purposes” of the OAS, as its Charter reads today, are the strengthening of peace and security, promotion and consolidation of representative democracy, “with due respect for the principle of nonintervention” and the eradication of extreme poverty.10 The Charter recognizes the Inter-American Commission on Human Rights as an organ of the OAS. 2. Membership Criteria One measure of the role played by human rights in an IGO is whether states need to meet certain human rights criteria to be—to become and to remain—members of that IGO. All 35 independent states of the Americas are members of OAS. According to the OAS Charter, the only requirement for a state to become a member is independence.11 However, Article 9, which was added to the Charter in 1992, relates to the possible loss of the privileges of membership: “A member of the Organization whose democratically constituted government has been overthrown by force may be suspended from the exercise of the right to participate” in the OAS organs. Article 9 was used for the first time when Honduras was suspended from the OAS following the coup of June 2009. However, according to the OAS suspension of the right to participate does not amount to expulsion and does not affect a state’s treaty obligations. The extra-ordinary session of the OAS General Assembly which suspended Honduras resolved: [t]o reaffirm that the Republic of Honduras must continue to fulfill its obligations as a member of the Organization, in particular with regard to human rights; and to urge the Inter-American Commission on Human Rights to continue to take all necessary measures to protect and defend human rights and fundamental freedoms in Honduras.12

9 10

11 12

Amended in 1967, 1985, 1992, and 1993. OAS Charter art. 2. While human rights are not mentioned as an essential purpose, the OAS Charter makes some references to human rights. According to Article 3(l) of the Charter, “[t]he American States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex.” Article 17 provides: “Each State has the right to develop its cultural, political, and economic life freely and naturally. In this free development, the State shall respect the rights of the individual and the principles of universal morality.” Chapter VII, dealing with “Integral development,” includes Article 45 dealing with the “just social order” including the right to work, participation, social security and legal aid. See id. art. 8. OAS Suspends Membership of Honduras, OAS Press Release, July 5, 2009, available at www.oas.org/OASpage/press_releases/press_release.asp?sCodigo=E-219/09 (accessed Sept. 29, 2009).

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This was the first suspension of an OAS member state since Cuba was suspended from participation in the OAS organs in 1962.13 3. Human Rights Instruments The American Declaration of the Rights and Duties of Man was adopted by the OAS in April 1948, some months before the Universal Declaration was adopted by the U.N. General Assembly. The American Convention on Human Rights was adopted in 1969 and entered into force in 1978. The OAS has adopted two protocols to the American Convention, dealing with economic, social and cultural rights, and the death penalty respectively.14 The OAS has also adopted other instruments of relevance to human rights.15 4. Supervisory Bodies and their Mandates The Inter-American Commission on Human Rights was established through a resolution of the OAS in 1959 and became operational in 1960. The mandate of the Commission, as a Convention body, is set out in the American Convention which also provided for the establishment of the Inter-American Court of Human Rights. The Court was established in 1979.

13

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The motivation for Cuba’s suspension had however not been a coup but the view that “the alignment of [a Marxist-Leninist] government with the communist bloc breaks the unity and solidarity of the hemisphere.” Resolution VI, Exclusion of the present government of Cuba from participation in the Inter-American system, Final Act of the Eighth Meeting of Consultation of Ministers of Foreign Affairs, Punta del Este, Uruguay, January 22-31, 1962, available at http://www.oas.org/columbus/docs/OEASerCII.8Eng.pdf (accessed June 11, 2009). This suspension remained in place until it was lifted by the OAS General Assembly on June 3, 2009. In the resolution lifting the suspension the General Assembly resolved that “the participation of the Republic of Cuba in the OAS will be the result of a process of dialogue initiated at the request of the Government of Cuba, and in accordance with the practices, purposes, and principles of the OAS.” AG/RES. 2438 (XXXIX-O/09), Resolution on Cuba, approved during the third plenary session held on June 3, 2009. In practice, Cuba thus remains suspended until the “dialogue” has taken place. Cuba has indicated that it does not intend to seek participation in the OAS. CNN. com/world, Cuba Rejects OAS Membership, Official Says, June 4, 2009, available at edition.cnn.com/2009/WORLD/americas/06/04/cuba.oas/index.html. Among the reasons for this may be that human rights issues could be raised as part of the “process of dialogue.” See Protocol to the American Convention on Human Rights in the Areas of Economic, Social and Cultural Rights (Protocol of San Salvador), adopted 17 November 1988 (entered into force Nov. 16, 1999); Protocol to the American Convention to Abolish the Death Penalty, adopted 8 June 1990 (entered into force Aug. 28, 1991). These include the Inter-American Convention to Prevent and Punish Torture, the InterAmerican Convention on Forced Disappearance of Persons, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities and the Inter-American Democratic Charter.

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One of the mandates of the Inter-American Commission is to undertake on-site visits which result in the publication of country reports on the human rights situation in the country under investigation. The Commission further has a number of thematic rapporteurships, similar to the special rapporteurs of the United Nations.16 The Inter-American Commission hears individual complaints alleging violations of the Convention or the American Declaration. Complaints are brought under the Convention with regard to the twenty-four states which have ratified the Convention and under the Declaration for the eleven states which have not ratified the American Convention.17 The Commission receives approximately 1200 petitions from or on behalf of individuals each year, but only a few cases reach the merits stage where the Commission decides whether rights set out in the Convention or Declaration have been violated.18 The Commission may adopt precautionary measures “in serious and urgent cases”19 and request the Court to adopt provisional measures “in cases of extreme gravity and urgency.”20 Inter-state complaints are also possible, but as is the case in the other systems, this is not often used. The Inter-American Court can hear contentious cases, referred to it by the Commission, against state parties to the American Convention which have recognized its jurisdiction and can also deliver advisory opinions. Individuals formally do not have the right to decide whether they want to take a case to the Court. However, the Rules of Procedure of the Commission now provides that if a state has not complied with its decision the Commission shall after consultation with the petitioner refer the case to the Court unless an absolute majority of the Commission members decide, through a reasoned decision, not to refer the case.21 In 2008 the Court handed down ten judgments on the merits in contentious cases. In addition the Court decided on eight applications for clarification of judgments and decided on twenty-six requests for provisional measures.22 It is clear from the above that the supervisory mechanisms of the Inter-American system have a strong promotional as well as a protective mandate. 5. Appointment and Criteria for Appointment of Members of the Supervisory Bodies One of the vital preconditions for the effectiveness of a regional system in protecting human rights is the independence and impartiality of the members of its supervisory 16

17 18 19 20 21 22

The rapporteurships deal with the rights of indigenous peoples, rights of women, rights of the child, rights of persons deprived of liberty, rights of afro-descendants and against racial discrimination, rights of migrant workers and their families. The Commission also has a unit for human rights defenders. The states which have not ratified the Convention include the United States, Canada and a number of states in the Caribbean. See Inter-American Commission on Human Rights, Annual Report 2008. Rules of Procedure of the Inter-American Commission art. 25. American Convention art. 63(2). See Rules of Procedure of the Inter-American Commission art. 44(1). See www.corteidh.or.cr/buscadores.cfm (accessed Aug. 26, 2009).

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bodies, who should be free from political or other influence. In practice, because the appointments are made by states, there is a constant tension between appointing free-thinking and pro-government candidates in all three systems under consideration here. The seven members of the Inter-American Commission are elected in their personal capacity by the OAS General Assembly from a list of candidates nominated by member states.23 The members are required to be “persons of high moral character and recognized competence in the field of human rights.”24 The procedure for election of the seven judges of the Court is essentially the same as for the Commission.25 The Convention determines that the judges shall be jurists of the highest moral authority and of recognized competence in the field of human rights, who possess the qualifications required for the exercise of the highest judicial functions in conformity with the law of the state of which they are nationals or of the state that proposes them as candidates.26

The independence of the two institutions is clearly a stated objective, and by and large this has also manifested itself in practice, although there have been individual cases of concern. 6. Supervision of Implementation of Judgments According to Article 65 of the American Convention, the Court shall inform the OAS General Assembly about non-compliance with its judgments. The Assembly has rarely taken action in this regard and it has been left to the Court itself to develop a system of supervising compliance with its judgments.27 In 2008 the Court issued forty-nine orders with regard to supervision of compliance with its judgments.28 7. Complementarity Where states have ratified U.N. human rights treaties in addition to the American Convention, the question arises whether individuals who have brought a complaint on one level can subsequently also take the same complaint to a supervisory body on the other level. Clearly there is a danger of conflicting jurisprudence should this happen, because one system is not hierarchically superior to the other in the same way that higher courts are superior to lower courts on the domestic level. The regional and global systems are concurrent or parallel systems, and a finding on one level does not erase a contrary finding on another level. 23 24 25 26 27 28

See American Convention art. 36. Id. art. 34. See id. art. 53. Id. art. 52. See Asociación por los Derechos Civiles, The Strengthening of the Inter-American Court of Human Rights, available at www.adc-sidh.org/ (accessed Oct. 9, 2009). See www.corteidh.or.cr/buscadores.cfm (accessed Aug. 26, 2009).

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The Inter-American Commission will not consider a communication that is “pending in another international proceeding of settlement” or is “substantially the same as one previously studied by … [an] international organization.”29 This means that the Inter-American Commission and Court will not consider a complaint that has served before a U.N. treaty body.30 While the U.N. human rights treaties generally also do not allow simultaneous consideration of cases serving before other international bodies, they do not contain provisions which prevent them from hearing cases that have been settled earlier on the regional level, leaving open the possibility of conflicting findings. 8. Resources One of the measures of how seriously the human rights aspects of its work are considered by an IGO is the resources allocated for this purpose. In recent times the Inter-American Commission has been allocated around US 3.5 million annually from the OAS budget and receives around US 3 million in contributions from donors. The Court has a budget of approximately US 1.5 million allocated by the OAS. The contribution to the Commission and Court makes up around 6 percent of the OAS budget.31 The Inter-American Commission has expressed concern over its financial situation.32 In 2008, the Commission had seventy staff members and the Court had twenty-one staff members.33 B. The Council of Europe 1. Principles and Objectives The Statute of the Council of Europe (CoE) was adopted in 1949. The purpose of the CoE is set out in Article 1 of the Statute: (a)

(b)

29 30 31

32 33 34

The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress. This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.34

American Convention arts. 46(1)(c), 47(d). The Inter-American Court will only hear a case which has already been considered by the Inter-American Commission. See American Convention art. 61(2). See Christof Heyns, David Padilla & Leo Zwaak, A Schematic Comparison of Regional Human Rights Systems, in International Human Rights Law in a Global Context 937 (Felipe Gomez Isa & Koen de Feyter eds., 2009). See Annual Report 2008, para. 127. See Heyns et al., supra note 31. Statute of the Council of Europe art. 1.

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Human rights concerns are at the heart of the work of the CoE and the main reason for its existence. However, it is clear that the CoE system faces many challenges including an increasing backlog of cases before the Court. The Court has in a sense become a victim of its own success. Some measures to make the system more effective have been implemented. However, the reforms foreseen under Protocol 14 were until recently stalled by Russia’s refusal to ratify this Protocol. It should be mentioned that the CoE is supplemented by other regional IGOs such as the Organization for Security and Cooperation in Europe (OSCE) and, mainly in the context of economic integration, by the European Union (EU).35 While their work in the area of human rights is largely complementary, their overlapping mandates also pose the risk of conflicting approaches being taken. 2. Membership Criteria In contrast to the other two regional systems, the CoE is very clear on the issue of membership: The human rights record of the state concerned is one of the key factors that determine whether a state may join the CoE, and it may also lead to its expulsion. This is given extra impetus, at least for some states, by the fact that membership of the CoE is in practice a precondition for membership of the EU. Article 3 of the CoE Statute provides: Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.36

Membership of CoE is by invitation only and requires that the state is willing and able to fulfill the obligations under Article 3.37 From ten member states in 1949, the membership of the CoE has sixty years later grown to forty-seven. The only states in Europe which are not members of the Council are Belarus, Kosovo and the Holy See.38 Many see the membership of Russia in the 35 36 37 38

The EU will be discussed further below. CoE Statute, supra note 34. See id. art. 4. Belarus applied for membership in 1993. In April 1993 the Committee of Ministers decided to consult the CoE Parliamentary Assembly with regard to the application. The Committee noted that “there is consensus among [the] members [of the CoE] in favour of the Republic of Belarus’s joining the Organisation as soon as the conditions laid down in the Statute, ie implementation of the principles of pluralist parliamentary democracy, respect for Human Rights and the Rule of Law, have been satisfied.” Council of Europe, Committee of Ministers, Resolution 93(9) on Belarus, adopted by the Committee of Ministers on 15 April 1993 at the 492nd meeting of the Ministers’ Deputies. The situation has not improved and the application of Belarus for membership is still pending. Other states have become members after showing that the situation has improved. For example Croatia applied for membership in September 1992 but was only admitted as a member of the CoE in October 1996.

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CoE as particularly problematic and its admittance to the CoE in 1996, almost four years after its initial application, was controversial.39 Russia has failed to fulfill many of the conditions set for its membership and it could even be argued that it is actively trying to undermine the CoE human rights system. Article 8 of the Statute provides that: Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

Article 8 has never been used to expel a member state of the CoE, though the Parliamentary Assembly of the CoE has suspended Greece (1967-1974), Turkey (1980-1984) and Russia (2000-2001) from participation in the Assembly. Following the military coup in 1967, Greece withdrew from the CoE in 1969. Greece was readmitted as a member after the fall of the military regime in 1974.40 The possibility of suspension or expulsion of a member state gives weight to the supervisory role of the Committee of Ministers in respect of the decisions of the European Court of Human Rights, as discussed below. 3. Human Rights Instruments One of the earliest actions taken by the CoE was in the field of human rights, with the adoption of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) on November 4, 1950. The Convention was developed when it was clear that the United Nations was hopelessly divided because of the Cold War and unable to make progress in terms of translating the Universal Declaration into a legally binding regime. According to the preamble of the European Convention, the European system was established “to take the first steps for the collective enforcement of certain rights stated in the Universal Declaration.” The stated objective is therefore that the regional system will serve as a mechanism to enforce global norms. The CoE has adopted a number of other treaties of relevance to human rights.41 The European human rights system has played a central role in defining human rights standards not only in the European context, but around the world as well. 39

40 41

Russia applied for membership in May 1992 and was admitted in February 1996. See Angelika Nußberger, The Reception Process in Russia and Ukraine, in A Europe of Rights 603 (Helen Keller & Alec Stone Sweet eds., 2008). Withdrawal, expulsion and suspension of a member state of the Council of Europe, www. ena.lu (accessed Sept. 29, 2009). These include the European Social Charter, the Framework Convention for the Protection of National Minorities, the European Charter for Regional and Minority Languages and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

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4. Supervisory Bodies and Their Mandates The European Convention established a system whereby an individual complainant alleging a violation of a right enshrined in the Convention, or another state party, could bring a case against a state party before the European Commission of Human Rights. The Commission served as a screening mechanism and could take the case to the European Court of Human Rights, as is the case in the Inter-American and African systems. From 1994 individual complainants themselves could refer cases to the Court with regard to states which had ratified Protocol 9 to the Convention. The Commission which, as opposed to its African and Inter-American counterparts, only had a mandate to consider complaints and could not engage in other forms of human rights monitoring, was abolished through Protocol 11 to the Convention which entered into force in 1998. The Commission and Court were replaced by a new permanent Court. Since then individuals in the forty-seven member states can access the Court directly. In 2008 the Court received 49,850 complete applications and delivered 1881 judgments. By the end of the year the Court had 97,300 cases pending of which almost half against three countries: Russia, Turkey and Romania. The Court may adopt interim measures.42 In 1999 the first CoE Commissioner for Human Rights was appointed. The Commissioner works through country visits, thematic recommendations, awareness raising and assistance to national human rights structures.43 Compliance with the European Social Charter is monitored by the European Committee of Social Rights. The Committee of Ministers of the CoE and the Parliamentary Assembly also play a role in the state reporting system which is the main method of monitoring compliance with the European Social Charter.44 The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides for an innovative monitoring system with preventative visits to places of detention.45 At the heart of the CoE system consequently is its protective mandate based on individual complaints, although this is supplemented by the promotional function of for example the Commissioner for Human Rights. 5. Appointment and Criteria for Appointment of Members of the Supervisory Bodies The number of judges of the European Court of Human Rights is equal to the number of states parties to the European Convention which, as noted above, is currently 47.46

42 43 44 45 46

See European Court of Human Rights, Rules of Court, rule 39 (July 2009). See http://www.coe.int/t/commissioner/Activities/mandate_en.asp (accessed Apr. 27, 2009). A system for collective complaints has been established under the Additional Protocol to the European Social Charter. The experience of this monitoring system inspired the drafting of the Optional Protocol to the U.N. Convention Against Torture. See European Convention art. 20.

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The judges of the Court are elected by the CoE Parliamentary Assembly from a list of three candidates nominated by the member state concerned.47 Article 21 of the European Convention sets out the following criteria for election to the Court: 1.

2. 3.

The judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. The judges shall sit on the Court in their individual capacity. During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office; all questions arising from the application of this paragraph shall be decided by the Court.

The inadequate gender balance of the Court has been an ongoing issue.48 6. Supervision of Implementation of Judgments According to Article 46(2) of the European Convention, the Court shall transmit its final judgment to the Committee of Ministers of the CoE “which shall supervise its execution.” The European system of supervision is undoubtedly the most effective of the three regional systems, and there is a high level of compliance, at least in respect of the payment of compensation, by member states. 7. Complementarity The Court will not consider a case which has “already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”49 Some member states of the Council of Europe have entered reservations to Article 5(2)(a) of the Optional Protocol to the ICCPR with the effect of excluding the competence of the Human Rights Committee where the same matter “has already been examined” under another procedure of international investigation or settlement, such as the European Human Rights Court.50 47 48

49 50

See European Convention art. 22. The CoE Parliamentary Assembly in 2004 decided that states must include women among the candidates they nominate. This provision led the Assembly to refuse to elect a new judge from Malta since it had supplied a list with only male candidates. In February 2008 the Grand Chamber of the European Court delivered an advisory opinion where it held that the Assembly’s position was too strict and would need to be revised to allow for exceptions when a state has taken “necessary and appropriate steps” to find qualified female candidates. Alastair Mowbray, The Consideration of Gender in the Process of Appointing Judges to the European Court of Human Rights, 8 Hum. Rts. L. Rev. 549 (2008). European Convention art. 35. Catherine Phuong, The Relationship Between the European Court of Human Rights and the Human Rights Committee: Has the “Same Matter” Already Been “Examined”?, 7 Hum. Rts. L. Rev. 385 (2007). In Correia de Matos v Portugal, the Human Rights Committee

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8. Resources The budget of the European Court is provided for under the general budget of the CoE. The allocation for the Court in 2008 was a massive 53.46 million Euros,51 around 25 percent of the CoE budget. At the end of 2008 the registry of the Court had 626 staff members. In terms of its case load but also its resources the European system is in a different league from the other two regional systems.52 C. The African Union 1. Principles and Objectives The Charter of the Organization of African Unity (OAU) was adopted in 1963. In one of the few references to human rights in the OAU Charter, it was stated that one of the purposes of the Organization was the promotion of “international co-operation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights,” suggesting a deference for global standards.53 However, little attention was given to the human rights situation within the OAU member states. Instead the focus was on achieving decolonization and an end to white minority rule in Southern Africa, which were some of the main human rights concerns at the time. The African Charter on Human and Peoples’ Rights was adopted in 1981. The Constitutive Act of the African Union (AU) was adopted by the OAU Assembly of Heads of State and Government in 2000 and entered into force in 2001. The AU replaced the OAU in 2002. The Constitutive Act (like other founding documents of AU structures) is replete with references to human rights and the objectives of the AU include to “promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.”54 2. Membership Criteria There are no human rights criteria for a state to become a member of the AU.55 However, “sanctions” can be adopted against a member state which “fails to comply with the decisions and policies of the Union.”56 Moreover, Article 30 of the Constitutive

51 52 53 54 55

56

considered a case where the European Court of Human Rights had found that there was no violation of Article 6(3)(c) of the European Convention corresponding to Article 14(3) (d) of the Covenant. The Committee found a violation of the right to defend oneself in person without making any reference to the judgment of the European Court. See European Court of Human Rights, Annual Report 2008, para. 38. See id. para. 33. See OAU Charter art. 2(e). Constitutive Act art. 3(h). All OAU members automatically became members of the AU upon acceding to the Constitutive Act (art. 27). The procedure for admission to membership of African states that were not members of the OAU (that is, Morocco, which left the OAU in 1984) is set out in art. 29 of the Constitutive Act. Constitutive Act art. 23(2).

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

Act determines that: “Governments that come to power through unconstitutional means shall no be allowed to participate in the activities of the Union.” The AU has in line with these provisions, in conjunction with the Declaration on Unconstitutional Changes of Government of 2000,57 suspended the participation of some member states where military coups or military-supported changes of government had taken place. Thus sanctions were imposed on Mauritania in February 2009 following the military coup of August 2008. The AU has however stayed clear of action where the legitimacy of elections have been questioned by independent observers.58 3. Human Rights Instruments The main human rights instrument of the African Union is the African Charter on Human and Peoples’ Rights (African Charter), adopted by the OAU Assembly in 1981. The Charter entered into force in 1986 and has been ratified by all 53 member states of the African Union. In addition to recognizing the vast majority of civil and political rights recognized internationally, the Charter also recognizes peoples’ rights, duties and some socio-economic rights.59 4. Supervisory Bodies and Their Mandates The African Commission monitors compliance with the African Charter through state reporting; complaints by states, individuals or NGOs; special rapporteurs and working groups. The Commission also adopts resolutions interpreting provisions of the Charter, similar to the general comments of the U.N. human rights treaty bodies. The Commission has decided only around 150 cases since it was established in 1987. The Commission may indicate provisional measures “to avoid irreparable damage being caused.”60 57

58

59

60

See Declaration on Unconstitutional Change of Government, adopted in Lomé, Togo, by the OAU Assembly of Heads of State and Government in July 2000, reprinted in Compendium of Key Human Rights Documents of the African Union 124 (Christof Heyns & Magnus Killander eds., 3d ed. 2007). For example, the AU Assembly did not react to the finding by the election observer mission of the Pan-African Parliament that the Presidential Elections in 2008 in Zimbabwe were not “free, fair and credible.” Report of the Pan African Parliament election observer mission, Presidential run-off elections and House of Assembly by-elections, Republic of Zimbabwe, June 27, 2008, PAP/S/RPT/76/08, para. 18.1. The provisions in the Charter are complemented by a Protocol on the Rights of Women in Africa, adopted in 2003. Other African human rights instruments include the Convention Governing the Specific Aspects of Refugee Problems in Africa, the African Charter on the Rights and Welfare of the Child, the African Youth Charter and the African Charter on Democracy, Elections and Governance. On the African regional system, see Christof Heyns & Magnus Killander, The African Regional Human Rights System, in International Human Rights Law in a Global Context 855 (Felipe Gomez Isa & Koen de Feyter eds., 2009). Rules of Procedure (1995) rule 111; see also Interim Rules of Procedure of the African Commission, rule 101 (2008); Protocol to the African Charter on the African Court on Human and Peoples’ Rights art. 27(2).

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In contrast to the Inter-American and European systems, the Commission’s decisions remain confidential until the AU Assembly of Heads of State and Government adopts the Commission’s report in terms of Article 59 of the African Charter.61 This is a controversial and indeed unfortunate aspect of the way in which the Commission functions, since it places the decision whether to make findings of violations known in the hands of those held accountable for the violations and their peers. To complement the protective mandate of the African Commission, the Protocol on the African Court on Human and Peoples’ Rights was adopted in 1998. The Protocol entered into force in 2004. The Court adopted Interim Rules of Procedure in 2008 pending the harmonization of the Rules with the part of the Rules of the African Commission dealing with complaints. In terms of the Protocol individuals do not have the right to approach the Court directly unless the member state has made a special declaration to this effect, in which case the individual can seemingly bypass the Commission.62 In addition to the African Commission and the African Court there is a committee monitoring compliance with the African Charter on the Rights and Welfare of the Child. The African system consequently entails strong promotional as well as protective functions. 5. Appointment and Criteria for Appointment of Members of the Supervisory Bodies The eleven members of the Commission and the eleven members of the Court are nominated by member states and elected by the AU Assembly. The Court Protocol provides that “[d]ue consideration shall be given to adequate gender representation in the nomination process.” 63 Despite this, only two judges of the Court are women, as opposed to the Commission which has six women among its eleven members. The fact that many Commissioners in the past have been serving civil servants or ambassadors has been criticized.64 However, in a 2005 note verbale to the member states the AU Commission provided guidelines that excluded senior civil servants and diplomatic representatives from being elected. This has proven largely effective in terms of new appointments to the Commission and Court. 6. Supervision of Implementation of Judgments According to Article 29(2) of the Court Protocol the Council of Ministers, now the Executive Council of the AU, shall be notified of the judgments of the Court and monitor their execution. Since no decision has been handed down by the Court, it 61 62 63 64

See Magnus Killander, Confidentiality Versus Publicity: Interpreting Article 59 of the African Charter on Human and Peoples’ Rights, 6 Afr. Hum. Rts. L.J.572 (2006). At the time of writing, only two of the twenty-five state parties to the Protocol had made this declaration. Protocol to the African Charter on the African Court on Human and Peoples’ Rights art. 12(2). See Frans Viljoen, International Human Rights Law in Africa 311-12 (2007).

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

remains to be seen how this will be applied in practice. There is not an established tradition of supervision of the decisions of the Commission. 7. Complementarity The Commission will not consider a case which is pending before or has been dealt with by another international human rights body.65 8. Resources In 2007, the AU Executive Council decided that the African Commission should submit its own budget before the Commission and not as previously be subsumed under the budget of the AU Commission’s Political Affairs Department.66 This led to a dramatic increase in the resources available for the Commission. The budget allocated by the AU for 2007 was US 1.2 million. The 2008 budget increased to US 6 million. Seemingly because of a lack of implementation capacity the budget for 2009 was reduced to US 3.67 million.67 In 2008 the Commission had 23 permanent staff members.68 The budget for the African Court was US 4.75 million in 2007. In July 2007 the AU Executive Council approved a plan which would see the appointment of 46 staff members in the Court registry. The 2007 AU budget was US 133 million. III. Proposed Guidelines for Regional Human Rights Systems In the context of national human rights institutions, the so-called Paris Principles were developed to set a minimum standard against which these institutions can be measured.69 The Paris Principles sets out recommendations under the following headings: – Competence and responsibilities – Composition and guarantees of independence and pluralism – Methods of operation – Quasi-judicial competence. Subsequently a system in terms of which national human rights institutions are classified has been developed. The International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights regularly assess the compliance of its members with the Paris Principles.70 65 66 67 68 69 70

See African Charter art. 56(7). See Tenth ordinary session of the Executive Council of the African Union, Jan. 25-26, 2007, EX/CL/322 (X). See 26th Activity Report of the African Commission on Human and Peoples’ Rights, para. 125. See Heyns et al., supra note 31, at 936. See U.N. Doc. A/RES/48/134, 85th plenary meeting of the U.N. General Assembly (Dec. 20, 1993). The institutions are given the status A (compliant with Paris Principles), A(R) (insufficient documentation), B (observer status, not fully compliant with Paris Principles) and

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This contribution argues that a set of standards should be developed that plays the same role in respect of regional human rights systems, based largely on a critical assessment of the common features of the three older regional systems as outlined above. These criteria can then be used when calls for the possible reform of the existing regional systems are considered and when other regional systems are established or reformed. It is submitted that the Guidelines identified below could be a starting point to identify such criteria.

1. 2.

3.

4.

5.

6.

7.

71

General Guidelines Applicable to Regional IGOs with Human Rights Systems The promotion and protection of human rights should be recognized as an objective and guiding principle of the IGO in its founding treaty. Membership of the IGO should be conditioned upon observance of human rights and democracy criteria, in terms of the admission or possible expulsion of member states or lesser forms of sanctions. There should be an effective mechanism in the IGO to follow up the implementation by states of decisions by the human rights supervisory bodies. Regional Human Rights Systems A regional human rights system should be created by a treaty to which states that are members of the relevant IGO can become party. The treaty should clearly set out the applicable rights catalogue, either in original terms or by reference to other international instruments,71 in a way that does not lower the global standards of human rights protection and if possible poses higher standards. The human rights systems of a regional IGO, in respect of countries that are also subject to other international human rights supervisory systems, should be geared toward complementarity. The general rule should be in favor of deference to global standards as minimum requirements. A regional system should not consider cases that have already been decided on the global level. Regional human rights supervision should be done by a human rights monitoring body (such as a commission) or a court. The different human rights supervisory bodies in a particular system should between them have a mandate to both promote and protect human rights. Where a regional human rights monitoring body such as a commission is established, its mandate should include (or be supplemented by the mandates of other bodies in the system that include): i. On-site visits to investigate and report on the human rights situation in member states. ii. Effective response to emergency situations. iii. Appointment of independent special rapporteurs, working groups etc as may be needed.

C (non-compliant with Paris Principles). See www.nhri.net. For example, the norms recognized in the Universal Declaration of Human Rights and U.N. human rights treaties to which the member states are party.

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

iv. v.

vi.

Consideration and investigation of individual complaints in respect of alleged human rights violations by member states. Publication and dissemination of reports and decisions. The monitoring body itself, and not another decision-making body of the IGO, should decide whether and what to publish. Transparency should be the norm. Interaction with civil society organizations, national human rights institutions and other international mechanisms with a human rights agenda.

The above may be supplemented by other mechanisms such as inter-state communications and state-reporting. 8. Where a regional court with a human rights mandate is established, it should hear cases as referred to it by the relevant human rights monitoring body, member states, or individuals. In a system where a human rights monitoring body exists, individuals or their representatives should also have the power to refer cases to the court after consideration by the human rights monitoring body. The court should have contentious as well as advisory jurisdiction. The court’s judgments should be widely disseminated. 9. The monitoring body and court, where established, must be composed of independent and impartial experts. The independence and impartiality of the members must be guaranteed through: i. Confirmation hearings and election in an open and transparent manner, for example by the parliamentary body of the IGO. ii. Privileges and immunities. iii. Proper procedures for the removal of commissioners and judges. 10. The commissioners and judges must be broadly representative of the region in terms of gender, legal systems, language and geography. 11. The relevant IGO has the responsibility to ensure the continuing effectiveness of the supervisory bodies that they establish, in consultation with civil society. The IGO has to provide the secretariats of the supervisory bodies with adequate resources. The commissioners and judges should control the appointment of key staff. IV. Applying the Guidelines The Proposed Guidelines outlined above can potentially be applied to the existing, emerging or new regional systems. For example, point 3 of the Guidelines calls for effective mechanisms to monitor the implementation of the decisions of the supervisory bodies, which is of relevance to the Inter-American and African systems, where this does not exist. In the following section the Guidelines outlined above are applied to the emerging human rights systems of ASEAN and the League of Arab States.

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A. The Association of South East Asian Nations (ASEAN) 546

For many years calls have been made and processes have been under way, supported inter alia by the United Nations, to establish a regional human rights mechanism or mechanisms in Asia. Some of the inhibitive factors have been the view that there is an “Asian exception to human rights”; the fact that Asia is such a vast and undefined area, and the absence of an IGO that spans Asia, of which a human rights system can form part. Recently the Association of South East Asian Nations (ASEAN), an IGO with ten member states established in 1967, took the initiative in the part of Asia that it covers to establish a regional human right body.72 The ASEAN Charter was adopted in 2007, and provides that one of the purposes of ASEAN is to: Strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms, with due regard to the rights and responsibilities of the member states of ASEAN.73

Point 1 of the Proposed Guidelines set out above is consequently covered. There is, however, no reference to human rights in respect of membership of ASEAN in its Charter (point 2).

72

73

Apart from ASEAN, Asian IGOs (with the exception of the League of Arab States discussed below) have not followed the trend of including human rights in their objectives and principles. For example, the Treaty of Izmir of the Economic Cooperation Organization, made up of Iran, Pakistan, Turkey and the Central Asian States, only makes reference to the raising of standard of living and quality of life. See Treaty of Izmir art. II(a). The Charter of the Cooperation Council for the Arab States of the Gulf (GCC) also does not make any reference to the people of the member states. See http://www.gccsg.org/ eng/index.php?action=Sec-Show&ID=1 (accessed Apr. 27, 2009). Likewise, the Charter of the South Asian Association for Regional Cooperation (SAARC) has as one of its objectives “to promote the welfare of the peoples of South Asia and to improve their quality of life.” SAARC Charter art. I(a). Under the heading “Principles” it is set out that “[c]operation within the framework of the association shall be based on respect for the principles of sovereign equality, territorial integrity, political independence, non-interference in the internal affairs of other states and mutual benefit.” Id. art. II(1). However, it is noticeable that the SAARC Social Charter includes a commitment by member states to: “Promote universal respect for and observance and protection of human rights and fundamental freedoms for all, in particular the right to development; promote the effective exercise of rights and the discharge of responsibilities in a balanced manner at all levels of society; promote gender equity; promote the welfare and interest of children and youth; promote social integration and strengthen civil society.” SAARC Social Charter art. II(2)(xii). ASEAN Charter art. 1(7); see also id. art. 2(2) (“ASEAN and its member states shall act in accordance with the following principles: (h) adherence to the rule of law, good governance, the principles of democracy and constitutional government; (i) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice.”).

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

Article 14 of the Charter provides for the establishment of an ASEAN Human Rights Body. The Terms of Reference (ToR) of what is now called the ASEAN Intergovernmental Commission on Human Rights (AICHR) was adopted by the ASEAN Ministers of Foreign Affairs on July 20, 2009.74 The AICHR is consequently not established through a treaty, contrary to point 4 of the Guidelines. The ToR do not include any rights catalog, though it provides that the Commission should “uphold international human rights standards as prescribed by the Universal Declaration of Human Rights, the Vienna Declaration and Programme of Action, and international human rights instruments to which ASEAN Member States are parties,”75 which is in accordance with point 4. While there is a clear reference to international human rights standards, other provisions of the ToR place a strong and arguably countervailing emphasis on national and regional particularities.76 The mandate of the AICHR is essentially promotional and includes the development of an ASEAN human rights declaration and the preparation of thematic studies.77 Although the ToR states that one of the purposes of the AICHR is to “promote and protect human rights and fundamental freedoms of the peoples of ASEAN,”78 it does not have the usual protective powers. The AICHR does not have an explicit mandate to conduct independent fact-finding missions. It also does not have a mandate to consider communications from either states or individuals. This lack of a meaningful protective mandate is contrary to point 6 of the Proposed Guidelines. Significantly, as indicated by its name, the ASEAN Intergovernmental Commission on Human Rights is not intended to be an independent body; it is an intergovernmental consultative body.79 Its members are not expected to be independent. Each member state will appoint a “representative to the AICHR who shall be accountable to the appointing government.”80 A representative is appointed for a term of three years, but may be recalled by his or her government before the term comes to an end. The government should consult with relevant stakeholders “if required by … internal processes.”81 These provisions are clearly not in conformity with point 9 of the Guidelines. In appointing representatives, governments shall “give due consider-

74

75 76 77 78 79 80 81

See ASEAN Secretariat, Another Step Forward for Regional Human Rights Cooperation, Press Release, July 20, 2009; see also Amnesty International, ASEAN’s New Body Must Protect and Promote Human Rights, July 21, 2009, www.amnesty.org (accessed Sept. 29, 2009). The ToR are available at www.aseansec.org/Doc-TOR-AHRB.pdf (accessed Sept. 29, 2009). ToR para. 1.6. The ToR further provide that the Commission shall develop an “ASEAN Human Rights Declaration.” Id. para. 4.2. See, e.g., id. para. 1.4. Id. para. 4. Id. para. 1(1). Id. para. 3. Id. para. 5(2). Id. para. 5(4).

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ation to gender equality, integrity and competence in the field of human rights.”82 This provision goes some way toward addressing point 10 of the Guidelines. The ToR in its final form no longer states the aim of shielding ASEAN and its members from international criticism in respect of human rights, as was alluded to earlier, but it does emphasize the independence of all ASEAN states83 and the importance of “non-interference in the internal affairs of ASEAN member states,”84 and to be free from “external interference.”85 The AICHR does not currently place itself on a par with the other regional systems, but the door for the development or evolution of a more independent body with stronger protective powers is left open by para. 9.6 of the ToR, which provides that the ToR shall be reviewed after five years. It is clear from the above that the AICHR is in nature very different from the three established regional systems. While it is widely recognized that the creation of this body could be an important first step toward more robust protection of human rights in the region, it should be recognized that, because safeguards such as provisions concerning the independence of the Commissioners are absent, there is a constant danger that this body may be used to shield rather than to stop human rights violations. Nevertheless, if one looks at how the other regional systems developed over the years, the new ASEAN body could possibly be the nucleus for the development of a stronger regional mechanism in Asia, which is more in conformity with the kind of Guidelines proposed above. B. League of Arab States The League of Arab States spans two continents. Of its 22 member states, ten are in Africa and the remainder in Asia.86 This is consequently one of the examples where a state in Africa that is a party to the African regional human rights system may also be subject to the Arab League system, and the questions about possibly conflicting standards are brought to the fore. The founding treaty of the League, the Pact of the League of Arab States of 1945, makes no mention of human rights.87 A revision of the Pact would be required to comply with point 1 of the Proposed Guidelines. All Arab states can become members of the League. There are no other membership requirements. The League adopted an Arab Charter on Human Rights in 1994, but it never entered into force. The Charter was criticized by many for not meeting international

82 83 84 85 86 87

Id. para. 5(3). Id. para. 2(1)(a). Id. para. 2(1)(b). Id. para. 2(1)(c). This fact poses specific challenges with regard to complementarity between the African regional human rights system and that of the Arab League. See Pact of the League of Arab States, Mar. 22, 1945, available at avalon.law.yale. edu/20th_century/arableag.asp (accessed Oct. 9, 2009).

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

standards and in 2002 the Council of the League adopted a resolution requesting the “‘modernization’ of the Charter to correspond with international human rights standards.”88 A revised Arab Charter was adopted in 2004 and entered into force in 2008 after having been ratified by seven states.89 The revised Charter has been seen as a step forward with regard to the substantive human rights covered, though some rights have been omitted or restricted.90 Article 43 of the Charter provides that the Charter should not be interpreted as limiting human rights as set out in human rights instruments adopted or ratified by the states parties.91 Whether this entails compliance with or lip service to point 4 of the Guidelines remains to be seen. Implementation of the Arab Charter is to be monitored by the Arab Human Rights Committee. The seven members of the Committee “must be highly experienced and competent in the Committee’s field of work” and shall “serve in their individual capacity with full independence and impartiality.”92 The members of the Committee are elected for four-year terms at a meeting of the state parties to the Charter.93 The members of the Committee, all of which are male (contrary to point 10), were elected by the state parties to the Arab Charter on Human Rights in March 2009. Some members hold government posts. There are concerns over the transparency of the appointment process as well as how independent and representative the members of the Committee are (point 9).94 At its first meeting in April 2009, the Committee adopted provisional Rules of Procedure.95 The Committee has decided to engage in consultations before adopting final Rules of Procedure.96 The Charter provides for state reporting as the main form of supervision.97 The Charter does not provide for a complaints procedure (contrary to point 6).98 While the state reporting procedure under the Arab Charter system presents a mild form of supervision, the absence of any kind of complaints and investigative procedure places this system at odds with some of the fundamental provisions of the Proposed Guide88 89

90 91 92 93 94 95 96 97 98

Mervat Rishmawi, The Revised Arab Charter on Human Rights: A Step Forward?, 5 Hum. Rts. L. Rev. 361, 362 (2005). By July 2009, the Charter had been ratified by ten states: Algeria, Bahrain, Jordan, Libya, Palestine, Qatar, Saudi Arabia, Syria, United Arab Emirates (UAE), and Yemen. See Amnesty International, Recommendations for the Elaboration of Rules of Procedure of the Arab Human Rights Committee, IOR 65/001/2009, note 9, (July 2, 2009). A translation of the Charter can be found at www.pogar.org/themes/reforms/documents/daCharter.pdf. See Rishmawi, supra note 88, at 371-76; U.N. Press Release, supra note 5. Concerns have been expressed with regard to rights of women and non-citizens. See Rishmawi, supra note 88, at 370. Arab Charter on Human Rights art. 45(b) (2004). See id. art. 45. See Amnesty International, supra note 89, note 10. See id. at 8. See id. at 9. See Arab Charter on Human Rights, supra note 92, art. 48. See Rishmawi, supra note 88, at 365.

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lines (such as point 7). Nevertheless, as with the ASEAN mechanism, it could be a starting or entry point for the emergence of a more robust system or at least greater legitimacy of the concept of human rights in the Arabic-speaking world. C. Other Regional Human Rights Initiatives The discussion so far has largely dealt with what can be termed human rights “systems.” if the essential components of human rights systems are understood to be “(1) a list or lists of internationally guaranteed human rights and corresponding duties, (2) permanent institutions, and (3) compliance or enforcement procedures.”99 A wide range of IGOs are active in one way or another in the field of human rights, but insofar as their activities do not constitute fully-blown human rights “systems,” or their human rights work may not be their primary focus, it may be better to refer to what they do by using the more inclusive term regional human rights “initiatives.” These initiatives, as is the case with the regional human rights systems discussed above, can serve as platforms for human rights or as shields. In what follows an overview of some of these initiatives is given to gain a better understanding of the dynamics involved in the field of regional human rights. 1. The Organization of the Islamic Conference (OIC) The Organization of the Islamic Conference (OIC) established in 1969 has fifty-seven member states on four continents. In 2008 the OIC revised its Charter. The new Charter includes a provision that member states “shall uphold and promote, at the national and international levels, good governance, democracy, human rights and fundamental freedoms, and the rule of law.”100 The objectives of the OIC include “to promote and to protect human rights and fundamental freedoms including the rights of women, children, youth, elderly and people with special needs as well as the preservation of Islamic family values.” In 1990, the OIC adopted the Cairo Declaration on Human Rights in Islam. The Declaration has been criticized for making all human rights subject to Islamic law. A Covenant on the Rights of the Child in Islam was adopted by the OIC in 2005. The Covenant will enter into force when it has received twenty ratifications. The Covenant provides for the establishment of an Islamic Committee on the Rights of the Child composed of representatives of state parties which should meet every two years to examine progress in implementation of the convention.101 The Covenant in different respects does not meet international standards. For example, it defines a child not as someone under eighteen years old but as someone who has not attained

99 Dinah Shelton, Regional Protection of Human Rights 15 (2008). 100 OIC Charter art. 2(7). 101 See Covenant on the Rights of the Child in Islam art. 24, OIC/9-IGGE/HRI/2004/Rep. Final.

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

maturity under “the law applicable to him/her.”102 Some rights are made subject to Islamic law, such as the freedom of expression.103 The OIC is currently in the process of drafting an “Islamic Charter on Human Rights,” a “Covenant on the Rights of Women in Islam” and an “Islamic Covenant against Racial Discrimination.”104 According to the OIC Charter, an “Independent Permanent Commission on Human Rights shall promote the civil, political, social and economic rights enshrined in the organisation’s covenants and declarations and in universally agreed human rights instruments, in conformity with Islamic values.”105 It remains to be seen whether the standards posed will be compatible with those of the universally agreed human rights instruments. In April 2009, an Intergovernmental Group of Experts met to discuss the establishment of the Commission.106 At the time this essay was written, it was unclear how the Commission will be composed and what its mandate will be.107 Considering the multi-regional nature of the OIC, a limited promotional mandate appears to be advisable with deference to regional human rights systems where such exists and to the global system. 2. European Union There was no explicit reference to human rights in the 1957 Rome Treaty establishing the European Economic Community. The 1986 Single European Act set out a commitment to human rights in its preamble. The 1992 Treaty of Maastricht on European Union went further by setting out as one of the objectives of the European Union as “to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union.”108 The Treaty further provides that the EU “shall respect fundamental rights, as guaranteed by the [European Convention on Human Rights] and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”109 A number of areas were included in EU competency with a provision that these mat102 Id. art. 1. 103 See id. art. 9. 104 Resolution No 2/36-LEG on follow up and coordination of work on human rights, adopted at the thirty-sixth session of the Council of Foreign Ministers (for Enhancing Islamic Solidarity), held in Damascus, Syrian Arab Republic from 28 Rabiul Thani -1 Jamadal Awwal 1430 H (May 23-25, 2009), para. 17. 105 OIC Charter art. 15. 106 See OIC Discusses Set-up of an Independent and Permanent Human Rights Commission, Apr. 12, 2009, http://www.puic.org/english/index.php?option=com_content&task=view &id=320&Itemid=145 (accessed June 14, 2009). 107 See Resolution No 3/36-LEG on the establishment of the Organization of the Islamic Conference Independent Permanent Commission on Human Rights, adopted at the thirty-sixth session of the Council of Foreign Ministers (for Enhancing Islamic Solidarity), held in Damascus, Syrian Arab Republic from 28 Rabiul Thani -1 Jamadal Awwal 1430 H (May 23-25, 2009). 108 Treaty of Maastricht art. B (now art. 2). 109 Id. art. 6(2).

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ters should be dealt with in conformity with the European Convention.110 Respect for human rights was also set out as an objective in the development cooperation of the EU and its Common Foreign and Security Policy.111 A Charter of Fundamental Rights of the European Union, covering civil, political and socio-economic rights, was adopted jointly by the European Parliament, the Council and the Commission in December 2000. It has been included as part of the Lisbon Treaty and is legally binding. Human rights have thus increasingly become part of community law. The EU has a clear commitment to human rights when it comes to the expansion of the Union which currently has twenty-seven members. As was alluded to above, human rights play an important role in membership negotiations which have led to reforms in states which are now members of the EU as well as in those who remain candidate countries, for example Turkey. Despite the Charter of Fundamental Rights, the EU has often been accused of focusing more on the human rights situation in third states than on the situation in the member states.112 This concern has to some extent been addressed through the establishment in 2007 of the European Union Agency for Fundamental Rights, though the mandate of the Agency is purely advisory and at the request of member states or EU institutions.113 The Agency has no independent investigating powers. It is clear that the EU organs to a large extent defer to human rights monitoring of other European IGOs, mainly the CoE. The European Court of Justice (ECJ) has been at the forefront of integrating human rights into community law.114 The ECJ has held that: Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories.115

110 See id. arts. K.1, K.2. 111 See id. arts. 130u(2), J.1(2). 112 The European Parliament recently recognized this problem when it stated that it: “Deplores the fact that the Member States continue to refuse EU scrutiny of their own human rights policies and practices and endeavour to keep protection of those rights on a purely national basis, thereby undermining the active role played by the European Union in the world as a defender of human rights and damaging the credibility of the EU’s external policy in the area of the protection of fundamental rights.” European Parliament resolution of January 14, 2009 on the situation of fundamental rights in the European Union 2004-2008, para. 3. 113 See www.fra.europa.eu/fraWebsite/about_us/about_us_en.htm (accessed Sept. 1, 2009). 114 See, e.g., Elizabeth F. Defeis, Human Rights and the European Court of Justice: An Appraisal, 31 Fordham Int’l L.J. 1104 (2008). 115 Case C-540/03, European Parliament v Council of the European Union para. 35.

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

The Court is not bound by the judgments of the European Court of Human Rights but it is clear that it seeks guidance from the jurisprudence of the Court.116 3. Commonwealth of Independent States The Commonwealth of Independent States (CIS) consists of former members of the Soviet Union with the exception of the Baltic states and Georgia. Apart from the Central Asian states, all member states of the CIS are also members of the CoE. According to Article 2 of the CIS Charter one of its purposes is to ensure “the rights and basic freedoms of individuals in accordance with the universally recognized principles and norms of international law and documents of CSCE.”117 The CIS has adopted a number of human rights treaties.118 The CIS Convention on Human Rights and Fundamental Freedoms (CIS Human Rights Convention) to a large degree restate the civil and political rights in the European Convention but also include socio-economic rights such as the right to work, health and social security.119 The implementation of the CIS Human Rights Convention is monitored by the CIS Human Rights Commission, a body made up of government representatives.120 There is a clear potential for conflict with the European Court of Human Rights, and the CoE Parliamentary Assembly has criticized the CIS Convention for offering “less protection than the [European Convention], both with regard to its contents, and with regard to the body enforcing it.”121 While it is clear that the CoE human rights system should be the first port of call with regard to the European member states of CIS, the CIS system could possibly play a role with regard to the CIS member states in Central Asia. 4. African (Sub) Regional Economic Communities A number of sub-regional IGOs in Africa—the Regional Economic Communities or RECs—have started to play an active role in respect of human rights in the areas which they cover. While the further development of the African Charter system by the African Union has taken an extraordinarily long time to make progress (the initiative to establish an African human rights court was started in 1994 and has not yet come to full fruition) the courts of the sub-regional IGOs, which essentially have an 116 See Elizabeth F. Defeis, Human Rights and the European Union: Who Decides? Possible Conflicts between the European Court of Justice and the European Court of Human Rights, 19 Dickinson J. Int’l L. 301 (2001). 117 Charter of the Commonwealth of Independent States (with declaration and decisions), adopted at Minsk on January 20, 2003, 1819 U.N.T.S. 57. CSCE refers to the Conference on Security and Cooperation in Europe, now the OSCE. 118 See CIS Human Rights Treaties 1991-2007, http://www.cis.minsk.by/main.aspx?uid=3474 (accessed Apr. 27, 2009). 119 The Convention was adopted in 1995 and entered into force in 1998. 120 See CIS Human Rights Convention art. 34; CIS Charter art. 33. 121 CoE Parliamentary Assembly Resolution 1249 (2001): Coexistence of the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States and the European Convention on Human Rights, para. 4.

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economic focus, were faster to move on the human rights front, and may have taken some of the initiative. Given the fact that the African Charter has been ratified by all fifty-three members of the African Union, the membership of the RECs and the AU will invariably overlap, which raises the possibility of conflicting human rights monitoring. In most but not all cases the normative framework is that of the African Charter. The treaties establishing the Common Market for Eastern and Southern Africa (COMESA), the Economic Community of West African States (ECOWAS), and the Intergovernmental Authority on Development (IGAD) provide that the member states shall adhere to the “recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.”122 Article 6(d) of the Treaty of the East African Community (EAC) provides that member states shall be governed by the principle of “good governance including adherence to the principles of democracy, the rule of law, recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.” The Treaty of the Southern African Development Community (SADC) provides that “SADC and its member states shall act in accordance with the following principles: human rights, democracy and the rule of law.”123 Some human rights have been explicitly included in the treaties establishing these RECs, while others are recognized in declarations and protocols adopted by these organizations.124 Monitoring of these commitments is relatively weak. Some of the RECs allow individuals to submit cases before their respective courts. The East African Court of Justice and SADC Tribunal have heard a couple of cases related to human rights, basing their jurisdiction on treaty provisions such Article 6(d) of the EAC Treaty set out above and the non-discrimination clause in the SADC Treaty.125 The ECOWAS Community Court of Justice has been given a broad human rights mandate with complainants not even required to exhaust local remedies. The Court has handed down several cases on various aspects of human rights and has held respondent states to have violated the African Charter.126 These developments are obviously welcome from the perspective of securing the protection of the rights the individuals in question, and are perhaps inevitable given the slow pace at which the African Union Court is being established. However, there is a risk that these judgments could conflict with the interpretation of the African 122 COMESA Treaty art. 6(e); ECOWAS Treaty art. 4(g); IGAD Agreement art. 6(f ). 123 SADC Treaty art. 4(c). 124 See, e.g., ECOWAS Protocol on Democracy and Good Governance; SADC Protocol on Gender and Development. 125 See Katabazi v. Secretary General of the East African Community and Another, (2007) AHRLR 119 (EAC 2007); Campbell (Pvt) Ltd v. Zimbabwe, SADC (T) Case No. 2/2007, Judgment of November 28, 2008, www.saflii.org. 126 See, e.g., Solomon T. Ebobrah, A Critical Analysis of the Human Rights Mandate of the ECOWAS Community Court of Justice, Danish Institute for Human Rights, Research Partnership 1/2008.

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Charter given by the African Commission and Court, or at least render the work of these continental bodies less relevant.127 It remains an open question whether a litigant can approach the African Human Rights Commission or Court after having secured a decision from the sub-regional court and whether a sub-regional court can be approached after a case has been decided by the African Commission or Court.128 5. (Sub) Regional IGOs in the Americas The Tegucigalpa Protocol establishing the Central American Integration System (SICA) provides for the respect for human rights as an objective of the organization.129 The Framework Treaty on Democratic Security in Central America was adopted by SICA in 1995 and entered into force two years later.130 The treaty recognizes the importance of both of human security and human rights. However, the mandate of the main monitoring body of the treaty, the Security Commission for Central America, does not include human rights.131 The Revised Treaty of Chaguaramas Establishing the Caribbean Community adopted in 2001 only makes reference to human rights in the preamble through a reference to the Charter of Civil Society, the rather oddly named main human rights instrument of CARICOM adopted by the Heads of Government in 1997.132 The Charter sets out both civil and political rights and socio-economic rights. It is a non-binding instrument in the form of a declaration.133 The Andean Community was established through the Cartagena Agreement of 1969. The preamble of the agreement sets out that it is based on “equality, justice, peace, solidarity, and democracy,” but there is no mention of human rights. The member states of the Andean Community in 1980 adopted a Charter of Conduct in which they pledged that respect for human, political, economic and social rights constitute a basic rule of the internal conduct of the States of the Andean Group, that their defense is an international 127 See id. at 25. 128 Cf. African Charter art. 56(7); ECOWAS Supplementary Protocol A/SP.1/01/05 Amending the Protocol A/P1/7/91 Relating to the Community Court of Justice art. 10(d)(ii); see also Solomon T. Ebobrah, Addressing Sub-regional Challenges to the Unity of African International Human Rights Law, paper presented at the Conference on Unity or Fragmentation of International Law: The Role of International and National Tribunals, Oslo, May 14-15, 2009. 129 See Tegucigalpa Protocol to the Charter of the Organization of Central American States (ODECA) art. 3(a) (Dec. 13, 1991). 130 See www.sica.int (accessed Apr. 26, 2009). 131 See Treaty of Chaguaramas (as revised) art. 52. SICA has also adopted the Central American Social Integration Treaty. 132 See www.caricom.org/jsp/secretariat/legal_instruments/chartercivilsociety.jsp; www. caricom.org/jsp/ secretariat/legal_instruments/chartercivilsociety_resolution.jsp. 133 María Belén Olmos Giupponi, Derechos humanos e integracion en America Latina y el Caribe 52 (2006).

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obligation for States and that, consequently, joint action taken to protect those rights does not violate the principle of non-intervention.134

The Andean Charter for the Promotion and Protection of Human Rights was signed by the presidents of the member states in July 2002.135 The Charter provides that the Council of Ministers of Foreign Affairs “shall decide in due time” whether to make the Charter binding.136 The Charter provides for substantive rights and a commitment to the procedures to be established or strengthened at the national level. It further provides for cooperation with international monitoring bodies. The member states reiterate their will to accept the decisions of the Inter-American Human Rights Court. Furthermore, to take a constructive attitude to favorably accept the decisions and recommendations of regional and global non-jurisdictional mechanisms, when applicable, pursuant to relevant human rights treaties and constitutional provisions.137

This emphasis on complementarity with the regional human rights system is also clear from instruments adopted by other regional IGOs in the Americas. MERCOSUR is a regional integration IGO formed by Argentina, Brazil, Paraguay and Uruguay in 1991. There is no reference to human rights in its founding treaty but MERCOSUR has adopted Protocols dealing with democracy (Protocol of Ushuaia) and the promotion and protection of human rights (Protocol of Asunción). MERCOSUR has further established a center for the promotion of the rule of law. One of the objectives of this center is to assist member states to “harmonize national regulations with Inter-American human rights rulings and treaties.”138 The Cuzco Declaration on the establishment of a South American Community was adopted at the third South American Summit in 2004.139 The efforts to establish a South American Community should be seen as a continuation of the integration of the Andean Community and MERCOSUR,140 which have included the adoption of 134 Colombia, Ecuador, Venezuela and Peru, Charter of Conduct, signed at Riobamba, Sept. 11, 1980, 1301 U.N.T.S. 266. 135 The Charter is available in English at www.comunidadandina.org/ingles/documentos/ documents/andean_charter.htm (accessed Apr. 24, 2009). 136 Andean Charter art. 96. 137 Id. art. 5; see also id. arts. 82-83. 138 MERCOSUR Human Rights Public Policy Institute, INTAL monthly newsletter, June 2008, www.bid.org.uy/intal/articulo_carta.asp?tid=6&idioma=eng&aid=448&cid=234& carta_id=759 (accessed 6 May 2009). 139 The Cuzco Declaration sets out shared South American values: “democracy, solidarity, human rights, freedom, social justice, respect for territorial integrity, for diversity, nondiscrimination and the affirmation of their autonomy, the sovereign equality of States and the peaceful settlement of disputes.” 140 In addition to the members of the Andean Community and MERCOSUR, Chile, Guyana and Suriname participate in this initiative.

29 Christof Heyns; Magnus Killander, Toward Minimum Standards for Regional Human Rights Systems

the South American “democracy clause” adopted in September 2000.141 The Cuzco Declaration was followed by the adoption of the Constitutive Treaty of the Union of South American Nations (UNASUR) in May 2008. The treaty has not yet entered into force,142 but an institutional framework has been established. The Andean Community,143 MERCOSUR,144 SICA,145 and CARICOM146 all have regional community courts. The Statute of the Central American Court of Justice explicitly excludes jurisdiction of the court with matters dealing with human rights.147 The Andean and MERCOSUR courts have not considered human rights cases. The Caribbean Court of Justice (CCJ) ensures implementation of the Revised Treaty of Chaguaramas. In this capacity it has not dealt with any human rights cases. The CCJ also functions as a final Court of Appeal, replacing the Judicial Committee of the Privy Council of the member states which have recognized this competency.148 V. Conclusion How real is the threat of conflict between the different international systems? By and large, the different players on the international stage so far seem to be aware of this possibility, and try to avoid it, but the proliferation of systems may change the picture. The possibility of conflict between the global and regional human rights initiative was outlined at the outset. However, it became clear that the potential for conflict also relates to the relationship between the different regional initiatives, and the regional and sub-regional ones. The European Court of Justice for example often looks at the case law of the European Court of Human Rights for guidance. In Africa it is too early to determine whether the ECOWAS Community Court of Justice, with its broad human rights mandate, will follow the lead of the African Commission and Court. In the Americas the regional system clearly takes the lead and while subregional IGOs have adopted human rights instruments, the monitoring system is not 141 “Maintenance of the rule of law and full respect for the democratic system in each of the twelve countries of the region constitute an objective and a shared commitment, which as of today is a prerequisite for participation in future South American meetings.” 142 The Act requires nine ratifications to enter into force. Bolivia was the first country to deposit its ratification of the treaty in March 2009. See Bolivia ratifica su pertenencia a Unasur, El Universo, Mar. 11, 2009, www.eluniverso.com (accessed Apr. 23, 2009). 143 See www.tribunalandino.org.ec/. 144 See Tribunal Permanente de Revision del Mercosur, www.mre.gov.py/tribunal/inicio. htm. 145 See Corte Centroamericana de Justicia, www.ccj.org.ni/. 146 See www.caribbeancourtofjustice.org/. 147 See Statute of the Central American Court of Justice art. 25. 148 See Agreement Establishing the Caribbean Court of Justice art. XXV. Only Barbados and Guyana have recognized the appellate jurisdiction of the CCJ. See caribbeancourtofjustice.blogspot.com/2009/01/accept-caribbean-court-of-justice.html (accessed Apr. 28, 2009). Note should be taken of the Eastern Caribbean Supreme Court, www.eccourts. org/.

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developed. The sub-regional IGOs thus largely leave the international interpretation of human rights to the Inter-American Commission and Court and U.N. bodies. The fledgling systems in Asia under ASEAN and the League of Arab States do not include complaints systems and their contribution to international human rights law will therefore mainly be in the form of statements. One of the complexities in developing a coherent regional human rights system under the OIC (as is the case with the League of Arab States) is the multi-regional nature of this IGO. In addition to the U.N. human rights instruments, member states of the OIC are also party to the African Charter, the European Convention and the American Convention. Conflicting decisions could arise if the OIC was to expand its monitoring system. It is clear that despite the increased concern with human rights from a number of regional IGOs, the main human rights institutions of the AU, CoE and OAS still dominate the work of holding governments accountable. In particular in the Americas it is clear that sub-regional IGOs, while promoting human rights through the adoption of declarations and treaties, see the Inter-American Commission and Court as the main enforcers of human rights, and serve to strengthen their work. In Europe, due to the high degree of integration within the EU, the European Court of Justice has many times had to deal with human rights issues. Other organs of the EU have tended to focus on the external dimension of human rights while leaving the human rights situation in the member states outside the strict confines of community law to be monitored by the CoE. In Africa courts of sub-regional IGOs have taken a role that could be seen to compete with the regional system. However, sub-regional IGOs such as ECOWAS, EAC and SADC have been less innovative when it comes to other types of human rights monitoring and response. The issue of hierarchy in international law has recently started to attract widespread attention. One aspect of this broader question is the relationships between and within the different levels on which international law engages with human rights. Given the inherent limitations of any enterprise to establish a grand and uniform narrative or set of rules on what the requirements of internationally recognized human rights norms are, some degree of variance and indeed conflict is to be expected. Universality is too often simply seen as the existence of a single set of norms that is applicable to all people, at all times and all places. There is a prior issue at stake here, which is the determination of what the contents of those “universal norms” should be in the first place. Unless there is participation by people from around the world in determining what those norms are, they can hardly be described as universal. Regional and sub-regional mechanisms, with all the potential for conflict which they entail, are a vital part of this enterprise to make the human rights project more inclusive. The answer does not lie in minimizing the role of regions and sub-regions in respect of human rights—on a balance it plays an important role in giving the people of the world who are far away from Geneva and New York a voice—or indeed a platform—to play a role in determining what should be understood under the term internationally accepted human rights standards, and in ensuring their realization. The need rather seems to be to set some guidelines in terms of how this important part of international human rights law should further be developed. It is hoped that this contribution will give some impetus to the process to develop such standards.

Chapter 30 Sabbatino, Sosa, and “Supernorms” Kenneth C. Randall Chimène I. Keitner

In this essay in honor of our former teacher, W. Michael Reisman, we explore how the New Haven School helps to explain and define the contribution to world public order of U.S. civil jurisdiction over certain international law claims. We suggest that the U.S. Supreme Court’s foundational decisions in Banco Nacional de Cuba v. Sabbatino1 and, forty years later, Sosa v. Alvarez-Machain2 demonstrate the Court’s application of a consistent, overarching principle of restraint: a U.S. court should adjudicate only claims involving what we call “supernorms.” In short, a supernorm is an international legal prohibition that has become so crystallized and entrenched as to be effectively unquestionable and inviolable either by sovereign entities or by individuals, particularly those acting under color of state authority. This subject is significant in view of the substantial increase in the number of civil lawsuits involving international law brought in U.S. courts. These suits invoke various jurisdictional provisions, foremost among them, the Alien Tort Claims Act (ATCA);3 the Foreign Sovereign Immunities Act (FSIA);4 the Torture Victim Protection Act;5 the Anti-Terrorism Act;6 and general federal-question jurisdiction.7 Many of those cases involve claims for suffering caused by human rights violations, international criminal law violations, and terrorist attacks. Legal scholars are increasingly paying attention to the various issues raised by these cases, and U.S. law school curricula today include new course offerings devoted to the adjudication of international law disputes in domestic courts. Given the nature of this volume, we assume the reader has some familiarity with the recent case law involving attempts by private plaintiffs to bring civil claims in 1 2 3 4 5 6 7

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Alien Tort Claims Act, 28 U.S.C. § 1350 (2006). Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1604 (2006). Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992). Anti-Terrorism and Effective Death Penalty Act (AEDPA), 8 U.S.C. § 1189 (2006). 28 U.S.C. § 1331 (2006).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 559-568.

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U.S. courts for violations of international law. So instead of providing a case-by-case primer, we offer an analytical overview. Because it is natural for jurists to view international issues through a domestic lens, our discussion of supernorms initially, and later, will refer to U.S. constitutional law. Furthermore, public international law and domestic constitutional law both allocate and limit public authority by recognizing individual rights. The New Haven School foregrounds the role of law in systematizing such allocations of authority, with the ultimate goal of protecting human dignity.

* In U.S. constitutional law, it is common to draw a conceptual distinction between “facial” cases, that is, constitutional challenges to laws in the abstract, and “as applied” cases, that is, challenges to laws that may be unconstitutional, not in every case, but “as applied” to the facts of a particular dispute. Facial cases thus challenge the very existence of a norm. Within the category of facial cases, constitutional law also distinguishes between “structural” and “individual rights” disputes. Structural disputes challenge the defendant’s authority to perform a specific function. The plaintiff claims that, on its face, the Constitution does not allocate the necessary authority to the defendant. A dormant Commerce Clause challenge to state action is an example. In individual rights disputes, facial cases address whether a constitutional norm limits the defendant’s accepted authority. If, for example, the Bill of Rights affords individuals a right to privacy that protects private, consensual sexual behavior, the government may not punish a private sexual encounter by any consenting adults. As-applied constitutional cases, in contrast, presume that an accepted norm authorizes the defendant’s behavior, which would (or might) ordinarily be lawful. Asapplied challenges instead argue that the application of an otherwise legitimate norm or process is nonetheless illegitimate as applied to the plaintiff ’s specific case. A Fourteenth Amendment claim that the death penalty has been inconsistently applied and unequally imposed upon a particular criminal defendant, for reasons unrelated to the underlying offense, is an example. A constitutional lawsuit may involve both facial and as-applied challenges. But the former logically precedes the latter. Facial challenges also have greater systemic implications than do as-applied challenges, for they presumptively render sovereign behavior illegitimate in related matters beyond the plaintiff ’s case. Within this framework, by analogy, much of the public international law litigation in U.S. courts turns on—and effectively ends with—a facial analysis. As we will see, the U.S. Supreme Court’s jurisprudence sets a very high facial threshold for identifying the international norms that merit adjudication. Trying the facts of the case, in application of the law, may not be the greatest obstacle for the plaintiff. Instead, in international law disputes, the plaintiff often must establish that an international norm (1) prohibits the defendant’s behavior; (2) provides legal protection to the plaintiff ; and (3) constitutes the type of international legal norm that justifies domestic adjudicatory jurisdiction.

30 Kenneth C. Randall, Chimène I. Keitner, Sabbatino, Sosa, and “Supernorms”

Much of the recent international law litigation in U.S. courts involves the individual rights class of facial challenges. But because defendants typically challenge, in the first place, the invocation of federal jurisdiction, these cases also impact structural norms. By requiring that individual claims in international law disputes involve highly defined norms, U.S. courts help define their own role within the domestic and global legal systems.

* Since 1976, the FSIA has codified the circumstances under which U.S. courts may adjudicate claims against foreign states. Scholars and jurists often trace the assertion of domestic jurisdiction over individual, as opposed to state, defendants for violations of international law to the Second Circuit’s landmark decision in Filártiga v. PeñaIrala, decided in 1980.8 In Filártiga, the court assumed domestic jurisdiction over extraterritorial torture carried out by a foreigner under color of (foreign) state law. The court famously compared torturers to the pirates and slave traders of an earlier era, describing them as the modern incarnation of hostis humani generis, the enemy of humankind. Despite the proliferation of, and occasional plaintiff ’s victory in, these federal cases, many international law claims have been dismissed on various grounds before reaching a trial on the merits. The judiciary’s cautious exercise of jurisdiction over these cases harkens back to the Supreme Court’s 1964 opinion in Sabbatino, which examined the act-of-state doctrine in the context of a nationalization by the recently established regime of Fidel Castro. The act-of-state doctrine allocates authority between the judicial and political branches of government in certain cases involving foreign affairs. It prudentially precludes courts from examining the legality of a foreign sovereign’s acts on its own territory where these acts do not clearly violate a well-established norm of international law. Sabbatino emphasized, however, that the act-of-state doctrine is not categorically applicable to cases involving foreign affairs or international law; rather, it depends on the particular norm at issue in a case: [T]he greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice.9

We could refer to Sabbatino as establishing a jurisprudence of “supernorms.” As a general matter, articulating and enforcing international norms vis-à-vis foreign actors falls within the purview of the political branches of government. Under Sabbatino, 8 9

Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964).

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however, an exception to that arrangement may arise if a case involves a norm at the top of the hierarchy of international legal norms—that is, a norm so undisputed, or so fundamental, that its enforcement transcends the ordinary allocation of competence among the domestic branches of government and overrides the usual presumption that the judiciary will not interfere with the acts of sovereign states taken within their own borders. In Sabbatino, the Supreme Court held that the international legal norm at issue—the international prohibition on expropriation without compensation—did not meet the foregoing standard for adjudication on the merits. The Court described the international law on expropriation at the time as “a battleground for conflicting ideologies” among members of the international community—the exact opposite of a supernorm.10 Forty years later, in Sosa, the Supreme Court addressed the jurisdictional framework governing tort actions by aliens asserting international law violations under the ATCA. Congress enacted the ATCA as part of the Judiciary Act of 1789,11 the original statute vesting the federal courts with jurisdiction. Blackstone’s Commentaries, the prevailing legal treatise at that time, enumerated three universally recognized violations of international law that gave rise to individual liability: piracy, violations of safe conduct, and offenses against ambassadors. This three-offense paradigm figured prominently in the Sosa court’s analysis. In Sosa, the Supreme Court articulated a jurisdictional threshold for ATCA cases reminiscent of its approach to the act-of-state doctrine in Sabbatino. For federal courts to exercise adjudicatory jurisdiction over these international law cases, “courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”12 Sosa concluded that the alleged arbitrary arrest and brief detention of a Mexican national in Mexico by Mexicans hired by the U.S. Drug Enforcement Agency did not meet that standard. Under Sosa, like Sabbatino, U.S. courts will not adjudicate claims for violations of an international norm unless that norm is virtually incontrovertible. Litigants may not advance to as-applied analyses unless they can survive facial challenges based on the Sosa standard. The Sosa standard brings together both the structural and individual rights strands of facial analysis. Structurally, if only supernorms justify domestic jurisdiction over individual claims for international law violations, then the judiciary is less likely to intrude on the authority of its coordinate branches. The judiciary is also less likely to trigger an adverse reaction within the global order when adjudicating only those norms that every political system recognizes as binding. From an individual rights perspective, Sosa affirmed that certain conduct could rise to the level of an actionable violation under the ATCA.

10 11 12

See id. at 430. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

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In short, then, U.S. domestic courts will adjudicate claims for international law violations only when adjudication is institutionally sound. Although, technically, Sabbatino articulated a prudential doctrine that restricts the exercise of jurisdiction by courts, whereas Sosa built prudential concerns into the very availability of jurisdiction in the first instance, both cases seek to define the parameters of the domestic judiciary’s legitimate assumption of authority in the form of jurisdiction. Though decided forty years apart, Sabbatino and Sosa are cut from the same jurisprudential cloth. From a New Haven perspective, Sabbatino and Sosa both affirm and circumscribe the role of domestic courts in protecting a core of human dignity, with that core defined by a high degree of substantive international agreement.

* The principle of judicial restraint based on supernorms finds an analogy in U.S. constitutional law, which also recognizes a hierarchy of norms. Not only is that hierarchy explicit in the Supremacy Clause; it is also present in cases in which constitutional norms themselves collide, and one must take precedence over the other. There can even be a hierarchy of claims within a single constitutional provision. For example, under the Equal Protection Clause, certain fundamental rights trigger heightened scrutiny; rights that trigger “strict scrutiny” resemble supernorms. Similarly, plaintiffs whose normative claims merit special recognition receive extra protection. A normative hierarchy also exists in judge-made constitutional or federal common law. Some longstanding precedents that are engrained in societal structures should not be overturned even if they were originally decided on dubious grounds, and, eventually, statutes may codify them. So certain norms of both the domestic and international orders are more authoritative than others. Prescriptive processes produce norms of varying levels of societal acceptance. The stronger the norm, the more able or likely it is to trump other norms and the more appropriate it may be to invoke domestic adjudicatory authority in order to enforce it. In international law cases, the Supreme Court requires norms to be so clear and strong that they can supersede even hallmark conceptualizations of sovereignty.

* In establishing that, on its face, an international law claim involves a supernorm, a plaintiff focuses on the traditional sources of international law: treaties, customary law, and general principles being the primary sources; and scholarship and judicial precedent serving as secondary sources to help identify and interpret the primary sources. Federal court opinions during the past several decades demonstrate the judiciary’s difficulty in construing those sources. Such problems stem from applying

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traditionally public norms to private actors; from the relative inexperience of domestic courts dealing with less positivist international norms as opposed to domestic legal norms; and ultimately from the judiciary’s debate over its appropriate role in international cases vis-à-vis both the national and international legal orders. Treaties should be the most straightforward international legal source for courts to apply because, among international sources, they bear the greatest resemblance to more familiar domestic statutes. But allegations that a defendant has violated norms codified by treaty often raise facial challenges over whether the treating is self-executing—that is, whether the treaty itself provides a judicially enforceable norm or requires implementing legislation before it may be enforced in a court. Unless a treaty is deemed self-executing, it cannot provide a privately enforceable right under the treaty prong of the ATCA. Moreover, even self-executing treaties do not automatically confer individually enforceable rights, as recent cases involving the consular notification provision of the Vienna Convention on Consular Relations have demonstrated.13 The facial analysis becomes even more complex when plaintiffs allege violations of customary international law norms. Jurists debate what “metric” demonstrates the existence of a customary norm, while being mindful of the quantity and quality of practice and opinio juris that give rise to customary international law. Even when plaintiffs satisfy the relevant standard, they must also bear the burden of showing that the legal norm, on its face, protects individuals, and not just sovereigns. The facial dilemma in alleging a violation of either treaty or customary law often is expressed in terms of whether the norm provides a private cause or right of action. The third primary source of international law, general principles, similarly poses difficult facial challenges to plaintiffs in federal court. As a source of law, general principles themselves have a “twilight existence.”14 The lack of an accepted definition or metric for this entire normative category supplies the backdrop for and exacerbates the difficulty plaintiffs face in trying to show that a specific legal principle prohibits the defendant’s conduct. The Sosa methodology, as applied by lower courts, tends to collapse the category of general principles into that of customary international law. Under Sosa, general principles alone are unlikely ever to demonstrate a supernorm, even if they can buttress customary law. Scholarly works may help evidence general principles, as well as customary law. But because U.S. legal scholarship often involves advocacy and may exhibit nationalist tendencies, judges have questioned the objectivity of scholarship as a means to demonstrate or articulate general principles of international law, as well as the ability of scholars accurately to identify international custom.15 13 14 15

See Chimène I. Keitner & Kenneth C. Randall, Introductory Note to Cornejo v. San Diego, 46 I.L.M. 1158 (2007). Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, 71 Am. J. Int’l L. 296 (1977). See e.g., José A. Cabranes, International Law by Consent of the Governed, 42 Val. U. L. Rev. 119, 135-36 (2007) (discussing the problem of scholars who “view their role as advocates”).

30 Kenneth C. Randall, Chimène I. Keitner, Sabbatino, Sosa, and “Supernorms”

In short, although the docket of international law cases continues to grow and diversify in U.S. federal courts, most plaintiffs cannot satisfy the threshold burden of establishing the existence of a supernorm that warrants domestic adjudication. Absent a supernorm, they cannot move their cases past the summary judgment stage. Dismissal at this stage is not about the scope of the law and how it applies to a particular case. Instead, it is about showing that the treaties, customs, or general principles, on their face, establish not just a norm but a supernorm that prohibits the defendant’s behavior and entails a private cause of action.

* How should we assess the Supreme Court’s continuing use of supernorms to delineate the judiciary’s authority with respect to both the coordinate branches of the U.S. federal government and foreign sovereigns? Consistency in Supreme Court jurisprudence is ordinarily a virtue. In theory, legal consistency means predictability. Individuals and other actors can keep their behavior within the confines of such defined parameters. At the same time, the Sabbatino-Sosa standard is sufficiently open-ended to accommodate normative change. Neither Sabbatino nor Sosa identifies a static list of norms. Over time, different norms can meet the Supreme Court’s jurisdictional threshold. The Supreme Court’s jurisprudence, however, is not without potential problems. The Sabbatino and Sosa holdings reflect a concern for the allocation of authority among the branches of the U.S. government, as well for delineating the appropriate scope of domestic adjudicative authority within the international legal order. Those institutional concerns give rise to a jurisdictional gate-keeping function for federal courts. But it is important that judicial caution in this regard does not make a rigorous facial scrutiny of international law norms “strict in theory but fatal in fact.”16 In implementing Supreme Court precedent, some federal courts have required plaintiffs to allege a norm that is even more crystallized than a supernorm. That is, they have limited the supernorm category to a normative level that virtually no international law can satisfy. For example, in Aldana v. Del Monte Fresh Produce,17 the Eleventh Circuit found no ATCA jurisdiction over claims for cruel, inhuman, or degrading treatment or punishment (CIDT) in a cursory paragraph that gave the false impression that the only legal source for a norm against CIDT is the International Covenant on Civil and Political Rights. Judge Barkett dissented from the Eleventh Circuit’s subsequent denial of plaintiffs’ motion for rehearing en banc on the grounds that the panel did not properly apply the Sosa standard. Judge Barkett recognized a broader array of legal sources:

16 17

We borrow that phrase from the Equal Protection case law, though in that context strict scrutiny may support the claim. 416 F.3d 1242 (11th Cir. 2005).

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When one looks to the sources of international law identified in Sosa—treaties, judicial decisions, the practice of governments, and the opinions of international law scholars—it is clear that there exists a universal, definable, and obligatory prohibition against cruel, inhuman, or degrading treatment or punishment, which is therefore actionable under the ATCA.18

566

Although the precise outer contours of this norm may be subject to different interpretations, that does not negate the existence of a core prohibition on CIDT that may be enforceable by domestic courts. We do not argue against the practice of federal courts proceeding with caution in this area of the law. Many of the cases involve extraterritorial behavior and parties with little or no connection to the United States, and federal courts cannot function as open-ended global tribunals. But various prudential doctrines enable judges to decline to adjudicate cases where appropriate. Misusing the Sosa standard as a substitute for these mechanisms skews the analysis of customary international law sources and risks setting the jurisdictional bar higher that is warranted. The ATCA itself does not compel a more restrictive approach. There is some irony when avowedly textualist judges reject the very statutory premise of authority accorded them by Congress in these international cases, or at least limit that authority to norms that existed in the eighteenth century. It can be curious that a jurist who might otherwise strictly construe a statute would impose extrajudicial limits on the plain statutory language of the statute. The ATCA, on its face, simply requires that the plaintiff be an alien, that the defendant have committed a tort, and that this tort have violated a U.S. treaty or the law of nations. Rendering that statute as stillborn in the modern era—limiting it to the three offenses recognized by Blackstone in the eighteenth century—flies in the face of strict statutory construction. It may well be more appropriate for such judges to rule that prudential considerations properly limit the exercise of adjudicatory jurisdiction than to rule that a customary international legal norm does not exist. The Supreme Court’s ATCA jurisprudence should not be interpreted to limit jurisdiction to a normative category closer to jus cogens norms than supernorms—the former being even more rare, and subject to even more stringent requirements, than the latter. The tempting analogy between civil jurisdiction under the ATCA and universal criminal jurisdiction may be misleading in this context. The relatively lesser burden of a civil judgment as compared to the prospect of incarceration reduces the “threat” posed by domestic adjudication to individual defendants. As we emphasize below, other prudential considerations might well tilt the balance in favor of a court declining to exercise jurisdiction over a particular claim, but these considerations should not be understood to deprive U.S courts of jurisdiction in the first instance. So while we agree that domestic jurisdiction over international norms should, in this context, be restricted to those norms with the requisite level of clarity and consensus, we would not limit civil domestic jurisdiction to the bare handful of jus cogens norms. 18

Aldana v. Del Monte Fresh Produce, 452 F.3d 1284, 1285 (11th Cir. 2006) (Barkett J., dissenting).

30 Kenneth C. Randall, Chimène I. Keitner, Sabbatino, Sosa, and “Supernorms”

Some federal judges have interpreted Sosa as requiring international norms as clear as those rendered by a centralized domestic system. That threshold simply is unsuitable to analyzing the way international norms are created and the system that creates them. The international legal order, of course, is much less centralized than a domestic legal order (particularly that of the United States). As the Second Circuit correctly recognized in a pre-Sosa case, “customary international law—as the term itself implies—is created by the general customs and practices of nations, and therefore does not stem from any single, definitive, readily-identifiable source.”19 Moreover, a practice does not have to be perfectly uniform in order to support domestic jurisdiction; regrettably, the globally accepted prohibition on torture is often honored in the breach. But just as the occurrence of a domestic offense should not undercut the underlying norm, neither should its prevalence in the international context. In ascertaining customary norms, generated from or codified by treaties, most of the relevant treaties, resolutions, and declarations are multilateral, rather than bilateral. In forging a document that many nations can sign, the terms of the treaty may be even less clear than those normally aspired to by domestic legislation. As such, customary international law cannot be defined in terms as positive in nature as those of domestic legislation, or even domestic common law. International custom develops through an evolutionary process. Its crystallization into a binding norm depends upon a variety of circumstances surrounding the custom. Requiring the type of clarity and authoritativeness of international norms that judges expect from domestic norms is misguided and simply unworkable. What matters is whether there is an identifiable core of prohibited conduct, even if disagreement and diverse perspectives persist at the periphery. Sosa’s progeny reveals confusion in judicial analysis between having jurisdiction and exercising it. The Court’s enumeration of prudential considerations that support the need for “vigilant door keeping” at the jurisdictional stage explains why the Court did not interpret the ATCA as providing subject matter jurisdiction for just any alleged international law violation. These considerations, however, should not be used to create an additional jurisdictional hurdle for plaintiffs beyond that contained in the Sosa standard itself. By focusing too heavily on the prudential considerations, rather than the degree of consensus surrounding a particular norm, judges may articulate the conclusion that the norms alleged by plaintiffs are not sufficiently codified for adjudication, when what they really are saying is that they should not exercise jurisdiction because of concerns relevant to the act-of-state and political-question doctrines. By confusing prudential considerations with jurisdictional considerations, judges may offer faulty normative analyses, claiming that a norm is not a supernorm, when they really are uncomfortable adjudicating the norm at hand.

*

19

Flores v. Southern Peru Copper, 414 F.3d 233, 248 (2d Cir. 2003).

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The New Haven School advanced a theory of the law as a communitarian, authoritative decision-making process. As Professor Reisman described in his tribute to his own teacher: “The Copernican Revolution in McDougal’s jurisprudence was in unseating rules as the mechanism of decision and installing the human being—all human beings, to varying degrees—as deciders.”20 At the heart of all the categories and conceptions of the constitutive process of authoritative decision-making lies the value of human dignity. Professor Reisman’s own scholarship so powerfully refined and employed that viewpoint that today it implicitly pervades all of international legal analysis. Reisman’s work transformed the New Haven School from an approach to the law to a fundamentally new understanding of what the law is. Adopting a New Haven School approach to evaluating whether a particular international law norm is sufficiently crystallized to warrant domestic adjudication (that is, whether it constitutes what we have called a supernorm) means, at a minimum, recognizing the role of multiple actors in constituting community norms of behavior. Assessing what weight to accord the practice and pronouncements of various actors is not unproblematic. The New Haven approach is not infinitely inclusive: only “decision-makers” make the law, even though a broader range of actors may apply the law, once made. In addition, arguments persist about the decisive weight that ought to be accorded to the United States’ own legal proclamations and practice in determining whether plaintiffs in an ATCA case have alleged the violation of a norm that meets the Sosa standard. Traditionally, the New Haven School has tended to accord more weight to U.S. practice than some feel is warranted in a pluralistic international society. United States assent should not be the sine qua non of an accepted international law violation, but in practical terms, it is unlikely that U.S. courts will make themselves available to adjudicate violations of international norms that the United States itself does not recognize. We are not advocating, nor would a New Haven approach support, unrestricted access to U.S. domestic courts for plaintiffs with grievances framed in terms of international law violations. Domestic courts, however, should not misconstrue Sosa to prevent them from adjudicating alleged violations of well-established international norms. Since World War II, international law has played an increasingly important role in protecting individual rights, irrespective of the victim’s nationality. As the Supreme Court recognized in Sosa, those protections are not limited to the eighteenthcentury norms enumerated by Blackstone. International law sources, on their face, clearly define an array of profoundly important rights that merit protection from sovereigns and sovereign actors, as well as private actors in certain instances. The implementation of these rights is consistent with the judiciary’s responsibilities in both the domestic and world legal orders. Professor Reisman’s work provides scholars, advocates, and judges with important tools for identifying these rights, thereby ensuring that domestic courts will play a key role in protecting human dignity by applying international standards in the decades ahead.

20

W. Michael Reisman, Theory About Law: Jurisprudence for a Free Society, 108 Yale L.J. 935, 937 (1999).

Chapter 31 Some Remarks about the Realistic Idealism of the European Court of Human Rights Luzius Wildhaber

I. Introduction The international human rights program is more than a piecemeal addition to the traditional corpus of international law, more than another chapter sandwiched into traditional textbooks of international law. By shifting the fulcrum of the system from the protection of sovereigns to the protection of people, it works qualitative changes in virtually every component.1

The above editorial comment on “Sovereignty and Human Rights,” written by Michael Reisman in the American Journal of International Law in 1990, very aptly expresses his thinking, his personality, and ultimately the entire New Haven School of International Law. Interestingly, it discusses above all the relationship between sovereignty and democratic government and seems to assume that once a democratic form of government exists, specific human rights will more or less automatically ensue from it. The European Court of Human Rights (ECtHR) is an institutionalized, court-like (for the taste of some perhaps too court-like), idealistic, yet realistic, forum of regional protection of human rights. In contrast to most aspects of the United Nations human rights program, the European Convention on Human Rights (ECHR) is a system that aims at generating binding and effective, rather than programmatic and soft law.2 This system will be discussed in the following chapter. II. Origins The ECHR originated in1949–1950 as an innovative, almost revolutionary creation. The intent of the majority of the founders was more political than legal: to avert totalitarianism of the Nazi, Fascist, or Communist kind, relying on just a few court 1 2

W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866, 872 (1990). Although what I say here is not expressed in the specific terminology developed by Law, Science and Policy.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 569-575.

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cases, primarily on inter-state complaints, optionally also on individual applications, supervised to a large degree by national governments. Their idea was apparently that the participating States might commit isolated illegalities, but their municipal system could take care of these minor problems themselves.3 The existence of widespread structural problems, a possible absence of a system of genuinely independent courts, the possibility of a methodical recalcitrance and resistance of certain governments and the consideration that it was perhaps less of a problem to prevent existing democracies from turning into dictatorships than to turn unfree States into democracies were not really recognized or addressed as genuine issues. III. Evolution Not surprisingly, not all the founders in the Consultative Assembly were anxious to limit the Convention to a guarantee against totalitarianism. Many had more ambitious aims and wanted an expansive and accelerating rights culture rather than a restrictive approach.4 If one looks at the wording of the Convention only, these voices lost. But if one looks at the subsequent interpretation of the Convention concepts by the ECtHR, things become more complex. Starting in the 1970s, and with rejuvenated vigor after the launching of the “new,” full-time ECtHR in 1998, the more expansive approaches seemed to prevail. However, if one looks at the notorious overload of the ECtHR, it is more accurate to speak of a casuistic expansionism manifested in the Court’s case law, sometimes hampered and sometimes buttressed by an ineluctable and inexorable dependence on, and interconnectedness with, the various national courts, parliaments and governments.5 IV. Present-Day Realities A succinct description of the ECHR system, which the Court itself has described as “a system in continuous evolution,”6 may be helpful. After the signature of the Convention in 1950, it took until 1953 for ten Western European States to accede to it. By 1990, after the fall of the Iron Curtain, 22 States had ratified. In 2008, there were 47 Member States: all of Europe, including Russia and Turkey, and excluding only Belarus and Kosovo. For years, the ECtHR has attempted to fine-tune national legal systems that work satisfactorily overall and at the same time was confronted, first, with grave breaches and second, with structural or systemic deficits that increased 3 4 5

6

Pierre-Henri Teitgen, in 5 Collected Edition of the Travaux Préparatoires of the European Convention on Human Rights 294 (1975). Danny Nicol, Original Intent and the European Convention on Human Rights, 2005 Pub. L. 152; A.W. Brian Simpson, Human Rights and the End of Empire (2001). A Europe of Rights: The Impact of the European Convention on Human Rights on National Legal Systems (Helen Keller & Alec Stone Sweet eds., 2008); Nico Krisch, The Open Architecture of European Human Rights Law, 71 Mod. L. Rev. 183 (2008). European Court of Human Rights, Annual Report 2006 11 (2007).

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the workload massively. The Court has strenuously endeavored to avoid any double standards. Yet it may be legitimate to ask whether the Court’s aims are too divergent and whether therefore the notion of double standards should indeed be so abhorrent. Expressed in figures, the Court decided only one or two cases per year in the 1960s.7 In 2008, it received more than 50,000 individual applications8 and handed down 1,880 judgments. The shift in balance toward the new Member States is obvious. In 1999, some 36 percent of all applications came from Central and Eastern Europe, the Balkans, the Baltics, and the Caucasus Region, with 56 percent in 2001, 63 percent in 2004 and 72 percent in 2007.9 The ECtHR is the most productive of all international courts and has, at the same time, the lowest budget. Despite continuous rationalization and streamlining, it cannot handle the cases as quickly as it should. At present some 100,000 individual applications are pending. Lamentably, 29 percent of the cases that will be decided in Chambers constitute backlog; that is to say, that they have been pending for more than three years.10 Paul Mahoney, the former Registrar of the Court, has termed the caseload “unmanageable;”11 Steven Greer and Andrew Williams have called “the systematic delivery of individual justice” a “doomed quest;”12 and I have commented that “the inexorable accumulation of cases, both inadmissible and substantial cases, will increasingly asphyxiate the system so as to deprive the great majority of incoming cases of any possibility of being heard within a reasonable time and therefore of any practical effect.”13 V. Evolutive Interpretation of the ECHR The ECHR guarantees classical civil and political rights. Such guarantees cannot be interpreted like a Code of Civil or Criminal Procedure or of Taxation. The guarantees are more programmatic than normative formulations, open into time and into the future, to be unfolded and developed in the light of changing conditions, changing societal values, a deteriorating environment, increasing global mobility, rapid tech7 8

9 10 11

12

13

Three cases were decided in 1968. The ECtHR’s Analysis of Statistics for 2008 shows 49,850 “allocated applications,” but on top of this number there are applications that have not yet been allocated. See European Court of Human Rights, Analysis of Statistics 2008, at 7 (2009). According to my calculations. 28 percent of all applications are from Russia. Analysis of Statistics 2008, supra note 8, at 11. Paul Mahoney, Thinking a Small Unthinkable: Repatriating Reparation from the European Court of Human Rights to the National Legal Order, in Human Rights—Strasbourg Views: Liber Amicorum Luzius Wildhaber 263, 266 (Lucius Caflisch, Johan Callewaert, Roderick Liddell, Paul Mahoney & Mark Villiger eds., 2007). Steven Greer & Andrew Williams, Human Rights in the Council of Europe and the EU: Towards “Individual,” “Constitutional” or “Institutional” Justice?, 15 Eur. L.J. 462, 469-70 (2009). Luzius Wildhaber, The European Court of Human Rights 1988-2006. History, Achievements, Reform 50 (2006) (Speech at the Opening of the Judicial Year, Jan. 22, 2004).

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nological progress and financial crisis. Moreover, in my view, it is often hardly possible to demonstrate conclusively that a specific decision is uniquely correct. Tribunals can render their judgments acceptable if these appear as the reasoned product of informed impartial choice. The task of a judge, and in particular of a judge at an international human rights court, is to deliver justice and fairness through a vision of reasonableness. The ECtHR’s hallmark has been the idea of a continuing development and the evolutive interpretation of the ECHR. Undoubtedly the autonomous and evolutive interpretation of Convention concepts and the desire to regard the Convention guarantees as something more than illusory and empty rhetoric and make them effective and tangible had standard-setting features. So it will hardly come as a surprise that neither the Court as an institution nor I personally can really believe in historical interpretation and originalism.14 We must never forget that it is a Convention we are expounding.15 In order to explain the notion of evolutive interpretation, a few illustrations may be helpful. Although Article 6 ECHR, the due process guarantee of the Convention, does not expressly mention a right of access to a court, the ECtHR recognized such a right in the Golder case, saying that the “fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.”16 Along the same lines, the ECtHR noted in the Hornsby v. Greece case that the right of access to a court “would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party.”17 The obligation to protect the right to life and the prohibition of torture require, in the ECtHR’s view, by implication that there should be an effective official investigation when individuals have been killed as a result of the use of force or have disappeared or credibly assert that they have been tortured.18 The discrimination of homosexuals and transsexuals was treated by the ECtHR as an issue of disproportionate interference with private life under Article 8 ECHR;19 in the last analysis, I believe, these are issues of each person’s freedom to choose himself or herself the aim, the sense and the direction of his or her life. In the case of Marckx v. Belgium, the discrimination

14 15 16 17 18

19

The 1969 Vienna Convention on the Law of Treaties considers historical interpretation as only “supplementary means of interpretation.” Id. arts. 32, 31(1). Borrowed from Chief Justice Marshall in McCulloch v. State of Maryland, 17 U.S. (4 Wheaton) 306, 405-07, 415 (1819). ECtHR, Golder v. the United Kingdom, A/18, ¶ 35 (1975). ECtHR, Hornsby v. Greece, Reports 1997-II 495, ¶ 40. ECtHR, McCann v. The United Kingdom, A/324, ¶ 161 (1995); Kaya v. Turkey, Reports 1998-I 329, ¶ 105; Assenov v. Bulgaria, Reports 1998-VIII 3290, ¶ 102; Tanrikulu v. Turkey, Reports 1999-IV, ¶ 101; Isayeva v. Russia, EuGRZ 2006 32, 37-38, ¶¶ 208-213. ECtHR, Dudgeon v. United Kingdom, A/45, ¶¶ 60-61, 69 (1981); Norris v. Ireland, A/142, ¶ 46 (1988); Modinos v. Cyprus, A/259, ¶ 25 (1993); Christine Goodwin v. The United Kingdom, Reports 2002-VI, ¶¶ 74, 89-93; Karner v. Austria, Reports 2003-IX, ¶ 26; E.B. v. France, Reports 2008, no. 43546/02.

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of illegitimate children was found to constitute violations of Articles 8 and 14 ECHR and of Article. 1 of Protocol No. 1 and to lack objective and reasonable justification.20 VI. Individual, Constitutional and Administrative Justice Now the moment has probably come where we should ask where the ECtHR stands and where it is headed. The intention of the founders of the Convention to avert totalitarianism and to preserve democracy is of course still a very legitimate aim of the ECHR. However, this is hardly how the system looks sixty years later. While there have been many important cases, only a few have been so exceptional as to influence, per se, the fate of a European democracy. The Greek Military Junta Case21 may qualify, perhaps also the cases which recognized the existence of a democracy’s right to defend itself against its enemies, such as Rekvényi, Refah Partisi or Ždanoka.22 The founders of the Convention may have intended to contribute to the prevention of war in Western and perhaps even in the whole of Europe. The fifty years of the ECtHR’s existence have, however, witnessed much more normalcy than exceptionalism. To a large extent, the ECtHR has decided the same kind of issues than a domestic Supreme or Constitutional Court, according to similar principles, exploring whether the aims invoked to restrict human rights are legitimate, whether the restrictions are grounded in a sufficient legal basis, and whether they are proportionate and necessary in a democratic society.23 Because of that similarity, the ECtHR might be qualified as a “quasi-Constitutional Court sui generic.”24 Despite the similarity, the ECtHR remains of course an international tribunal. This is why it operates with such doctrines as subsidiarity and margin of appreciation and why its judgments are only declaratory and are not directly executory in municipal law, unlike those of the European Court of Justice. If we take up the discussion among international law experts about the so-called “constitutionalization” of international law, we would in my view have to count democracy and human rights among the formative principles of contemporary international law. Also in that (second) sense the ECtHR could be classified as a “quasiConstitutional Court.” There are authors like Steven Greer who have still another (third) approach.25 They speak of the constitutionalization of the ECtHR, and use this term to mean that only the most essential and grave issues should be submitted to it. This could 20 21 22 23 24 25

ECtHR, Marckx v. Belgium, A/31, ¶¶ 31-34 (1979). Georg Nolte & Stefan Oeter, in 2 Encyclopedia of Public International Law 14648 (Rudolf Bernhardt ed., 1995). ECtHR, Rekvényi v. Hungary, Reports 1999-III; Refah Partisi v. Turkey, Reports 2003-II; Ždanoka v. Latvia, Reports 2006-IV. Alec Stone Sweet and Jud Matthews speak of Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat’l L. 27 (2008). Cf. Wildhaber, supra note 13, at 113. Steven Greer, Constitutionalizing Adjudication under the European Convention on Human Rights, 23 Oxford J. Legal Stud. 405 (2003).

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be understood as a device to respond to the insoluble workload problem, which in turn leads to an insidious undermining of the credibility of the Court. It could also be understood as an attempt to distinguish between more or less absolute Convention guarantees, irrespective of workload issues. To complicate matters even more, complaints alleging administrative and governmental partiality and arbitrariness have led to a steady increase of right to property cases before the ECtHR. At present 17 percent of all applications are right to property cases. If the Court managed to cope with its workload of more than 50,000 applications per year, then it would contribute not only to the protection of property, but also to the reduction of arbitrariness. Looking at recent complaints about inadequate compensation for expropriations, or about hidden or de facto expropriations, or about excessively high fines or fees, one should probably ask whether the ECtHR is becoming not only a quasi-Constitutional Court of Europe, but even (in a fourth sense) a “quasi-Supreme Administrative Court of Europe,” in charge of standing up against arbitrariness and excesses of state authorities.26 In essence, there seems to be a development to treat the notion of arbitrariness as identical with the violation of human rights guarantees under the ECHR. The described trend seems to confirm the idea advocated by some human rights lawyers that international human rights law is all-inclusive and therefore leaves no human rights free zones.27 Indeed it would constitute an enormous success if the ECtHR could tame the arbitrariness of some state administrations and tribunals. There remains the anxious question what would happen if the workload of the Court further exploded, and that must of course be a very anxious question indeed. VII. Conclusion Almost inevitably, the discussion about “constitutional justice” is an attempt to save the ECtHR from its chronic overload and to redefine its priorities.28 There are basically three alternatives for the Court’s future: – to continue the present “muddling through” approach, to further ignore the delays and to hope that the loss of credibility will not be too damaging; 26

27

28

Cf. Luzius Wildhaber & Isabelle Wildhaber, Recent Case Law on the Protection of Property in the European Convention on Human Rights, in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer 657, 67476 (Christina Binder, Ursula Kriebaum, August Reinisch & Stephan Wittich eds., 2009). Jukka Viljanen, The European Court of Human Rights as a Developer of the General Doctrines of Human Rights Law 25 (2003). And see the subtle discussion by Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights 192-226 (2009). Cf. Christoffersen, supra note 27; Steven Greer, The European Convention on Human Rights. Achievements, Problems and Prospects (2006); Mahoney, supra note 11; Paul Mahoney & Jonathan Sharpe, The Legacy of Carlo Russo: Creation of a Supreme European Court of Human Rights, in Teis Besikeiianioje Europoje / Law in the Changing Europe / Le Droit dans une Europe en Changement: Liber Amicorum Pranas Kris 281 (2008).

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to give up the ideology of unlimited individual justice, to let realism prevail and to restrict access to the Court along criteria of constitutional justice; or to place responsibility squarely inside the Court, to persuade the Judges that not only must they render the Convention guarantees effective and real, but that they should reappraise the priorities and the management of the ECHR system so as to make this system effective and real as well.

The first alternative is likely to dominate the imminent future. The future of the Court would in my opinion look brighter if the second and third alternatives could also be allowed to play a role, so that the Court and the Convention could in fact “work[] qualitative changes in virtually every component.”29

29

Reisman, supra note 1, at 872.

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Part IV Making and Applying Investment and Trade Law

Chapter 32 Investments, Fair and Equitable Treatment, and the Principle of “Respect for the Integrity of the Law of the Host State”: Toward a Jurisprudence of “Modesty” in Investment Treaty Arbitration Guillermo Aguilar Alvarez Santiago Montt

But even in those countries which every foreigner may freely enter, the sovereign is supposed to allow him access only upon this tacit condition, that he be subject to the laws … The foreigner cannot pretend to enjoy the liberty of living in the country without respecting the laws …1 The sovereign ought not to grant an entrance into his state for the purpose of drawing foreigners into a snare: as soon as he admits them, he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him.2 —Emer de Vattel

I. Introduction Investment treaty arbitration “combines a public law system of State liability with private arbitration.”3 Some consider that adjudication of international investment disputes does not substantially differ from decision-making by public law courts at the domestic level: arbitrators review state action for unlawfulness and inappropriateness, and ascertain whether the political branches of government have not improperly sacrificed investors’ interests when pursuing the public interest.4 The adjudication of investor-state disputes calls for a delicate balance between investors’ expectations and the states’ quest to achieve the common good. As Craig notes, in the modern state, laws and regulations are constantly adopted with the ex1 2 3

4

Emer de Vattel, 2 The Law of Nations 312, 315 (Liberty Fund 2008) (1758). Id. at 313. Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/04/14, ¶ 160 (Dec. 8, 2008). Although the tribunal refers here to the ICSID Convention, we think the statement applies to all investment treaty arbitration. See Gus Van Harten, Investment Treaty Arbitration and Public Law 10, 58-71 (2007).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 579-605.

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plicit or implicit aim of “benefiting one section of the population at the expense of another. It is a matter of conscious legislative policy.”5 Striking this balance is facilitated where the adjudicator acts with restraint and modesty. Justice Breyer’s words, articulated in the context of constitutional adjudication, are equally relevant to international investment arbitration: A judge, when interpreting such open-ended provisions, must avoid being “willful, in the sense of enforcing individual views.” A judge cannot “enforce what he thinks best.” “In the exercise of ” the “high power” of judicial review, says Justice Louis Brandeis, “we must be ever on our guard, lest we erect our prejudices into legal principles.”6

Michael Reisman’s work, as a member of numerous international investment arbitration tribunals, perfectly represents the jurisprudence of restraint and modesty. We would like here to recall the contribution to international investment law of two awards that bear his signature: Fraport7 and GAMI.8 Both share, as a unifying theme, due regard for the legal system of the defendant states, but without undermining conventional international law on the protection of investors and their investments. Explicitly in Fraport and implicitly in GAMI, these awards recognize a fundamental policy foundation of the regime of state liability in international investment law: “Respect for the integrity of the law of the host state,”9 without a chilling effect on economic activity and foreign investment. We recognize that Professor Reisman did not preside over these two arbitral tribunals. However, these decisions illustrate the application of some of the New Haven School’s jurisprudential lessons, particularly that of “goal clarification.” As explained by Professor Reisman, “New Haven recommends that all who perform decision functions examine the demands of particular actors in terms of their congruence with the 5 6

Paul P. Craig, Compensation in Public Law, 96 Law Q. Rev. 413, 450 (1980) (emphasis added). Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 18 (2005) (internal citations omitted). Justice Breyer explains judicial modesty in the following terms: That modesty embodies an understanding of the judges’ own expertise compared, for example, with that of a legislature. It reflects the concern that a judiciary too ready to “correct” legislative error may deprive “the people” of “the political experience and the moral education that come from … correcting their own errors.” It encompasses that doubt, caution, prudence, and concern—that state of not being “too sure” of oneself—that Learned Hand described as the “spirit of liberty.” In a word, it argues for traditional “judicial restraint.”

7 8 9

Stephen Breyer, Our Democratic Constitution, The Fall 2001 James Madison Lecture: New York University Law School October 22, 2001, http://www.supremecourtus.gov/ publicinfo/speeches/sp_10-22-01.html (last visited Feb. 15, 2009) (internal citations omitted). Fraport AG Frankfurt Airport Services Worldwide v. Philippines, ICSID Case No. ARB/03/25, ¶ 402 (Aug. 16, 2007) [hereinafter Fraport]. GAMI Investment Inc. v. Mexico, UNCITRAL (Nov. 15, 2004) [hereinafter GAMI]. Fraport, supra note 7, ¶ 402.

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

common interest, expressed as preferred patterns of production and distribution of every value within a system of stable minimum order.”10 What does this mean for international investment law? To follow Professor Reisman, the system “must balance claims for respect for the special requirements of national communities, which is one of its central postulates, against the need for sustaining the rule of law so that economic activity can continue to flow freely about the globe.”11 Hence, even if BITs require “that an appropriately operational governmental framework must be in place”12—including impartial courts, a legally restrained bureaucracy, and an appropriate legal, administrative, and regulatory framework, among other elements13—this does not mean that “every governmental adjustment to this normative framework that adversely affects the conditions for foreign investment will constitute an expropriatory act.”14 In this essay, we analyze two pillar concepts that implicate the relationship between international and domestic law in investment treaty arbitration: (i) the concept of investment and the obligation of investors to comply with domestic law; and (ii) the fair and equitable treatment (FET) standard and the obligation of states to abide by their own legal rules. Section II reviews Fraport, which deals with the former, and Section III explores how GAMI addresses the latter. We conclude that the findings of Professor Reisman and his colleague arbitrators in these matters provide persuasive guidance to future tribunals in the form of a jurisprudence of modesty. II. Fraport and the Investor’s Compliance with Domestic Law A. The Problem of Circularity of Property Rights Fraport deals with an old question of international law: what protection are foreign investors entitled to when their investments do not comply with the law of the host state and the government reacts by ordering termination?15 General international law (GIL) did not traditionally provide a satisfactory answer to the circularity presented

10

11 12 13 14 15

W. Michael Reisman, The View from the New Haven School of International Law, 86 Am. Soc’y Int’l L. Proc. 118, 123 (1992) (emphasis added); see also Lung-chu Chen, An Introduction to Contemporary International Law. A Policy-Oriented Perspective 18 (2d ed. 2000) (stressing that the explicit postulation of public order goals and the intellectual task of goal clarification are among the essential dimensions of the policy-oriented school). W. Michael Reisman, International Arbitration and Sovereignty, 18 Arb. Int’l 231, 234-35 (2002). W. Michael Reisman & Robert D. Sloane, Indirect Expropriation and Its Valuation in the BIT Generation, 74 Brit. Y.B. Int’l L. 115, 117 (2004). Id. Id.; see also id. at 119 n.16. See Theodor Meron, Repudiation of Ultra Vires State Contracts and the International Responsibility of States, 6 Int’l & Comp. L.Q. 273 (1957).

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by this question: property rights establish limits to state conduct, yet the state itself determines those limits.16 Specifically, GIL does not provide a substantive body of rules that defines rights, their nature, scope, and features.17 On the contrary, as the Permanent Court of International Justice (PCIJ) held in the Panevezys-Saldutiskis case, “in principle, the property rights and the contractual rights of individuals depend in every State on municipal law;”18 or, as explained in the Restatement (Second) of Foreign Relations Law, “[r]ights of ownership in property located in the territory of a state are normally determined by the law of the state.”19 The relevance of domestic law in international adjudication was brilliantly exposed by Judge Morelli in his separate opinion in the Barcelona Traction case. According to Judge Morelli, the protection of international law applies “to rights as conferred by the municipal legal order.”20 In other words, “[i]t is on the hypothesis that the municipal order has adopted this attitude, optional in international law [that is, creation of rights], that the international rule imposes certain obligations on the State.”21 Judge Morelli explained that the international rules of which I now speak refer to that same legal order for the purpose of performing a preliminary task, that of determining what interests are to be the subject of the protection envisaged. This is so in that the international rule postulates a certain at16

17 18 19 20

21

This is also a problem in domestic public law. With reference to the United States, see, for example, David A. Dana & Thomas W. Merrill, Property: Takings 62-68 (2002); Thomas W. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 916-54 (2000); Joseph William Singer, Property Law: Rules, Policies, and Practices 1174 (1993); William A. Fischel, Regulatory Takings: Law, Economics And Politics 66 (1995); and Laurence Tribe, Constitutional Choices 169 (1985). With reference to Germany, see, for example, Gunnar Folke Schuppert, The Right of Property, in The Constitution of the Federal Republic of Germany 107, 108-11 (Ulrich Karpen ed., 1988), and Otto Kimminich, La Propiedad en la Constitución Alemana, in Propiedad, Expropiación y Responsabilidad: Derecho Comparado Europeo 151, 151-52 (Javier Barnés ed., 1995). With reference to Spain, see Javier Barnés, El Derecho de Propiedad en la Constitución Española de 1978, in Propiedad, Expropiación y Responsabilidad: La Garantía Indemnizatoria en el Derecho Europeo y Comparado 25, 27 (Javier Barnés ed., 1995). See Zachary Douglas, The Hybrid Foundation of Investment Treaty Arbitration, 74 Brit. Y.B. Int’l L. 151, 197 (2004). Panevezys-Saldutiskis Ry. (Est. v. Lith.), 1939 P.C.I.J. (ser. A/B) No. 76, at 16 (Feb. 28). Restatement (Second) of Foreign Relations Law § 185 cmt. f (1965). Barcelona Traction, Light & Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. Rep. 4, 234 (Morelli, J., separate opinion). That is, international law protects aliens’ interests “if those interests already enjoy a certain degree of protection within the municipal legal system. This means that the international rule refers to the municipal legal order in that, to impose upon a State a particular obligation, it presupposes a certain freely adopted attitude on the part of the legal order of that State.” Id. at 233-34. Id. at 234-35.

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

titude on the part of the State legal order, inasmuch as it has regard solely to interests which, within that legal order, have already received some degree of protection through the attribution of rights or other advantageous personal legal situations (faculties, legal powers or expectations): an attitude on the part of the State legal order which in itself is not obligatory in international law.22 … [T]he fact that the rules of international law in question envisage solely such interests of foreigners as already constitute rights in the municipal order is but the necessary consequence of the very content of the obligations imposed by those rules; obligations which, precisely, presuppose rights conferred on foreigners by the legal order of the State in question.23

As Judge Morelli also observed, we should not be surprised or concerned by this renvoi to domestic law: There is nothing abnormal in this reference of an international rule to the law of a given State. It is wholly untenable to object, as the Belgian Government has done, that in this way the international responsibility of the State is made to depend upon categories of municipal law, thus enabling a State to set up the provisions of its own legal order as a means of evading the international consequences of its acts. In reality, no subordination of international responsibility, as such, to the provisions of municipal law is involved; the point is rather that the very existence of the international obligation depends on a state of affairs created in municipal law, though this is so not by virtue of municipal law but, on the contrary, by virtue of the international rule itself, which to that end refers to the law of the State.24

Against this background we now ask: are investors entitled to protection under bilateral investment treaties (BITs) when their investments do not comply with the law of the host state?25

22 23 24 25

Id. at 233. Id. Id. at 234 (emphasis added). In the past, it was not unusual to find decisions in which tribunals or commissions did not confer protection upon illegal investments. See, for example, Aguilar-Armory and Royal Bank of Canada Claims (U.K. v. Costa Rica), 1923 R.I.A.A. 369, an arbitration in which the Arbitrator—former President and U.S. Supreme Court Chief Justice, William H. Taft—concluded that the invalidation of a contract in accordance with domestic law was not an internationally wrongful act: My award … is that the Law of Nullities in decreeing the invalidity of the Amory concession worked no injury to the Central Costa Rica Petroleum Company, Ltd., the assignee of the concession, and the British Controlled Oil Fields, Ltd., its sole stockholder, of which Great Britain can complain, because the concession was in fact invalid under the Constitution of 1917.

Id. at 399 (emphasis added).

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B. Fraport: Facts and Answers 584

Fraport recently considered the consequences under international law of the illegality of an investment under domestic law.26 Dealing with a case that continental lawyers would refer to as “fraude à la loi,”27 the tribunal decided that failure to comply with the BIT requirement that the investment be made in accordance with domestic law disentitles the investor from protection under the treaty. The Fraport tribunal reached this conclusion as a matter of jurisdiction and by majority vote.28 The facts of the case are complex, but can be summarized as follows. Fraport AG Frankfurt Services Worldwide (Fraport) acquired control of the Philippine International Air Terminals Co., Inc. (Piatco), which held the concession rights for the construction and operation of a new passenger terminal—Terminal 3—for the main airport in Manila. Fraport made this investment even though the Constitution of the Philippines does not allow foreigners to own more than 40 percent of the capital of a public utility and notwithstanding the Anti-Dummy Law (ADL), which prohibits foreigners from being involved in the management, operation, administration, and control of a public utility.29 In order to evade the application of these mandatory norms, Fraport used a complex scheme. It directly acquired 30 percent of Piatco, and indirectly, through a cascade of local companies, an additional 31.44 percent.30 Although these arrangements were not considered illegal per se, Fraport also entered into “secret shareholders agreements”—the essence of the fraude à la loi in this case31—that gave it managerial control over Piatco.32

26

27 28 29 30 31 32

The Fraport tribunal is neither the first nor the last tribunal to decide on this issue. See, e.g., Rumeli Telekom A.S. v. Kazakhstan, ICSID Case No. ARB/05/16, ¶ 319 (July 29, 2008) [hereinafter Rumeli Telekom]; Desert Line Projects LLC v. Yemen, ICSID Case No. ARB/05/17 ¶¶ 97-123 (Feb. 6, 2008) [hereinafter Desert Line]; Tokios Tokelės v. Ukraine, ICSID Case No. ARB/02/18, ¶ 97 (July 26, 2007) [hereinafter Tokios Tokelės (Merits)]; Saipem S.p.A. v. Bangladesh, ICSID Case No. ARB/05/07, ¶ 79 n.11 (Mar. 21, 2007); Mytilineos Holdings S.A. v. The State Union of Serbia & Montenegro and the Republic of Serbia, UNCITRAL, ¶¶ 147-57 (Sept. 8, 2006); Inceysa Vallisoletana S.L. v. El Salvador, ICSID Case No. ARB/03/26, ¶ 203 (Aug. 2, 2006) [hereinafter Inceysa]; L.E.S.I. S.p.A. v. Algeria, ICSID Case No. ARB/05/3, ¶ 83(iii) (July 12, 2006) [hereinafter, L.E.S.I. (Jurisdiction)]; Bayindir Insaat Turizm Ticaret Ve Sanayi A.Ş. v. Pakistan, ICSID Case No. ARB/03/29, ¶ 109 (Nov. 15, 2005); Salini Costruttori S.P.A. v. Morocco, ICSID Case No. ARB/00/4, ¶ 46 (July 23, 2001). That is: the evasion of mandatory norms. L. Yves Fortier and Michael Reisman formed the majority, with Bernardo M. Cremades dissenting. Fraport, supra note 7, ¶ 120; see also id. ¶ 309. Id. ¶¶ 116-117. Id. ¶ 355 (“The Tribunal’s concern here is not with Fraport’s quantitative equity; it is with the secret shareholder agreements.”). Id. ¶ 125.

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

Piatco began construction of the terminal in June 2000. During 2001, a rival group operating Terminal 2 brought a legal action against Piatco. In May 2003, the Philippine Supreme Court decided that the concession contract was null and void because of illegality during the adjudication of the concession contract to Piatco unrelated to the issue of Fraport’s foreign control over Piatco.33 As a consequence of this decision, in December 2004 the Philippine government took possession of Terminal 3. At the time, the government assured Fraport that it would receive just compensation in accordance with Philippine law, and indeed paid a provisional amount of U.S.61,343,175.77.34 In September 2003, Fraport filed an ICSID request for arbitration against the Philippines, alleging breach of the BIT between Germany and the Philippines and seeking U.S.425 million in damages. The Philippines challenged the jurisdiction of the tribunal, arguing that the “protections afforded by the BIT at issue do not extend to investments made in violation of Philippine law.”35 More specifically, the Philippines argued that Fraport had “structured its investment in PIATCO in a manner that was intended to evade Philippine nationality and anti-dummy laws.”36 In its decision, the majority concluded that it lacked jurisdiction over the case, and it reached this conclusion by examining both domestic and international law. The majority was persuaded that Fraport knowingly and willingly organized its investments in violation of the Philippine prohibition of foreign managerial control of public utilities:37 Fraport was consciously, intentionally and covertly structuring its investment in a way which it knew to be a violation of the ADL [Anti-Dummy Law]. … Fraport secretly designed its investment in the project so as to have that prohibited management and control.38

The award notes that “Fraport had been fully advised and was fully aware of the ADL and the incompatibility with the ADL of the structure of its investment which it planned and ultimately put into place with the secret shareholder agreements.”39 In sum, “Fraport planned and knew that its investment was not ‘in accordance with the law.’”40 The award then examined the consequences of this domestic illegality under the rules of the BIT. It concluded that the international legal consequence of the claimant’s conduct was that the tribunal lacked jurisdiction to adjudicate the dispute. As noted by the tribunal, Article 1(1) of the BIT unambiguously establishes that “[t]he 33 34 35 36 37 38 39 40

Id. ¶¶ 215-18, 400. Section 2-A of the Anti-Dummy Law is transcribed in id. ¶ 349. Id. ¶¶ 237-39. Id. ¶ 285. Id. ¶ 290. Id. ¶ 352. Id. ¶ 323. Id. ¶ 327; see also id. ¶¶ 315, 319. Id. ¶ 355; see also id. ¶ 401.

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term ‘investment’ shall mean any kind of asset accepted in accordance with the respective laws and regulations of either Contracting states”.41 In addition, Article 2(2) of the BIT, Article 2 of the Protocol to the Agreement, and the Philippines’ Instrument of Ratification, all insisted—in different terms, but in the same spirit—that the investments must comply with the Constitution, laws, and regulations of the host state.42 From a general perspective, the majority decided in favor of the Philippines for four reasons: first, as noted, because the unambiguous text of the BIT requires investments to be conducted in accordance with domestic law; second, based on the egregious breach of domestic law by the investor—(in the tribunal’s words, “the comportment of the foreign investor, as is clear from its own records, was egregious and cannot benefit from presumptions which might ordinarily operate in favour of the investor;”43 third, because Fraport concealed its conduct from the Philippine government, stripping the investor of any potential estoppel defense;44 and, fourth, based on the essential policy goal of respect for the integrity of the law of the host state. As the tribunal explained: As for policy, BITs oblige governments to conduct their relations with foreign investors in a transparent fashion. Some reciprocal if not identical obligations lie on the foreign investor. One of those is the obligation to make the investment in accordance with the host state’s law. It is arguable that even an investment which is not made in accordance with host state law may import economic value to the host state. But that is not the only goal of this sector of international law. Respect for the integrity of the law of the host state is also a critical part

41 42 43 44

Id. ¶ 335. Id. ¶ 337. Id. ¶ 397. The tribunal concluded: The cumulative actions of a host government may constitute an informal ‘acceptance’ of a foreign investment that otherwise violates its law … The issue here, however, is fact. The Claimant, knowing of the violation of the ADL, consciously concealed it, such that any actions that might otherwise have been viewed by a foreign investor in good faith as endorsements by the Philippine government cannot be deemed to have cured the violation or estopped the Government.

Id. ¶ 387. The conduct of Fraport seems also to have been shocking during the arbitral proceedings: There is a further troubling factor. Despite requests for document production, the obvious relevance of these secret documents to the Respondent’s jurisdictional objection, and a stern warning by the President of the Tribunal early in the arbitration that adverse consequences could be drawn from the failure to produce such documents, it was only in the course of the hearing that the existence of many of these documents became known. It was only at the insistence of the President of the Tribunal at that moment that they were finally produced. In that regard, it lies ill in Fraport’s mouth to allege, in its defense, that the Philippines had not “ever taken any action under its own laws to charge Fraport with any violation of those laws.”

Id. ¶ 400.

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

of development and a concern of international investment law. That said, the Tribunal’s decision in this matter does not rest on policy. It is the language of the BIT which is dispositive and it is unequivocal in this matter.45

In its démarche, the tribunal decided to seriously take into account domestic law issues. The tribunal concurred with the holding in Inceysa that “as the [domestic] legality of the investment is a premise for this tribunal’s jurisdiction, the determination of such legality can only be made by the tribunal hearing the case, that is, by this arbitral tribunal.”46 At the same time, the tribunal rejected the claimant’s attempts to drive a wedge between the domestic and international legal orders. More specifically, the claimant had argued that “[e]ven if there could be said to be an issue as to whether the Philippine laws were complied with … it could be of only municipal, not international significance.”47 The tribunal disagreed, observing that: The BIT is, to be sure, an international instrument, but its Articles 1 and 2 and article 2 of the Protocol effect a renvoi to national law, a mechanism which is hardly unusual in treaties and, indeed, occurs in the Washington Convention. A failure to comply with the national law to which a treaty refers will have an international legal effect.48

In sum, given both Fraport’s flagrantly inappropriate conduct during the arbitral process and the BIT’s express requirement that investments be made “in accordance with the law” of the host state, the majority of the tribunal found that it lacked jurisdiction over the dispute. Following Inceysa,49 the Fraport decision established a valuable precedent in international investment law, asserting “the integrity of the law of the host state”50 as a “critical part of development and a concern of international investment law.”51 C. Open Questions in International Investment Law Both Inceysa and Fraport involved serious breaches of domestic law in the making of the investment. To the extent that the egregiousness of the investors’ conduct is at the core of these decisions, the findings of both tribunals may be read narrowly. These awards, for instance, may not be apposite to different fact patterns, for instance, where the BIT does not expressly require investments to be made “in accordance

45 46 47 48 49 50 51

Id. ¶ 402. Id. ¶ 391 (citing Inceysa, supra note 26, ¶ 209). Fraport, supra note 7, ¶ 394. Id. See Inceysa, supra note 26, ¶¶ 207, 236-37. Fraport, supra note 7, ¶ 402. Id. ¶ 402.

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with domestic law,”52 or where the conduct of the investor is not comparably egregious. These awards also do not conclusively determine whether the state’s defense in this regard must be a matter of jurisdiction. Recourse by the state to domestic law as a defense has historically been a matter of concern in international law53—and for good reason. As Mr. Cremades noted in his dissent in Fraport, “the abuse of its own law by State parties is a perennial problem in investment and international commercial arbitration.”54 Yet neither BITs nor GIL provide a complete normative framework for the adjudication of all investment disputes.55 Where the existence of a right may only be established by reference to domestic law, an examination of the municipal legal system at issue necessarily precedes any investigation into the protection of that right under BITs or GIL: “It is only once a right has been created and recognized by domestic law that standards of investment protection under the treaty take over in regulating a State’s behaviour towards those rights.”56 Moreover, BITs are conventional international law created by negotiation between sovereigns. As such, states define the scope of coverage relative to investment protection under these treaties. They may do so by defining what constitutes a covered “investment,” by including reservations to the application of the different standards of protection, or by establishing general exceptions (that is, national security). Where the underlying BIT does not expressly require that an investment conform to domestic law, treatment of illegality as a jurisdictional issue, as in Fraport and In52

53

54 55

56

In April 2009, a tribunal found that BIT protection is not available unless the investment is made in accordance with the laws of the host state. Interestingly, the tribunal found this requirement to be implicit in all BITs. See Phoenix Action Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, ¶¶ 101, 114 (Apr. 15, 2009). See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 3, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10, Annex (Dec. 12, 2001), reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries 61 (2002) (“The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.”) [hereinafter ILC’s Draft Articles and Commentaries]; see also Vienna Convention on the Law of Treaties art. 27, May 23, 1969, 1155 U.N.T.S. 331 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”). Fraport, supra note 7, ¶ 29 (Cremades, dissenting). See Andrew Newcombe & Lluís Paradell, Law and Practice of Investment Treaties: Standards of Treatment 95 (2009) (“[T]he investment rights and state conduct at issue in IIA [international investment agreements] disputes arise in the context of legal relationships governed by domestic law. Hence the IIA and international law leave these questions to be decided, in principle, by the law of the host state.”). International Investment Arbitration: Substantive Principles 69-70 (Campbell McLachlan et al eds., 2007); see also Douglas, supra note 17, at 197-98; Andrew Newcombe, The Boundaries of Regulatory Expropriation in International Law, 20 ICSID Rev. 1, 28 (2005).

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

ceysa, may be controversial. In Plama, for instance, the tribunal joined examination of the issue to the merits,57 and eventually concluded that an investment obtained by fraud and misrepresentation on the part of the investor could not receive protection under the Energy Charter Treaty (ECT):58 The investment in Nova Plama was, therefore, the result of a deliberate concealment amounting to fraud, calculated to induce the Bulgarian authorities to authorize the transfer of shares to an entity that did not have the financial and managerial capacities required to resume operation of the Refinery. … [T]he Tribunal is of the view that this behavior is contrary to other provisions of Bulgarian law and to international law and that it, therefore, precludes the application of the protections of the ECT.59

The tribunal expressly noted that the absence of language in the ECT connecting the definition of investments to domestic law did not alter the conclusion: Unlike a number of Bilateral Investment Treaties, the ECT does not contain a provision requiring the conformity of the Investment with a particular law. This does not mean, however, that the protections provided for by the ECT cover all kinds of investments, including those contrary to domestic or international law. … [T]he ECT should be interpreted in a manner consistent with the aim of encouraging respect for the rule of law. The Arbitral Tribunal concludes that the substantive protection of the ECT cannot apply to investments that are made contrary to law.60

In general, it seems more sensible to treat less extreme forms of illegality as matters of substance. At least two reasons militate in favor of this approach. On the one hand, consideration of complex factual and legal questions linked to the merits of the dispute may be required. Frequently, these are questions for which the nature of a jurisdictional investigation would be ill-suited.61 On the other hand, the jurisdictional approach forces the invention of prudential corrections to minimize the draconian effect of otherwise successful jurisdictional objections. For example, when following this trend, tribunals have demanded more than “minor errors,”62 “bureaucratic formalities,”63 and “mere formalism[s],”64 or re57

58 59 60 61 62 63 64

Plama Consortium Limited v. Bulgaria, ICSID Case No. ARB/03/24, ¶ 77-78 (Aug. 27, 2008) [hereinafter Plama] (emphasis added); see also Plama Consortium Ltd. v. Bulgaria, ICSID Case No. ARB/03/24, ¶¶ 126-30, 229-30 (Feb. 8, 2005). In the dispositive part of the award, the tribunal decided that “Claimant is not entitled to any of the substantive protections afforded by the ECT.” Plama, supra note 57, ¶ 325. Id. ¶ 135. Id. ¶¶ 138-139. See Douglas, supra note 17, at 212; Newcombe & Paradell, supra note 55, at 95-96. Tokios Tokelės v. Ukraine, ICSID Case No. ARB/02/18, ¶ 86 (Apr. 29, 2004) [hereinafter Tokios Tokelės (Jurisdiction)]; see also Fraport, supra note 7, ¶ 36 (Cremades, dissenting). Tokios Tokelės (Merits), supra note 26, ¶ 97. Desert Line, supra note 26, ¶ 104.

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590

quired a “breach of fundamental legal principles of the host country,”65 or conduct that is “illegal per se.”66 In consequence, treating mild forms of domestic illegality as a matter for the merits appears to be a more balanced and less artificial approach, as well as one that is consistent with the object and purpose of BITs and their overall legal architecture.67 Note that this does not relieve investors of the obligation to comply with domestic law. As Cremades observed, “[i]llegal conduct by the investor might well excuse or limit any liability of the State Party in an arbitration pursuant to the BIT, depending on the circumstances.”68 From a merits perspective, the consequences of domestic illegality may be a function of the claim brought by the investor. A claim for expropriation should not prevail if the “investment” does not exist in the first place. The Encana case represents a good example of this situation.69 As stated by the tribunal, while the right to a refund of value-added taxes (VAT) would fit in the definition of investment,70 whether the claimant was entitled to any such refund was primarily an issue of Ecuadorian law. Thus, the tribunal concluded that: The relevant clause, Article XIII(7) of the BIT [Canada-Ecuador], provides only a tribunal exercising jurisdiction under the BIT ‘shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law’. Unlike many BITs there is no ex65 66

See, e.g., L.E.S.I. (Jurisdiction), supra note 26, ¶ 83(iii); Desert Line, supra note 26, ¶ 104; Rumeli Telekom, supra note 26, ¶ 319. Tokios Tokelės (Jurisdiction), supra note 62, ¶ 86. Note that in Fraport, supra note 7, ¶ 396, the tribunal also felt the need to mention some of these correctives: When the question is whether the investment is in accordance with the law of the host state, considerable arguments may be made in favour of construing jurisdiction ratione materiae in a more liberal way which is generous to the investor. In some circumstances, the law in question of the host state may not be entirely clear and mistakes may be made in good faith. An indicator of a good faith error would be the failure of a competent local counsel’s legal due diligence report to flag that issue. Another indicator that should work in favour of an investor that had run afoul of a prohibition in local law would be that the offending arrangement was not central to the profitability of the investment, such that the investor might have made the investment in ways that accorded with local law without any loss of protected profitability. This would indicate the good faith of the investor.

67

68 69 70

This was indeed the general position adopted by Cremades in his dissenting opinion in Fraport: “As a matter of principle, therefore, the legality of the investor’s conduct is a merits issue.” Fraport, supra note 7, ¶ 39; see also id. ¶ 38. (“[T]here is no question of an arbitral tribunal passing over or treating lightly any illegal conduct by the investor. The question is the proper time and context to consider and evaluate the proof and consequences of illegality.”). Id. ¶ 14. Encana Corporation v. Ecuador, UNCITRAL (Feb. 3, 2006) [hereinafter EnCana]. See id. ¶¶ 180-83. Interestingly, in a sibling case, Occidental Exploration and Production Company v. Ecuador, London Court of International Arbitration [LCIA] Case No. UN3467 (July 1, 2004), the tribunal reached the opposite conclusion on this point. Id. ¶ 86 [hereinafter OEPC].

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

press reference to the law of the host State. However for there to have been an expropriation of an investment or return (in a situation involving legal rights or claims as distinct from the seizure of physical assets) the rights affected must exist under the law which creates them, in this case, the law of Ecuador. The effect of the opening words of Article XII(4) [which says ‘Article VIII may be applied to a taxation measure’] is to permit this Tribunal to determine and apply the taxation law of Ecuador to the extent that it is necessary to do so in order to deal with a claim under Article VIII.71

Yet it is still an open question whether the FET standard may allow tribunals to provide limited remedies to investors even if their investments were illegal under domestic law. Finally, addressing domestic illegality as a merits issue avoids addressing the issue randomly, as either jurisdiction or merits, depending on the nature of the investment or the timing of the illegality. For example, if the investor owns an “enterprise,” the jurisdictional requirements will likely be satisfied, and the issue of the illegality (or the existence) of the more narrow investment at stake—that is, the VAT refund in the case of EnCana—will be adjudicated at the merits phase. If there is no “enterprise,” the analysis of the existence or validity of a VAT refund would be considered a jurisdictional matter. This dual treatment does not seem appropriate. Similarly, under the merits approach, the timing of the illegality—that is, whether the illegal act was committed at the time of the initial investment or later—does not matter: all illegalities should be treated alike.72 In other words, the timing of the illegality should be of no moment to the ensuing legal consequences under the BIT. In the end, although Fraport’s holdings are narrow, the majority decision has provided a key guideline for subsequent tribunals to address open questions. Fraport has presented a normative framework in which unresolved questions must be responded to, achieving equilibrium between the protection of investors’ rights and expectations on the one hand, and “the integrity of the law of the host state”73 and “respect for the rule of law,”74 on the other. III. GAMI and State Compliance with Domestic Law A. A State’s Violation of Its Law as the Basis for International Wrongfulness This section analyzes the somewhat symmetric problem of the international legal consequences of damage to investors by the state’s breach of its own municipal law. Generally, domestic law is relevant for international law. We live in the era of the

71 72 73 74

EnCana, supra note 69, ¶ 184 (emphasis added). In Fraport, supra note 7, ¶ 345, the tribunal suggests that only illegalities committed at the time of the initiation of the investment are to be treated as jurisdictional matters. Id. ¶ 402. Plama, supra note 57, ¶ 139.

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regulatory state75 and, as Dahl notes, “[w]e can take it as axiomatic that virtually all decisions by any government, including a democratic government, are disadvantageous to some people. If they produce gains, they also result in costs.”76 Similarly, Joskow and Noll remark that “with any major change in government regulation that has important impacts on price, market structure, cost, and product quality, some groups will gain while others lose.”77 Simply put, the state has the constitutional duty to allocate burdens and benefits across society in its permanent quest for the public good. This power to harm—legitimate for those trained in public law78—constitutes a fundamental aspect of state liability. Caranta notes that because “administrative decisions can legally encroach on citizens’ rights,”79 “[h]arm alone cannot therefore be sufficient to establish liability.”80 Something more than a demonstration of economic damages is needed in order to successfully demand that the government pay compensation. There are, of course, restrictions on when and how states can interfere with private entities’ rights and interests, and foremost among them is the rule of law. The modern state is, almost everywhere, a Rechtsstaat. To legitimately impose burdens and restrictions on investors and citizens, state authorities must act in accordance with domestic legal programs as established in advance by constitutions and legislatures.81 This feature of the modern state raises a key question in international law: how relevant is the legality of a state conduct’s under its domestic law to the appraisal of international wrongfulness? GIL has traditionally seen the international and domestic

75

76 77

78

79

80 81

See Giandomenico Majone, The Rise of the Regulatory State in Europe, 17 W. Eur. Pol. 77 (1994); Carol Harlow, State Responsibility: Tort Law and Beyond 6 (2004). Other authors prefer the term “regulatory capitalism” to stress the relevance of regulation, which is not always state-centered. See, e.g., David Levi-Faur, The Global Diffusion of Regulatory Capitalism, 598 Annals of the American Academy of Political and Social Sciences 12 (2005), John Braithwaite, Regulatory Capitalism. How it Works, Ideas For Making it Work Better (2008). Robert A. Dahl, Can International Organizations Be Democratic? A Skeptic’s View, in Democracy’s Edges 19, 25 (Ian Shapiro & Casiano Hacker-Cordón, eds., 1999) Paul L. Joskow & Roger C. Noll, Regulation in Theory and Practice: An Overview, in Studies in Public Regulation 1, 8 (Gary Fromm ed., 1981); see also Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law 34 (1997) (“Statutes always shift rights or expectations.”). See Peter Cane, Responsibility in Law and Morality 277 (2002) (noting that “for the sake of society as a whole, public functionaries must be free to treat citizens in ways that citizens should not be free to treat each other”). Roberto Caranta, Public Law Illegality and Governmental Liability, in Tort Liability of Public Authorities in Comparative Perspective 271, 272 (Duncan Fairgrieve et al. eds., 2002) (emphasis added). Id. See Carol Harlow, Global Administrative Law: The Quest for Principles and Values, 17 Eur. J. Int’l L. 187, 190 (2006) (observing that “[e]very Western administrative law system is founded on the rule of law”).

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

legal systems as autonomous and separate.82 As stated in the ELSI case—a diplomatic protection case decided under the rules of a friendship, commerce, and navigation (FCN) treaty—“compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision.”83 However, the fact that a state cannot invoke internal law “as a means of escaping international responsibility”84 does not mean that domestic law is irrelevant to international adjudication. As Brownlie points out, “cases in which a tribunal dealing with issues of international law has to examine the municipal law of one or more states are by no means exceptional.”85 This is due to the fact that, as the PCIJ held in the Advisory Opinion in Exchange of Greek and Turkish Populations, the parties may incorporate domestic law by “express or implicit reference.”86 Only radical dualists overlook that domestic illegality is neither a necessary nor a sufficient condition of an internationally wrongful act, but still a relevant consideration. As a matter of fact, in the realms of protection of aliens and their rights and of diplomatic protection, the relationship between international and domestic law has always been complex. As the International Court of Justice (ICJ) noted in the ELSI decision, “the qualification given to the impugned act by a municipal authority may be a valuable indication [of arbitrariness at the international plane],”87 and as the ILC’s commentaries on the Draft Articles on State Responsibility remark, “there are many cases where issues of internal law are relevant to the existence or otherwise of responsibility … . [I]n such cases it is international law which determines the scope and limits of any reference to internal law.”88

82 83

84

85 86

87 88

See generally ILC’s Draft Articles and Commentaries, supra note 53. Elettronica Sicula S.p.A. (ELSI) (U.S. v Italy) 1989 I.C.J. Rep. 15, 51, ¶ 73 [hereinafter ELSI]. In modern international investment arbitration, see the much cited equivalent holding of the tribunal in Compañía de Aguas del Aconguija S.A. & Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/97/3, ¶¶ 95-96 (July 3, 2002). ILC’s Draft Articles and Commentaries, supra note 53, at 89 (art. 3, cmt. 1); see, e.g., Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, 1932 P.C.I.J. (ser. A/B) No. 44, at 4, 24-25 (Feb. 4). Ian Brownlie, Principles of Public International Law 36 (6th ed. 2003). Exchange of Greek and Turkish Populations, 1925 P.C.I.J. (ser. B) No. 10, at 19; see also 1 Georg Schwarzenberger, International Law 68 (1957) (explaining that “parties to international disputes are free, either expressly or by way of implication, to authorise international judicial institutions to apply rules which, in substance, are rules of municipal law”). ELSI, supra note 83, ¶ 124 (emphasis added). ILC’s Draft Articles and Commentaries, supra note 53, at 89 (art. 3 & cmt. 8); see also id. (art. 3, cmt. 7) (affirming that “[e]specially in the fields of injury to aliens and their property and of human rights, the content and application of internal law will often be relevant to the question of international responsibility”) (emphasis added).

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Under a moderate dualist approach, domestic illegality exerts a pull towards international wrongfulness and domestic legality a pull towards international rightfulness. Once a “measure” under scrutiny has been found to be illegal under domestic law, the additional distance required in order to find an international breach (whether of a general standard of treatment in a treaty or under GIL) is significantly reduced. De Beus identified this pull force more than seventy years ago. As he observed in his study of the jurisprudence of the Mexican-U.S. General Claims Commission: Experience shows, and this is readily understandable, that an act at variance with municipal law is seldom deemed to come up to international standards… In the great majority of cases conduct towards a foreigner which does not conform with local law, is also at variance with the law of nations… The only value which can under the law of nations be attributed to domestic law as a standard is, on the one hand, that if the behavior complained of shows a pronounced departure from that law to the prejudice of a foreigner, there is an international delinquency, and, on the other hand, that if the action is in accordance with that law, international commissions will perhaps hesitate to declare that the national law is below international standards of civilization. But it should always be kept in mind, that compliance with local prescriptions is not in itself a conclusive test.89

Of course, establishing that domestic illegality “exerts a pull” towards international wrongfulness and identifying the precise relation between unlawfulness under the two legal orders are different things. In general terms, the traditional position in GIL is that a domestic law breach is insufficient per se to constitute an internationally wrongful act. “Something more” is needed. Domestic illegality plus “something more”—that is, the “something more” doctrine—constitutes the basic framework in international law for approaching the problem of a state’s violation of its domestic law. Has this traditional framework become obsolete in modern international treaty arbitration? The answer would appear to be no. However, investment treaties, and especially the FET standard, have highlighted the importance of the nature of the domestic illegality and the “something more” that is required to establish the existence of an international wrongful act. Indeed, as stated by the Saluka tribunal, the FET standard prohibits governments from acting in a way that is “manifestly inconsistent, non-transparent, unreasonable (that is, unrelated to some rational policy).”90 The FET standard calls for an appropriate test to review “arbitrariness” in state conduct,91 and more generally, a test for determining what constitutes a reasonably well-behaved

89

90 91

J.G. de Beus, The Jurisprudence of the General Claims Commission United States and Mexico Under The Convention of September 8, 1923, 140 (1938) (emphasis in the original). Saluka Investments BV v. Czech Republic, UNCITRAL, Partial Award (Mar. 17, 2006), ¶ 309 (emphasis added). See, e.g., Rumeli Telekom, supra note 26, ¶ 609; Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, ¶¶ 300, 315 (Sept. 1, 2007) [hereinafter Parkerings].

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state.92 State compliance with domestic law and the “something more” doctrine are essential components of any such test. B. GAMI: Facts and Answers GAMI addresses the relationship between domestic illegality and international law in general and the “something more” doctrine in particular. In sum, as stated in GAMI, in the absence of specific representations or assurances, an internationally wrongful act may be found if after analyzing “the record as a whole,” the tribunal concludes that the state has effected an “outright and unjustified repudiation” of its own law. The facts may be briefly summarized. GAMI Investment Inc. (GAMI), an American investor, owned 14.18 percent of Grupo Azucarero México S.A. de C.V. (GAM). GAM owned and operated five sugar mills in Mexico, representing 8.81 percent of Mexico’s production of sugar in the 2000/2001 harvest.93 In November 2001, facing a severe crisis in the industry caused by the extremely low value of refined sugar, the Mexican government decided to expropriate twenty-two mills nationwide, including GAM’s five.94 While GAM challenged the constitutionality of this measure before Mexico’s municipal courts, GAMI initiated arbitration pursuant to Chapter 11 of the North American Free Trade Agreement (NAFTA),95 arguing violations of national treatment, the FET standard, and the expropriation clause. However, while the NAFTA Chapter 11 proceedings were pending, Mexican courts invalidated the expropriation of GAM’s mills, ordering the restitution of three of five of the mills (GAM had withdrawn its claim with respect to the other two mills).96 Although the GAMI decision is multidimensional and includes several issues and matters worthy of comment for international investment law, what concerns us here is the claimant’s allegations of breach of the FET standard. According to GAMI, the Mexican government had engaged in “maladministration” of the regulatory frame-

92

See Reisman & Sloane, supra note 12, at 115-18. Stephan W. Schill has written:: [The FET standard possesses] a quasi-constitutional function that serves as a yardstick for the exercise of host states’ administrative, judicial or legislative activity vis-à-vis foreign investors. In this perspective, the arbitral jurisprudence does not appear as a fragmented and disordered aggregate of awards but as an expression of the continuous emergence of a global regime that governs foreign investment and the conduct of host states relating to it.

93 94 95 96

Stephan W. Schill, Fair and Equitable Treatment under Investment Treaties as an Embodiment of the Rule of Law 4 (Global Administrative Law Series, IILJ Working Paper 2006/6, 2006), available at http://www.iilj.org/publications/documents/2006-6-GALSchill-web.pdf. GAMI, supra note 8, ¶ 12. Id. ¶ 17. North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993) [hereinafter NAFTA]. GAMI, supra note 8, ¶¶ 18, 20.

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work such that the treatment that GAMI received fell below international minimum standards.97 In Mexico, as in many other countries, the government intervenes in the market of “sweeteners,” regulating price and quantity. The relevant law, the so-called “Sugarcane Decree of 1991,” established a complex system that articulated the interests of government, industry, and labor. Its implementation was entrusted to the Comité de la Agroindustria Azucarera (CAA), a body indeed formed by government, industry, and workers. The regulation’s general aim appeared to be defined as follows: [I]t is necessary to promote the [sugar] industry by giving economic certainty to the different sectors that participate in production thereof, such that said production be profitable, and also be able to foment its own growth. … That is necessary for trade policies to allow for a permanent sugar supply, thus it is prudent to link the price of sugarcane to that of sugar so as to ensure equity to all participants in the production chain.98

According to GAMI, Mexico “flagrantly and systematically failed to implement the law.”99 The state’s disregard of domestic law caused GAM to overpay for sugarcane and to be underpaid for sugar.100 The three main concrete allegations of GAMI were: first, that the Mexican government failed to communicate the prices of sugarcane at the end of each season, preventing adjustments of its price;101 second, that Mexico failed to enforce the producers’ obligation to export excess sugar, leading to an increased supply of sugar to the Mexican markets;102 and, third, that it failed to establish the quota production limits required by law, also leading to oversupply.103 Mexico’s main defense was that the sugar regime was not under the control of the government.104 Mexico also argued that GAMI was reading legal obligations where the regulatory framework contained none and that GAMI had failed to follow the procedures established in the regulation for the settlement of mill-sugarcane producer disputes.105 In sum, Mexico argued that it had not breached Mexican law. In the end, the tribunal decided against the investor. As a matter of fact, the tribunal concluded that Mexico had, over the course of many years, “sought to address the problem of excess production,”106 and that GAMI did not establish “that Mexico repudiated or arbitrarily ignored its own regulations.”107 However, in the tribunal’s 97 98 99 100 101 102 103 104 105 106 107

Id. ¶ 44. Id. ¶ 56. Id. ¶ 65. Id. ¶ 51. Id. ¶¶ 68-69. Id. ¶¶ 70-80. Id. ¶¶ 81-82. Id. ¶ 57. Id. ¶¶ 62, 69, 71, 74, 82. Id. ¶ 78. Id. ¶ 78.

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opinion, GAMI successfully demonstrated that Mexico had not properly implemented certain aspects of the regulatory scheme applicable to sugar production;108 indeed, in the tribunal’s opinion, “GAMI has comprehensively demonstrated that the regulations which it refers to as ‘the Mexican Sugar Program’ were not carried out in accordance with its terms.”109 Against this factual background, the tribunal examined whether Mexico had engaged in “maladministration,” and therefore violated the FET standard, by failing to implement the relevant regulatory framework. The tribunal started its analysis by noting that there was no doubt that “the fulfillment of the overarching regulatory objectives in question … would in a very significant way have improved GAM’s prospect and those of its shareholders.”110 Yet impairment alone was not considered sufficient to establish a breach of the FET standard. The tribunal then noted that international investment law must generally show respect towards the legal system of defendant states as it stands when investors initially make their investments. Indeed, in an implicit application of the principle of “respect for the integrity of the law of the host state,” the tribunal stated that “international law does not appraise the content of a regulatory programme extant before an investor decides to commit.”111 Indeed, “NAFTA arbitrators have no mandate to evaluate laws and regulations that predate the decision of a foreigner to invest.”112 The principle is clear: unless there are extreme circumstances, investors cannot complain about the content of the legal system in which they voluntarily invested.113 Yet this did not mean that domestic law was beyond the reach of the tribunal. The tribunal clarified that “the duty of NAFTA tribunals is rather to appraise whether and how preexisting laws and regulations are applied to the foreign investor.”114 In this regard, the tribunal rejected Mexico’s attempt to rely on a radical dualist approach, that is, on the argument that the tribunal did not have “the mandate to control the application of national laws by national authorities.”115 The tribunal expressly noted that international investment law has a direct concern for—and therefore jurisdiction to consider—the proper application of domestic law: The inquiry is whether the state abided by or implemented that programme. It is in this sense that a government’s failure to implement or abide by its own law in a manner adversely affecting a foreign investor may but will not necessarily lead to a violation of Article

108 109 110 111 112 113

Id. Id. ¶ 86. See also id. ¶ 103. Id. ¶ 87. Id. ¶ 91. Id. ¶ 93. See also Plama, supra note 57, ¶ 220 (stating that the “claimant was, of course, aware of, or should have been aware of, the state of Bulgarian law when it invested in Nova Plama”). 114 GAMI, supra note 8, ¶ 94. 115 Id. ¶ 90.

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1105 [the FET standard]. Much depends on context.116 … The duty of NAFTA tribunals is rather to appraise whether and how preexisting laws and regulations are applied to the foreign investor.117 … The key question is the extent to which an investor may rely on the implementation by the host state of laws in place before its investment is made. What efforts by a government to implement its regulatory programme suffice to fulfill the international standards requirement of Article 1105?118

At the same time, not all breaches of domestic law lead to wrongfulness in international law. More precisely, the tribunal expressly stated that not all violations of national law constitute breaches of the FET standard: Claims of maladministration may be brought before the Mexican courts. Indeed as breaches of Mexican administrative law they could be brought nowhere else. Yet GAMI’s claims of breaches of NAFTA may be brought before this Tribunal under Chapter 11 without the need to exhaust local remedies. The problem is therefore to identify the type of maladministration that could rise to the level of a breach of international obligations.119

With references to the Waste Management arbitration,120 it summarized the existing status of international law in this regard in four points: (1) The failure to fulfil the objectives of administrative regulations without more does not necessarily rise to a breach of international law. (2) A failure to satisfy requirements of national law does not necessarily violate international law. (3) Proof of good faith effort by the Government to achieve the objectives of its laws and regulations may counter-balance instances of disregard of legal or regulatory requirements. (4) The record as a whole—not isolated events—determines whether there has been a breach of international law.121

With this holistic approach in mind—“the record as a whole”—the GAMI tribunal took a step further by providing a focal point for the identification of international law violations. For the tribunal, the “something more” that is required to find a wrongful international act in the absence of undertakings or assurances would be generally satisfied in cases of “outright and unjustified repudiation” of domestic law: A claim of maladministration would likely violate Article 1105 if it amounted to an “outright and unjustified repudiation” of the relevant regulations. There may be situations where even lesser failures would suffice to trigger Article 1105. It is the record as a whole—not

116 117 118 119 120

Id. ¶ 91. Id. ¶ 94. Id. ¶ 100. Id. ¶ 103. Waste Mgmt., Inc. v. Mexico, ICSID Case No. ARB(AF)/00/3 (NAFTA Ch. 11 Arb. Trib. Apr. 30, 2004), 43 I.L.M. 967 (2004) [hereinafter Waste Management]. 121 GAMI, supra note 8, ¶ 97.

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

dramatic incidents in isolation—which determines whether a breach of international law has occurred.122

But this test represents merely a focal point in the tribunal’s analysis. Indeed, the tribunal did not deny that breaches of international law can still be found for lesser infractions of domestic law. Furthermore, when asking the question “Would something less than repudiation still be actionable under Article 1105?,”123 the tribunal accepted, for the sake of the argument, that “an abject failure to implement a regulatory program indispensable for the viability of foreign investments that had relied on it”124 may be a treaty breach. In the end, because GAMI could not prove an “outright and unjustified repudiation” of the Mexican sugar program, the tribunal rejected its claim of maladministration.125 It set a high standard: there was no evidence that “Mexico set its face against implementation.”126 In addition, given industry participation in the operation of the regulation, the tribunal was not persuaded that the failures to implement it were attributable to the Mexican government.127 C. Open Questions in International Investment Law As indicated above, the GAMI tribunal held that an “outright and unjustified repudiation of the relevant regulations” and “an abject failure to implement a regulatory program” would, in principle, violate the FET standard. Given the facts of this case, we can infer that this relatively high standard applies strictly to claims in which the government systematically misapplies the regulatory framework on which the foreign investor relied. The tribunal was indeed very careful to note that, under different circumstances, breaches of domestic law that fall short of outright, unjustified, and abject failures to abide may still be considered violations of the FET standard. The conceptual clarity of the award in GAMI reminds us of three general questions that remain open in international investment law: first, the tribunal’s jurisdiction over the violation of domestic law in its examination of FET claims;128 second, the intrusiveness of the standard of review for breaches of domestic law; and third, the nature of the “something more” that must be added to domestic illegality in order to establish an internationally wrongful act. 122 123 124 125 126 127 128

Id. ¶ 103. Id. ¶ 105. Id. ¶ 108. Id. ¶ 104. Id. Id. ¶ 108. See, e.g., Barnali Choudhury, Evolution or Devolution? Defining Fair and Equitable Treatment in International Investment Law, 6 J. World Invest. & Trade 297, 315 (2005) (observing that “[a] clear demonstration of a violation of the fair and equitable treatment standard can also be shown by demonstration that the host State, or its agent, acted beyond the scope of its legal authority”).

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Concerning jurisdiction, until recently, it was not infrequent for commentators and tribunals to consider public international law as though it were completely isolated from the municipal laws of states. As Douglas has previously noted: Many of the awards of investment treaty tribunals—and the pleading of parties to these disputes—proceed on the basis of a dogmatic distinction between “international” or “treaty” versus “municipal” or “contractual” spheres, as if the two can be strictly dissociated one from the other. Thus, by characterising the status of an investment treaty tribunal as “international”, arbitrators have professed to occupy a position of supremacy in a “hierarchy” of legal orders, and thereby have dismissed the relevance on any competing law or jurisdiction. The principle of international law that is used to buttress this approach, whether expressly or implicitly, is the rule of state responsibility that a state cannot invoke provisions of its own law to justify a derogation from an international obligation.129

However, since Waste Management, which recognized “incidental jurisdiction,”130 and GAMI, investment treaty tribunals have been more willing to recognize the relevance of domestic law, and therefore more willing to accept the necessary jurisdiction over issues arising under that law. Contractual issues, typically governed by domestic law, are indeed the most common version of this accessorial jurisdiction of investment treaty tribunals.131 In general, as summarized by Spiermann in a recent article on applicable law: While treaty claims are obviously to be decided on the basis of international law, national law still has a role to play.132 … Deciding “preliminary” or “incidental” questions of national law does not convert the arbitral tribunal into a court of appeal of national proceedings; this is inherent jurisdiction necessary in order to give effect to the investor’s right to international arbitration as well as the object and purpose of most, if not all, investment treaties.133

This leads to the second question. If domestic law is relevant in investment arbitration, arbitral tribunals must perform some form of review of domestic administrative 129 See Douglas, supra note 17, at 154-55. An example of “radical dualism” can be found in Wena Hotels Ltd. v. Egypt, ICSID Case No. ARB/98/4, ¶ 35 (Feb. 5, 2002) (rejecting the idea of “amalgamation of different legal instruments”). 130 Waste Management, supra note 120, ¶ 73. Note that this may also be the case in expropriation claims. See, e.g., Feldman v. Mexico, ICSID Case No. ARB(AF)/99/1 ¶ 88 (Dec. 16, 2002) (explaining that the validity of certain tax assessments pursuant to Mexican law was relevant for deciding an Article 1110 claim, expropriation; and an Article 1102 claim, national treatment). 131 See Compañía de Aguas del Aconquija v. Argentine Republic, ICSID Case No. ARB/97/3, ¶ 7.3.9-10 (Aug. 20, 2007); see also Helnan International Hotels A/S v. Egypt, ICSID Case No. ARB/05/19, ¶ 103 (July 3, 2008). 132 Ole Spiermann, Applicable Law, in The Oxford Handbook of International Investment Law 89, 110 (Peter Muchlinski et. al. eds., 2008). 133 Id. at 112.

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conduct. Is domestic law a question of fact? What is the scope of arbitral review of domestic law? Should investment treaty tribunals require the parties to first litigate domestic law issues in national courts?134 In general, arbitral awards are of little assistance on the issue of the intrusiveness of the standard of arbitral review. It is unclear how the Metalclad tribunal concluded that a municipal construction permit was not required to build a landfill, or that, in any case, the municipality of Guadalcazar had improperly denied it.135 It is also unclear how the Thunderbird tribunal concluded that the investor did not have vested rights over its activity and machines.136 Although other tribunals have better explained their conclusions on comparable issues of domestic law,137 many do a poor job. From an administrative law perspective, we know that “judicial review can vary in intensity.”138 Tribunals have several alternatives. Investment treaty tribunals may revert to pre-BIT times, which were dominated by “denial of justice” considerations.139 Under this approach, tribunals would only admit a FET claim based on domestic illegality if they found an egregious or manifest violation of domestic law. Indeed, the traditional standard of review for denial of justice was, and continues to be, extremely non-intrusive. The errors of national courts in the application of domestic law do not generally fall within an international tribunal’s proper scope of review. Furthermore, according to Jan Paulsson, the standard is so deferential that its real nature is procedural.140 A good example can be found in the Martini case, decided in 1930, in which the tribunal held that: The question [under dispute] … belongs to those which, in any country, may easily give rise to different interpretation, in the absence either of detailed and precise legislative or 134 The tribunals in Waste Management, supra note 120, ¶¶ 116, 174-76; EnCana, supra note 69, ¶¶ 194, 200 n.138; and Parkerings, supra note 91, ¶¶ 316, 448-52, suggest that investors should try those issues first at the domestic level. For a critique of such position, see Christoph Schreuer, Calvo’s Grandchildren: The Return of Local Remedies in Investment Arbitration, 4 Law & Prac. Int’l Cts. & Tribs. 1, 13-16 (2005), CME Czech Republic B.V. v. Czech Republic, UNCITRAL, ¶ 416 (Sept. 13, 2001); and EnCana, supra note 69, ¶¶ 8-10 (Naón, J., partial dissenting opinion). 135 See Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1, ¶¶ 79, 110 (Aug. 30, 2000) [hereinafter Metalclad]. 136 Id. ¶ 208 (emphasis added); see also id. ¶ 183 (“it would be inappropriate for a NAFTA tribunal to allow a party to rely on Article 1102 of NAFTA to vindicate equality of nonenforcement within the sphere of an activity that a Contracting Party deems illicit” (emphasis added)). 137 For example, in Alex Genin v. Estonia, ICSID Case No. ARB/99/2, ¶ 348-73 (June 25, 2001), the tribunal did properly and explicitly examine the law of Estonia. 138 Paul P. Craig, Administrative Law 552 (5th ed. 2003). 139 See Edwin M. Borchard, Theoretical Aspects of the International Responsibility of States, 1 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 242, 242 (1929) (noting that “perhaps no concept and term in the law of state responsibility is more important than that of ‘denial of justice’”). 140 Jan Paulsson, Denial of Justice in International Law 98 (2005).

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contractual provisions, or of well-established jurisprudence. It has not been proven that the interpretation of the Venezuelan Law in the matter, given by the Court of Caracas, was erroneous, much less that it was manifestly unjust.141

However, FET claims typically concern administrative action, not judicial denial of justice. Judicial deference under the circumstances would appear to be misplaced. A second approach argues that investment tribunals should give no deference to legal determinations of national administrative agencies. This position finds support in the traditional international law principle that national law and its application are treated as facts.142 Under this theory, because domestic law is a fact, investment tribunals are not required to show any administrative deference. Grigera Naón seems to articulate this position as follows in his separate opinion in EnCana: Consequently, the local laws, administrative acts and practices and other conduct attributable to the host State at the moment they had the effect of operating the deprivation of property, are facts to be freely evaluated by the arbitrators to determine if the foreign investor’s entitlement to protection under international law has been infringed at a specific moment in time or not.143

Some believe that such a de novo standard of review is inappropriate in investment arbitration. They argue that investment tribunals that apply domestic law to decide issues of illegality do not have authority to review de novo the findings of administrative agencies. As a matter of legal theory, applying the law—even if that law requires proof, as is the case for legal systems with which the arbitrators are not familiar—is something that is substantially different from fact-finding.144 A third alternative posits that investment tribunals should show at least the same level of administrative deference as would domestic courts. As a matter of international law, the foundations of this position can be found in the Brazilian Loans case:

141 Martini Case (Italy v. Venez.), 1930 R.I.A.A. 974 (May 3), reprinted in 25 Am. J. Int’l L. 554, 571-72 (1931) (emphasis added). For another highly deferential case, see Lighthouses Case (Fr. v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62, at 22. See also C. Wilfred Jenks, The Interpretation and Application of Municipal Law by the Permanent Court of International Justice, 19 Brit. Y.B. Int’l L. 67, 73 (1938). 142 See Certain German Interests in Polish Upper Silesia, 1926 P.C.I.J. (ser. A) No. 7, at 19 (“From the standpoint of International Law and of the Court, which is its organ, municipal laws are merely facts which express the will of States, in the same manner as do legal decision or administrative measures”). But see C. Wilfred Jenks, Prospects of International Adjudication 548 et seq. (1964) (discussing and criticizing the premise of municipal laws as “facts” before international courts and tribunals). 143 EnCana, supra note 69, ¶ 12 (Naón, partially dissenting opinion). 144 Jenks, supra note 141, at 552, provides a very powerful critique of the idea of municipal law as facts.

32 Guillermo Aguilar Alvarez, Santiago Montt, Investments, Fair and Equitable Treatment

Once the Court has arrived at the conclusion that it is necessary to apply the municipal law of a particular country, there seems no doubt that it must seek to apply it as it would be applied in that country. It would not be applying the municipal law of a country if it were to apply it in a manner different from that in which that law would be applied in the country in which it is in force. It follows that the Court must pay the utmost regard to the decisions of the municipal courts of a country, for it is with the aid of their jurisprudence that it will be enable to decide what are the rules which, in actual fact, are applied in the country the law of which is recognized as applicable in a given case . … [T]o compel the Court to disregard that jurisprudence would not be in conformity with its function when applying municipal law.145

This was the situation, for example, in the Occidental Exploration arbitration. The tribunal, interpreting Ecuadorian tax legislation, ruled against the position espoused by the Ecuadorian Tax Authority (SRI). Certainly, in a VAT reimbursement case, the determination of Ecuadorian tax law was essential to finding a treaty violation. The tribunal—in contrast to the Encana tribunal which “remanded” this issue to domestic courts—did not hesitate to conclude that “under Ecuadorian tax legislation the Claimant is entitled to such a refund, particularly as it has been held by the Ecuadorian courts that such a right pertains to exporters generally, whether involved in manufactures or in production.”146 Finally, investors must establish “something more” than a violation of domestic law. The ADF Group award provides a good example of application of the “something more” doctrine: [E]ven if the US measures were somehow shown or admitted to be ultra vires under the internal law of the United States, that by itself does not necessarily render the measures grossly unfair or inequitable under the customary international law standard of treatment embodied in Article 1105(1). … An unauthorized or ultra vires act of a governmental entity of course remains, in international law, the act of the State of which the acting entity is part, if that entity acted in its official capacity. Something more than simple illegality or lack of

145 Payment in Gold of Brazilian Federal Loans Contracted in France, 1929 P.C.I.J. (ser. A) No. 21, at 124; see also Payment of Various Serbian Loans Issued in France, 1929 P.C.I.J. (ser. A) No. 20, at 46-47. 146 OEPC, supra note 70, ¶ 143. Previously, the tribunal proceeded to conduct the following domestic law determination: The Tribunal agrees with the SRI that Article 69A grants the right to a tax refund to exporters of goods involved in activities such as mining, fishing, lumber, bananas an African palm oil. The Tribunal does not, however, agree that the oil industry is excluded from the application of Article 69A, especially considering that Article 169 of the Tax Law Regulation establishes the right of a tax refund of VAT paid on purchases of goods and services for exporters irrespective of whether they be manufacturers or producers.

Id. ¶ 136 (emphasis added).

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authority under the domestic law of a State is necessary to render and act or measure inconsistent with the customary international law requirements of Article 1105(1).147

Similar holdings can also be found in the contractual context.148 But what exactly is required to meet the “something more” test? GAMI sets out a first approximation: the investor must show an outright and unjustified repudiation of domestic law.149 Yet a more granular examination of the “something more” doctrine requires a closer look at the nature of the state conduct at issue.150 Have the investors suffered damage as a result of a single act (e.g., the termination of a concession contract) or a series of acts, including a failure to implement or enforce domestic regulations (e.g., as in GAMI)? So far, the issue remains undefined in international investment law. Tribunals have not gone beyond noting that the answer must lie somewhere between outrageous violations of domestic law—which would clearly constitute a breach of the FET standard—and mere illegalities, which do not constitute international wrongs. As recently stated by the tribunal in Eastern Sugar:

147 ADF Group Inc. v. United States, ICSID Case No. ARB(AF)/00/1, ¶ 190 (Jan. 9, 2003) (emphasis added). See also the conclusion in Saluka, supra note 90, ¶ 442: The unlawfulness of a host State’s measures under its own legislation or under another international agreement by which the host State may be bound, is neither necessary nor sufficient for a breach of Article 3.1 of the Treaty. The Treaty cannot be interpreted so as to penalise each and every breach by the Government of the rules or regulations to which it is subject and for which the investor may normally seek redress before the courts of the host State. (emphasis added).

Among commentators, see, for example, Jan Paulsson, Avoiding Unintended Consequences, in Appeals Mechanisms in International Investment Law 241, 254 (Karl Sauvant ed., 2008). 148 See, e.g., TSA Spectrum de Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/05/5, ¶ 60 (Dec. 19, 2008) (“[N]ot all breaches of the CNC’s obligations in the Concession Contract would qualify as breaches of the BIT”); Duke Energy Electroquil Partners & Electroquil S.A. v. Ecuador, ICSID Case No. ARB/04/19, ¶ 342 (Aug. 18, 2008) (“[I]t is now a well-established principle that in and of itself the violation of a contract does not amount to the violation of a treaty”); Parkerings, supra note 91, ¶ 289 (“[A] possible breach of contract does not necessarily amount to a violation of a BIT”); id. ¶ 315 (“[M]any tribunals have stated that not every breach of an agreement or of domestic law amounts to a violation of a treaty”). 149 See also Waste Management, supra note 120, ¶ 115. 150 As Horacio Grigera Naón noted in his partial dissenting opinion in EnCana, supra note 69, ¶ 12, gravity, permanence, and harmful effects are relevant factors in this regard. See also Thomas W. Wälde, Investment Arbitration under the Energy Charter Treaty: An Overview of Selected Key Issues Based on Recent Litigation Experience, in Arbitrating Foreign Investment Disputes 193, 210-11 (Norbert Horn & Stefan Kröll eds., 2004) (observing that “[a] simple breach of a rule is not enough: The ‘fair and equitable’ standard is only then breached if there is an accumulation of breaches of relevant standards of sufficient severity, weight and impact to justify the intervention of the treaty in domestic governance”).

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A violation of a BIT does not only occur through blatant and outrageous interference. However, a BIT may also not be invoked each time the law is flawed or not fully and properly implemented by a state. Some attempt to balance the interests of the various constituents within a country, some measure of inefficiency, a degree of trial and error, a modicum of human imperfection must be overstepped before a party may complain of a violation of a BIT. Otherwise, every aspect of any legislation of a host state or its implementation could be brought before an international arbitral tribunal under the guise of a violation of the BIT. This is obviously not what BITs are for.151

GAMI and Fraport must be understood within the narrow bounds of the issues respectively addressed and adjudicated by these tribunals. Nonetheless, both decisions provide a useful framework for the examination of the relationship between municipal illegality and international law. IV. Concluding Remarks There is a remarkable parallel between Fraport and GAMI: both evince a trend in international investment jurisprudence that is concerned with showing appropriate levels of deference and respect to the integrity of the law of the host state.152 In both cases, the tribunals rejected a radical dualist interpretation of the relevant investment treaties, opting instead to articulate a more nuanced view of the relationship between international law and domestic law. Notably, even the dissenting arbitrator in Fraport agreed on the point that “[i]nvestment arbitration requires a mutual respect for the law of the Host State, by both the investor and the Host State itself.”153 In Fraport, the tribunal held that in cases of egregious violations of domestic law, the investor should not have access to the protection of a bilateral investment treaty. Similarly, in GAMI, the tribunal held that a state’s “outright and unjustified repudiation of the relevant regulations” or “an abject failure to implement a regulatory program” are, in principle, violations of the FET standard.154 For both tribunals, lesser violations of domestic law may still have consequences in international law, although the burden is high on the party who relies on a breach of domestic law. Most significantly, the reasoning and outcome of both awards can be associated with the jurisprudence of modesty and restraint that we praised in the introduction.

151 Eastern Sugar B.V. v. Czech Republic, UNCITRAL, ¶ 272 (Mar, 27, 2007). 152 Among commentators, see, for example, Douglas, supra note 17; International Investment Arbitration, supra note 56; and Newcombe & Paradell, supra note 55. 153 Fraport, supra note 7, ¶ 29 (Cremades, dissenting). 154 GAMI, supra note 8, ¶¶ 104, 108 (internal quotation marks omitted).

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Chapter 33 The Once and Future Foreign Investment Regime José E. Alvarez

I. Introduction The McDougal-Lasswell-Reisman approach to international law, otherwise known as the “Yale” or “New Haven” School, is a powerful tool for dissecting how international legal regimes originate and evolve over time. As far back as 1959, Myres McDougal and Harold Lasswell argued for a new form of jurisprudence that was built upon, but went beyond, the insights of American legal realism. Their new “constructive jurisprudence of problem-solving” was situated in a larger context of world social events and processes, was attentive to the strategies of powerful actors (including groups and individuals and not merely the governments of states), paid heed to varied legal decision-making processes, and sought to clarify how international legal regimes fit within a system of public order that contributes to human dignity.1 This “policyoriented” approach stressed that international law could not be insulated from international politics and required an interdisciplinary analysis capable of going beyond strict positivism to consider the goals, aspirations, and the conduct of all the diverse participants in the international legal process.2 Although New Haven scholars acknowledged that nation states continued to be the predominant actors in the “global constitutive process of authoritative decision,” they anticipated today’s international relations scholars of the “liberal school”3 in acknowledging the impact of numerous non-state actors both internal to and outside the state; they anticipated the “democratization” of international law.4 McDougal, Lasswell, and Reisman also emphasized the normative values of the diverse participants in law-making processes and asked 1 2 3

4

See Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 Am. J. Int’l L. 1 (1959). See, e.g., Lung-chu Chen, An Introduction to Contemporary International Law 1-14 (1989). See Andrew Moravcsik, Liberal International Relations Theory: A Scientific Assessment, in Progress in International Relations Theory: Appraising the Field 159 (Colin Elman & Miriam Fendius Elman eds., 2003). See, e.g., Chen, supra note 2, at 23, 73-81; see also id. at 79 (criticizing the positivist notion that only states are the proper “subjects” of international law and noting the many ways

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 607-648.

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whether emerging legal prescriptions would actually advance the eight values that they argued produced “security.”5 As their broad concept of security suggests, the New Haven school did not examine only decisions bearing on so-called “high” politics, such as military security. Years before numerous global financial crises made the reality of economic interdependence obvious to all, McDougal and his colleagues noted that a “breakdown of any sector of [the] global economy is felt everywhere else.”6 Decades before globalization became a truism, they anticipated how the international flow of goods and services would make all nations dependent on the “resources, skill, labor, goods and markets” of others.7 This essay reexamines the rise and evolution of the contemporary international legal regime governing international investment in light of the insights of the New Haven school. In doing so, this essay critiques a leading game theoretic account of that regime, going beyond it to describe a regime that continues to evolve with the needs of its principal stakeholders. II. An Outline of the International Investment Regime The international investment regime,8 unlike that governing trade, lacks a single definitive multilateral text or a single over-arching institution. There is no WTO to govern those transnational capital flows that seek to establish an enterprise in a host state. Instead, the investment regime is most closely identified with some 2600 bilateral investment agreements (BITs) and an additional 300 or so regional agreements to promote economic integration. These agreements include both trade and investment provisions (such as the NAFTA and a number of other Free Trade Agreements (FTAs)), and they involve, as of the end of 2006, at least 177 countries.9 Rules

5 6 7 8

9

that “state centered” international law was being transformed into an “international law of homocentricity”). Id. at 16 (respect, power, enlightenment, well-being, wealth, skill, affection, and rectitude). Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188, 191 (1968). Id. at 190-91. I am using the term “regime” here in the loose sense deployed by many political scientists, in lieu of more normatively laden alternatives such as “system” or “framework.” See, e.g., Robert O. Keohane, After Hegemony 57 (1984) (defining “international regimes as ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations’” (quoting Stephen D. Krasner, Structural Causes and Regime Consequences, in International Regimes 1, 2 (Stephen D. Krasner ed., 1983))). Kenneth J. Vandevelde, A Brief History of International Investment Agreements, in The Effect of Treaties on Foreign Direct Investment: Bilateral Investment Treaties, Double Taxation Treaties, and Investment Flows 3, 28 (Karl P. Sauvant & Lisa E. Sachs eds., 2009) [hereinafter Effect of Treaties on Foreign Direct Investment] (citing UNCTAD’s figures).

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governing investment are also contained within other multilateral agreements (such as the Energy Charter Treaty) or exist within international organizations principally designed for other purposes (such as the WTO’s TRIMs, GATS, and TRIPS Agreements, the World Bank’s ICSID Convention, or the OECD’s Code of Capital Movements).10 BITs and the investment chapters of FTAs typically grant foreign investors from the respective state parties relative rights against discrimination (usually cast as requirements to accord national and most favored nation treatment) and some absolute minimum guarantees (usually cast as requirements to accord “fair and equitable treatment;” “full protection and security;” fair, prompt and adequate compensation upon expropriation; and the right to repatriate profits stemming from the operation of their enterprise).11 Many of these treaties also rely on what is arguably the most effective set of remedies of any existing international legal regime: a guarantee than injured investors have direct recourse to binding international arbitration to affirm any of their treaty rights, without, in many cases, any need either to exhaust local remedies in the host state in which they are located or to seek the cooperation of their home state (as under traditional espousal).12 Other participants in the global constitutive process also advance the most obvious goal of investment treaties—to protect foreign investors and thereby promote the free flow of capital across borders—and ought to be considered part of the regime. Such participants include international financial institutions, such as the World Bank’s International Finance Corporation,13 the International Monetary Fund,14 regional organizations such as the OECD,15 political risk insurers such as the United States’s OPIC and MIGA,16 market 10 11

12 13 14 15

16

See generally Andreas F. Lowenfeld, International Economic Law 94-97, 102-07, 115-30, 456-61 (2002). For descriptions of these rights, see R. Doak Bishop, James Crawford & W. Michael Reisman, Foreign Investment Disputes: Cases, Materials and Commentary 1007-169 (2005). See, e.g., id. at 1391-514. See, for example, the annual “Doing Business” Reports issued by the International Finance Corporation. See, e.g., Daniel Kalderimis, IMF Conditionality as Investment Regulation: A Theoretical Analysis, 13 Soc. & Legal Stud. 103 (2004). Thus, for example, OECD studies on the role of incentives to promote investment and performance requirements have led to warnings to states to avoid such actions as subsidies to local industries. See, e.g., OECD, Competition Policy in Subsidies and State Aid 2001, available at http://www.oecd.org/dataoecd/31/1/2731940.pdf. Not incidentally, most investment agreements fail to include investment promotion measures and some also discourage or prohibit certain performance requirements. See, e.g., 2004 U.S. Model BIT, available at http://www.state.gov/documents/organization/38710.pdf (which contains no promotion measures and which prohibits certain performance requirements under Article 8). For a description of the MIGA, see Lowenfeld, supra note 10, at 488-93. For a discussion of how the law on takings might be influenced by claims determinations made or by arbitrations under political risk insurers such as OPIC, see, for example, Steven R. Ratner, Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International

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players who assess credit-worthiness or political risk,17 and, of course, foreign investors who may secure assurances from host states (through stabilization clauses contained in investment contracts or through local law).18 As discussed below, NGOs are also increasingly becoming important players in the international investment regime. How should we understand the contemporary international foreign investment regime, its past and its possible future, from the broad perspective of the New Haven school? McDougal and his colleagues would be among the first to acknowledge that international rules addressing the treatment of investment emerged from the crucible of North/South tensions. Legal norms for the protection of international investment stem from customary rules of state responsibility towards aliens formulated during the colonial era, such as the “international minimum standard” said to reflect the rule of law among “civilized” nations.19 Conflicts over the legitimacy and content of the standards that should govern the conduct of states in relation to foreign investors emerged at least by the late nineteenth and early twentieth centuries. “[B]etween 1829 and 1910, the United States [alone] entered into [some] 40 arbitrations with Latin American countries” resulting from diplomatic “espousal” efforts on behalf of U.S. investors.20 These efforts generated predictable resistance from the periphery vis-à-vis the metropole, most famously in the form of the Calvo and Drago doctrines by Latin American jurists.21 The claim by the United States that it was permissible to

17

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19 20 21

Law, 102 Am. J. Int’l L. 475 (2008). For consideration of how such rulings might have influenced compensation determinations, see Mark Kantor, Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence 61 (2008). For suggestions that market evaluators of political risk play a role in disseminating signals about the openness of a country with respect to its investment regime, see, for example, Tim Büthe & Helen V. Milner, Bilateral Investment Treaties and Foreign Direct Investment: A Political Analysis, in Effect of Treaties on Foreign Direct Investment, supra note 9, at 171. See, e.g., Paul Kuruk, Renegotiating Transnational Investment Agreements: Lessons for Developing Countries from the Ghana-Valco Experience, 13 Mich. J. Int’l L. 43 (1991) (case history of one government’s rejection of, among other things, stabilization clauses negotiated in investment contracts by a prior regime); Louis T. Wells & Rafiq Ahmed, Making Foreign Investment Safe (2007) (case histories of investor/host-state tensions, particularly with respect to promises made in investment contracts). See generally Vandevelde, supra note 9. Id. at 6 n.24. Under the Calvo Doctrine, first articulated by an Argentine jurist, foreign investors should be treated no differently than nationals and would only have access to the same avenues for redress as nationals (namely national courts). The Drago Doctrine, also articulated by an Argentine jurist, barred the use of armed force by states when intended to seek redress for debts owed to its foreign investors. See generally id. at 5-6. The Roosevelt Corollary, discussed below, was the United States’s response to the Drago Doctrine.

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use force to collect such debts in the Western Hemisphere suggests the vehemence of positions on both sides.22 North/South disputes over the applicable legal rules only grew in intensity as decolonization progressed after World War II, when many newly independent states reexamined the merits of investment contracts concluded under prior regimes, while others opted for socialist models for their economies that eschewed the market altogether, encouraged expropriations of the private sector, or sought to adhere to import substitution—choices that nearly always proved hostile to the interests of foreign investors.23 This was the “larger context of world social events and processes” that culminated in the actions of the UN General Assembly in 1973, where over 100 nations proclaimed that all states have “full” and “permanent” sovereignty over their natural resources and economic activities, including the right to nationalize or transfer ownership of assets to their nationals, without mention of an international legal obligation to pay compensation;24 and led to the adoption, with the support of 120 nations, in 1974, of a Charter of Economic Rights and Duties of States (CERDS).25 The latter acknowledged only that “appropriate compensation,” as provided under national law, should be paid in cases of expropriation.26 Given this history, it is scarcely surprising that many commentators continue to see bilateral and regional investment treaties through a North/South lens. Thus, some see the international investment regime as part and parcel of a broad ideological effort to impose a one-size-fits-all “Washington Consensus” model of “good governance” on the world.27 Some go further and portray BITs as the direct heirs to the nineteenth-century capitulation agreements that Western empires once extracted from the periphery; they see BITs as neo-colonial one-sided agreements which only seek to protect the capital of the West in the Global South.28 On this view BITs treat 22 23

24 25 26 27

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Id. at 6 (discussing the Roosevelt Corollary to the Monroe Doctrine). Id. at 11. As Vandevelde indicates, key moments in this history were “the seizure of petroleum assets in Iran in 1951 and in Libya in 1955,” Castro’s expropriations starting in 1959, and a wave of expropriations in the 1970s. Vandevelde cites one study identifying “875 expropriations occurring in sixty-two countries between 1960 and 1974.” See id. at 11 n.52. Permanent Sovereignty over Natural Resources, G.A. Res. 3171 (XXVIII), U.N. Doc. A/9030 (Dec. 17, 1973). Charter of the Economic Rights and Duties of States (CERDS), G.A. Res. 3281 (XXIX), U.N. Doc. A/9631 (Dec. 12, 1974) (adopted by a vote of 120-6 with ten abstentions). Id. art. 2.2(c). For popular accounts both in favor and against, see, for example, Thomas L. Friedman, The Lexus and the Olive Tree (2000) (praising LDC’s turn to the “Golden Straightjacket”); Joseph E. Stiglitz, Globalization and its Discontents (2002) (criticizing the promulgation of the “Washington Consensus”). Under those imperial products, colonial powers expanded their extraterritorial jurisdiction by exempting Western merchants and investors from the local laws of the countries in which they operated. Capitulation agreements imposed the “standard of civilization” on the “uncivilized” by granting jurisdiction over Western nationals and their property to consular officials of Western states in lieu of local courts. Imperial powers justified these treaties on the premise that some states were incapable of satisfying the standard of justice granted by

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developing countries that are the recipients of Western capital as less than civilized; the investment regime is essentially law imposed by “Anglo-American” empire.29 Others suggest that BITs are more analogous to “contracts of adhesion” imposed on the unwilling poor by the rich.30 Fears that investor-state dispute resolution has not truly leveled the playing field between Northern capital exporters and Southern capital importers underlie many other critiques of investment treaties. Some contend that investor-state arbitrators are no more sensitive to local context than the majority of the Commissioners who decided the Chattin case before the U.S.-Mexico Claims Commission in 1927—a controversial decision that concluded that Mexican courts had engaged in a denial of justice, which some have criticized as based on a misunderstanding of the civil law approach to adjudication.31 The harshest critics suggest that “gunboat arbitration” has merely displaced the gunboat diplomacy of Calvo’s day or that today’s “biased” investor-state arbitrators continue to apply “privilege law for foreigners.”32 III. Guzman’s Account of the Origins of the Investment Regime The view that the contemporary investment regime is a game played by the West on the rest was most famously made by Andrew Guzman in a 1998 article.33 To this day,

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civilized nations. Today’s BITs, like the old capitulation agreements, generally exempt foreign investors from having to go to local courts. According to some, BITs merely substitute international arbitral mechanisms for the former recourse to consular officials. See, e.g., David P. Fidler, A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization, 35 Tex. Int’l L.J. 387 (2000). See M. Sornarajah, The International Law on Foreign Investment 207-08, 259 (2d ed. 2004). For more general articulations of the “imperial” thesis for contemporary international law, see, for example, Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 Ind. J. Global Legal Stud. 383 (2003); B.S. Chimni, International Institutions Today: An Imperial Global State in the Making, 15 Eur. J. Int’l L. 1 (2004); Walter Russell Mead, God and Gold: Britain, America, and the Making of the Modern World (2007). But see José E. Alvarez, Contemporary Foreign Investment Law: An “Empire of Law” or the “Law of Empire”?, 60 Ala. L. Rev. 943 (2009) (criticizing “imperial” perspectives of the contemporary international investment regime). For a critique of this contention, see José E. Alvarez & Kathryn Khamsi, The Argentine Crisis and Foreign Investors: A Glimpse into the Heart of the Investment Regime, in Yearbook on International Investment Law & Policy 379, 473-77 (Karl P. Sauvant ed., 2009) [hereinafter International Investment Yearbook]. See B.E. Chattin (United States) v. United Mexican States, 4 R. Int’l Arb. Awards 282 (Gen’l Claims Comm. 1927) (MacGregor, Comm’r, dissenting). Santiago Montt, What International Investment Law and Latin America Can and Should Demand from Each other, Updating the Bello/Calvo Doctrine in the BIT Generation, 3 Revista Argentina Del Régimen de la Administracion Pública 75, 80 (2007). Andrew T. Guzman, Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 Va. J. Int’l L. 639 (1998).

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Guzman’s article, which its author has updated for publication in 2009,34 is the most frequently cited account of the rise and spread of the investment regime. Although told in the dry jargon of law and economics, Guzman’s account portrays the investment regime as essentially a tool of empire—a prime example of Western capital exporters turning to hegemonic bilateral treaties to exert unfair leverage over individual developing countries, when, as a group, those countries had successfully managed to change the rules of the game. Guzman seeks an answer to an apparent paradox: why did developing states oppose the Hull Rule, which required “prompt, adequate, and effective” compensation, and embrace the New International Economic Order (NIEO) at the UN while simultaneously flocking to bilateral treaties that contradicted these collective efforts? To Guzman the answer lies in a simple prisoner’s dilemma. As a group, developing states had a common interest in toppling the Hull Rule and other relevant rules of customary international law protecting alien investors. They successfully did so through their General Assembly efforts, but they were unable to sustain a united front; instead, as individual prisoners they defected from the NIEO by adhering to bilateral investment agreements with capital exporting states. BITs address what Guzman calls a “dynamic inconsistency problem,” a situation “when a preferred course of action, once undertaken, cannot be adhered to without the establishment of some commitment mechanism.”35 “The central problem,” Guzman explains, “is that a sovereign country is not able, absent a BIT, to credibly bind itself to a particular set of legal rules when it negotiates with a potential investor.”36 Guzman explains that individual developing countries conclude BITs out of economic self-interest, intent on striking particular tit-for-tat remedies for the dynamic inconsistency problem with particular capital exporting nations but without any intention of restoring the former (pre-NIEO) general rules protecting the interests of alien investors. His thesis is that individual least developed countries (LDCs) conclude BITs in an ultimately fruitless and self-defeating competitive effort to secure an advantage vis-à-vis other developing countries. The results are predictably suboptimal: their acts as BIT signatories generate a race to the bottom whereby all LDCs are ultimately worse off than if they had stuck together and adhered to the NIEO.37 Guzman’s recourse to game theory also offers an ostensible legal payoff. Guzman contends that since LDCs adhered to BITs for economic reasons, their actions did not have the opinio juris to affect or change the underlying customary international legal protections that had been destroyed by the NIEO.38 Accordingly he argues that today’s network of investment agreements constitute lex specialis between their par-

34 35 36 37 38

Andrew T. Guzman, Explaining the Popularity of Bilateral Investment Treaties, in Effect of Treaties on Foreign Direct Investment, supra note 9, at 73. Id. at 78. Id. Id. at 85-88, 90-91. Id. at 93-96.

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ticular parties and should not be considered to codify, to affect, or to provide evidence of customary international law.39 IV. Questioning Guzman A careful student of the New Haven school would question the existence of the alleged “paradox” that begins Guzman’s inquiry. The circumstances surrounding the origins of BITs and the evolution of this regime cast doubt on Guzman’s contentions that LDCs were “simultaneously” engaged in contradictory actions, had successfully toppled the Hull Rule or other relevant customary legal norms prior to entering into BITs, had no other option except to enter into BITs to surmount a dynamic inconsistency problem, entered into BITs solely to surmount the dynamic inconsistency problem, and have not affected customary international law through their participation in investment agreements. In this part, I argue that the investment regime was probably not, as Guzman would have it, built on the failure of collective action. In the next part, I contend that even if Guzman were correct about the regime’s origins, it is certainly not accurate to describe the existing investment regime as a ruse devised by game theorists to pull the wool over the eyes of unwilling LDCs. To begin, Guzman’s timeline is wrong or at best misleading. In 1973-74 the vast majority of LDCs were not doing one thing at the UN General Assembly while simultaneously engaged in undermining those efforts through the individual negotiation of BITs. As Guzman acknowledges, the highpoint of the NIEO effort, never to be duplicated, came in 1974. Yet, even when the Cold War ended many years later, in 1989, only 386 investment agreements were in place (as opposed to nearly 3000 today).40 Guzman is correct to point out that at least some LDCs had concluded some bilateral investment treaties by 1974, but he is wrong to suggest that such BITs responded to either the alleged “toppling” of the customary international laws or to his crucial “dynamic inconsistency” problem. Guzman ignores that in the early 1970s nearly all BITs were extremely weak devices for the protection of investment rights and most lacked the perfected investor-state arbitration clause that Guzman argues makes BITs credible commitment devices (at least over investment contracts that are enforceable only through recourse to host state courts).41 As is clearly shown by Jason Webb Yackee’s impressive empirical efforts to trace the growth of what he calls “strong” BITs (so 39 40 41

Indeed, Guzman contends that BITs are more plausibly described as “permissible derogations from the existing rules of customary law.” Id. at 95. Vandevelde, supra note 9, at 16. Thus Tillmann Rudolf Braun notes that the “first generation” of BITs included only stateto-state arbitration clauses. The erstwhile leader of BITs, Germany, concluded its first BIT with an investor-state arbitration clause only in 1979, and that clause (in the German-Rumanian BIT) extended arbitral jurisdiction only with respect to the amount of compensation. The first German BIT with a comprehensive investor-state arbitration clause was signed only in 1986. Tillmann Rudolf Braun, Globalization: The Driving Force in International Investment Law, in The Backlash against Investment Arbitration, Chapter 21 (Michael Waibel et al., eds., 2010).

33 José E. Alvarez, The Once and Future Foreign Investment Regime

called because they contained investor-state dispute settlement clauses in which the state gave its advance consent to arbitration), of the BITs concluded by 1974, only a miniscule number contained effective investor-state dispute settlement clauses.42 Thus, when LDCs were, as a group, resisting the traditional international legal protections for investors and the recourse to international arbitration at the General Assembly, they had not yet agreed individually, in the few BITs concluded at that time, that foreign investors could unilaterally initiate binding arbitration to enforce their rights. LDCs’ consistent position on this point should not come as a surprise. Although the first BIT was concluded in 1959, it was not until 1965, with the conclusion of the ICSID Convention, that states could possibly give their advance consent to investor-state arbitration through a BIT. Moreover, as those most familiar with the drafting of the ICSID Convention have stated, it was unclear even when that convention was concluded and a trickle of states began ratifying it after 1965 that ICSID would become a general vehicle for treaty-based arbitration “without privity” (as opposed to a device to complement distinct arbitral commitments contained in investment contracts between investors and states).43 The first BIT with unqualified state consent to arbitration (between Italy and Chad) “did not enter into force until 1969 … and the majority of BITs” did not contain the state parties’ pre-commitment to international arbitration for investor-state disputes “until well into the 1990s.”44 Indeed, the AAPL v. Sri Lanka award, which came in 1990, was the first to affirm that consent to arbitration could be provided through a state’s advance consent as provided in a treaty.45 While the aggregate data does not permit the reader to identify how many BITs between developed and developing states contained effective investor-state dispute settlement clauses as of 1974, it would appear from the data that the vast majority of BITs did not contain such clauses but were comparable to the Canada-Poland BIT of 1990—a typical treaty for its time that combined relatively weak investment protections with an ineffectual investor-state dispute settlement clause.46 Investment treaties of this kind do not provide investors with the assurances that their rights will

42

43 44 45

46

Jason Webb Yackee, Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?, 42 Law & Soc’y Rev. 805, 815 (2008). Jan Paulsson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995). Yackee, supra note 42, at 815. Thomas Wälde, Introduction: International Investment Law Emerging From the Dynamics of Direct Investor-State Arbitration, in New Aspects of International Investment Law 43, 58 (Philippe Kahn & Thomas W. Wälde eds., 2007); Andrew Newcombe & Lluís Paradell, Law and Practice of Investment Treaties 46 (2009). The first award to uphold “arbitration without privity” based on a state’s giving its advance consent to arbitration in its domestic law was SPP v. Egypt (1985). See Newcombe & Paradell, supra, at 45. See, e.g., Agreement for the Promotion and Reciprocal Protection of Investments, Can.Pol., art. IX, Apr. 6, 1990 (failing to provide the states’ advance consent to arbitration within the treaty).

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be credibly protected. They do little to correct the conditions of “dynamic inconsistency” which Guzman claims motivated LDCs to defect from the NIEO. Guzman’s thesis ignores the fact that, as most investment scholars have recognized, the modern BIT era began not with the first weak BITs concluded by Germany in the late 1950s, but with the later development of much more investor-protective agreements, with the decision by the United States to abandon its old Friendship, Commerce, and Navigation (FCN) program and develop its own Model BIT.47 The U.S. BIT program formally began in the early 1980s but did not really take off until about 1989, long after the NIEO efforts in the General Assembly had come to an end.48 The first U.S. Model BIT successfully used in negotiations, the U.S. Model BIT of 1984, revolutionized the investment regime and was instrumental in enabling the wave of investor-state arbitral disputes many years later.49 As the excerpts from that treaty in the accompanying table indicate, the U.S. Model of 1984 had a simple, straightforward purpose: to protect foreign investors.50 It had an expansive, some would say “circular,” definition of investment that embraced all forms of economic interests, from those conferred by informal contract to those bestowed according to local laws or licenses.51 Its “relative” guarantees of national and most favored nation (MFN) treatment extended to the entry of investment and not merely to post-entry treatment.52 It contained an “umbrella” clause elevating violations of any “obligation” between host state and investor to the level of a treaty breach, and providing a guarantee, above and beyond national treatment, to protect investors from “arbitrary and discriminatory” measures.53 It affirmed the need to provide investors prompt, adequate and effective compensation for any direct or indirect expropriation or other acts that were “tantamount to expropriation or nationalization.”54 Crucially, it also enabled the third party beneficiaries of the treaty, namely foreign investors from either party, to enforce, directly and without intervention from their home state, all the treaty’s guarantees through international arbitration, to which the state parties gave their advance consent in the treaty itself.55 Moreover, even though the U.S. Model BIT of 1984 was regarded as the most investor-protective agreement then in existence and came to be emulated by others,

47 48 49

50 51 52 53 54 55

See, e.g., Newcombe & Paradell, supra note 45, at 45 (contending that the modern BIT era did not begin until 1969 with the signing of the Chad-Italy BIT). For a history of the U.S. BIT Program, see Kenneth J. Vandevelde, United States Investment Treaties 29-43 (1992). For texts of the 1982, 1983, and 1984 U.S. Model BITs, as well as the texts of the first BITs concluded by the United States, see id. apps. A and B (the 1984 U.S. Model appears as Appendix A-3). Id. app. A-3, at 20 (preamble to the 1984 U.S. Model BIT). See id. (art. I). Id. at 21 (art. II(1)). Id. (art. II(2)). Id. at 22 (art. III). Id. at 23 (art. VI).

33 José E. Alvarez, The Once and Future Foreign Investment Regime

the United States continued to “improve” its model over time. It was not until 1987, for example, that the United States sought to correct another potential source of “dynamic inconsistency”—the possibility that host states may have successfully induced an investor to waive its right to international arbitration through an investment contract. The new U.S. model treaty of 1987 clarified that its guarantee of investor-state dispute settlement would, at the option of the investor, prevail over any clause in an investment contract stipulating other forms of dispute settlement (including local courts).56 Contrary to what Guzman suggests, the wave of BITs capable of addressing his “dynamic inconsistency” problem did not begin until after LDCs had abandoned their attempts to establish the NIEO. Indeed, as Yackee’s data indicate, BIT ratifications generally, and particularly ratifications of “strong” BITs, began to accumulate in significant numbers only after the fall of the Berlin Wall. LDCs turned to “strong” BITs, in short, roughly at the same time (and for the same reasons) as they turned towards liberalized capital flows and towards market approaches to running their economies. The 1990s, not the 1980s and certainly not the 1970s, were the era when the modern investment regime was born. Given these facts, Guzman’s conclusions about the disconnect between BITs and customary law are extremely dubious. Guzman contends that if LDCs had intended to resurrect customary international law investment protections apart from their entry into BITs, they would have undertaken collective efforts to undo the effects of their earlier NIEO efforts within the General Assembly. This contention ignores some troublesome facts, apart from the timing issues noted above. Contrary to what Guzman argues, there is little concrete evidence that the NIEO efforts in the Assembly had successfully toppled—as opposed to merely threatened— the Hull Rule or other relevant customary norms encompassed by the doctrine of state responsibility to aliens. As those involved in the establishment of the U.S. BIT program have repeatedly pointed out, the U.S. turned to BITs and the inclusion of various provisions therein that explicitly relied on customary international law in order to buttress customary law.57 U.S. BIT negotiators would hardly have sought to conclude treaties explicitly relying on customary law and indicating that U.S. investors needed to be treated in accord with customary law had they thought that those traditional norms no longer existed. And these negotiators had good reason to continue to put their trust in such norms since, whenever the viability of such rules had been questioned before reasonably neutral bodies, the relevant arbitral tribunals continued to conclude even after 1974 that neither the Assembly resolution on Permanent Sovereignty nor its Charter of Economic Rights and Duties of States had

56

57

For the 1987 U.S. Model BIT, see id. app. A-4. Its provision on investor-state dispute settlement, at article VI, expressly qualifies resort to previously agreed applicable dispute settlement (including provisions in the investor’s contract) to paragraph 3, enabling the investor to choose to go to treaty based investor-state arbitration even in such cases. See, e.g., id. at 7-22.

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changed the underlying customary norms.58 Guzman makes no mention of these famous decisions or of their underlying contentions that, since both of these Assembly resolutions had drawn the opposition of “specially affected” states, the resolutions could not displace the traditional law affirmed in earlier Assembly resolutions adopted by consensus. Guzman’s facile conclusion that the Assembly’s actions had, by 1974, successfully destroyed the Hull Rule ignores lively scholarly debates on whether those Assembly resolutions had any legal effects on customary law, whether Assembly resolutions in general can be seen as a form of “state practice” or “opinio juris,” and whether it is easier for the Assembly to displace existing custom than to replace it.59 Given arbitral decisions on point and the absence of a scholarly consensus otherwise, it is strange to suggest, as Guzman does, that had LDCs truly wished to restore the traditional international rules protecting alien investors, they could have done so through General Assembly resolutions “revoking” the previous NIEO resolutions. It would have been extraordinary for the Assembly to attempt to “revoke” a prior Assembly resolution even if the vast majority of states no longer agreed with their prior proclamations.60 When an Assembly effort is no longer viable, it is far more common for the relevant Assembly resolution simply to disappear from the Assembly’s agenda. This is, of course, what eventually occurred with the NIEO. It is equally plausible to assume that as former supporters of the NIEO changed their minds about the wisdom of those efforts—which had never convinced arbitrators in any case—they merely failed to re-introduce affirmations of the Charter of Economic Rights in subsequent sessions of the Assembly. Subsequent inaction by the Assembly on the NIEO, coupled with other Assembly actions, such as its passage of a resolution in praise of “entrepreneurship” in 1993, could be taken as evidence that LDCs as a group and as BIT parties no longer supported the NIEO.61 Of course, as traditional positivist international lawyers would be quick to point out, the content of customary norms is determined by actual state practice and opinio juris (or, as New Haven scholars would put it, by the actions and reactions of the relevant participants and by the appraisal of those actions and reactions by other relevant actors). It is wrong to single-mindedly focus on the impact of either a network of investment treaties or a series of Assembly resolutions. To determine the state of 58

59 60 61

See, e.g., SEDCO, Inc. v. Nat’l Iranian Oil Co., 10 Iran-U.S. Cl. Trib. Rep. 180 (1986); Texaco Overseas Petroleum Co. v. Libyan Arab Republic, 17 I.L.M. 1 (Int’l Arbitral Trib. 1978); see also Lowenfeld, supra note 10, at 16-31. See, e.g., Lowenfeld, supra note 10, at 16-31. The closest example, which suggests its exceptional nature, is the Assembly’s effort to renounce its prior Assembly equating Zionism with racism. See G.A. Res. 48/180, U.N. Doc. A/RES/48/180 (Dec. 21, 1993) (entitled “Entrepreneurship and Privatization for Economic Growth and Sustainable Development”). Knowledgeable Assembly watchers know that when a majority of states continue to support action in the Assembly, this is inevitably accompanied by Assembly resolutions in seriatim. The sheer absence of subsequent Assembly affirmations of the Charter of Economic Rights and Duties of States in the 1980s and beyond suggests how the NIEO effort effectively died from lack of affirmative support.

33 José E. Alvarez, The Once and Future Foreign Investment Regime

relevant customary law at a particular moment in time, one must look at what states were doing and not merely what they were saying. BITs do not exist in a vacuum. As veteran U.S. BIT negotiator Kenneth Vandevelde has noted, U.S. BIT negotiators tend to seriously negotiate only with countries whose laws or reform plans would enable them to live up to the BIT’s terms.62 To do otherwise would only lead to disappointed foreign investors and to a tide of unsettling investor-state arbitral claims. Thus, prospective BIT signatories usually reform their local laws and practices as necessary in order not to generate at least predictable investor disputes under the BIT. This may help explain why the wave of BIT ratifications has generally been accompanied or preceded by a wave of reforms to relevant national laws and practices. Therefore, according to UNCTAD, of 2533 changes in national foreign direct investment (FDI) laws from 1991 to 2006, ninety-one percent moved towards making the investment climate more welcoming to FDI.63 These changes in law, which coincided with the steep increase in BITs, and not merely the practice of concluding BITs, are surely part of the “state practice” that needs to be examined with respect to the relevant customary law.64 Guzman’s mono-causal view of why countries enter into BITs would not persuade scholars of the New Haven School. It is wrong to assume that BITs constitute the only mechanism LDCs have to overcome the dynamic inconsistency problem, that individual LDCs could not defect from the NIEO in the absence of BITs, or that only reputational constraints affected the behavior of LDCs prior to the advent of BITs. Even without BITs, LDCs have long had at least two other methods to overcome the dynamic inconsistency problem: political risk insurance and undertaking express

62 63 64

Vandevelde, supra note 48, at 31-32. Lisa E. Sachs & Karl P. Sauvant, BITs, DTTs, and FDI Flows: An Overview, in Effect of Treaties on Foreign Direct Investment, supra note 9, at xlix-l. The fact that states are entering into such commitments under the law (both national and international) would certainly support using these developments as evidence of opinio juris. Indeed, the relevant changes to national law in the direction of a liberal investment regime could also support an argument on the basis of general principles of law. Nor is there evidence, as would be implied by Guzman’s “economic” rationale for LDCs’ conclusion of BITs, that market-oriented changes to national laws were intended to benefit only select investors from specific BIT partners. The evidence that we have suggests that most of these national laws sought to benefit investors generally. This makes sense as particularized benefits to only certain foreign investors, even if they had been attempted, would likely have been short-lived given the MFN protections accorded under most BITs, while domestic legal reforms suggesting that foreign investors would receive greater rights than local investors could prove politically controversial. For a specific example of the use of BITs as a device to improve conditions for all investors, national or foreign, see Stephan W. Schill, Tearing Down the Great Wall: The New Generation Investment Treaties of the People’s Republic of China, 15 Cardozo J. Int’l & Comp. L. 73, 92-93 (2007) (discussing Chinese efforts to use its BITs to redress local rule of law shortcomings).

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commitments to particular investors via contract.65 Depending on the circumstances, neither of these imposes only “reputational” constraints on host states’ subsequent actions towards investors. Both also offer plausible alternative courses of action for those seeking to “defect” from Guzman’s alleged prisoners’ dilemma.66 Accordingly, it is unlikely that states ratify BITs only in order to resolve the dynamic inconsistency problem, and it is unlikely that these actions therefore have no relevance to the continued viability of traditional rules of custom. BITs were a marginal improvement over political risk insurance and investment contracts as credible commitment devices, but, as recent efforts to attempt to enforce arbitral decisions against Argentina demonstrate,67 it is a mistake to assume that BITs provide a foolproof method of forcing compliance on a reluctant state.68 It is reasonable to inquire 65

66

67

68

Of course, all countries have at least one other option: establish credible and independent national courts that foreign investors can trust to affirm host states’ commitments to them. Guzman has claimed that “no consensus” exists that investment contracts are binding under international law. See Guzman, supra note 34, at 79. For a forceful rebuttal of this argument, see Jason Webb Yackee, Pacta Sunt Servanda and State Promises to Foreign Investors Before Bilateral Investment Treaties: Myth and Reality, 32 Fordham Int’l L.J. 1550 (2009) (surveying the arbitral case law affirming the enforceability of investor contracts with host states under a number of international legal doctrines, including expropriation). Note that arbitrators have disagreed about why states need to respect the vested interests of investors. See, e.g., Ole Spiermann, Applicable Law, in The Oxford Handbook of International Investment Law 89, 94-99 (Peter Muchlinski et al. eds., 2008) [hereinafter Handbook of International Investment Law]. Arbitrators have also suggested, however, that ordinary commercial breaches of contract by a government do not violate international law absent other government conduct that violates international law, such as a denial of justice. See, e.g., Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 87, U.N. Doc. A/56/10 (2001). For reports on the battle between CMS and Argentina over payment of the ICSID Award in favor of CMS, see Luke Eric Peterson, Round-Up: Where Things Stand with Argentina and Its Many Investment Treaty Arbitrations, 1 Inv. Arb. Rep. 9 (2008), available at http://www.iareporter.com/Archive/IAR-12-17-08.pdf. For an attempt by an ICSID tribunal to deal with the enforcement “gap” in investor-state arbitration, see Sempra v. Argentine Republic (ICSID 2009), http://ita.law.uvic.ca/documents/Sempra-Stay.pdf (directing Argentina to put 75 million into an escrow account if it wishes to stay an award against it, pending pursuit of annulment). BITs are more reliable “commitment devices” than investment contracts at least insofar as the latter do not include enforceable arbitration clauses; in addition, BITs provide investors protection in the myriad instances in which they have no contracts with a host state or where their injuries result from harms that are not cognizable in contractual terms. In addition, BITs extend protection to risks that exceed the political risks covered by most forms of political risk insurance (even when this is available) and enable the investor to bring a claim against the host state. Investor-state dispute settlement under a BIT also enables investors to control the kinds of issues that would be presented to arbitrators for their decision; investor-state arbitration assists in depoliticizing disputes in a way that is not possible under the subrogation schemes of political risk insurance mechanisms

33 José E. Alvarez, The Once and Future Foreign Investment Regime

why states take the trouble to negotiate BITs when these treaties only contribute to, but do not wholly resolve, the dynamic inconsistency problem. It is probable that LDCs turn to BITs for other reasons as well. As scholars of the New Haven School have repeatedly pointed out, states usually have multiple reasons—and often face competing pressures from domestic constituencies—for entering into international commitments. It would be strange indeed if BITs, alone among treaties, were an exception to this general rule. As observers of both BITs and earlier FCNs have suggested, while it is always difficult to speculate about the motivations of governments, distinct government elites are, in all likelihood, motivated to enter into investment treaties for political as well as economic reasons. Given the evident fact that in some cases a country that enters into an investment agreement with the United States cannot realistically expect increases in U.S. capital flows as a result,69 an LDC with a checkered history of investorstate relations might adhere to the exceptionally investor-protective U.S. Model BIT, circa 1984-87, in order to send a forceful signal that it is ready to protect all foreign investors or that it has now reformed its practices to be more market friendly.70 The intent to send this general message is especially likely if, as in most cases, it would be politically untenable to extend treaty guarantees only to U.S. investors and to no one else.71 Some developing countries may also have entered into such treaties to entice more aid from the U.S. Congress or from other U.S. allies or to show the IMF that it was serious about complying with that organization’s structural adjustment demands. Others may have concluded BITs with the United States to express solidarity with the United States vis-à-vis other issues—or even to signal that it would now vote with the United States should NIEO-type resolutions be proposed in the General Assembly.

69

70

71

where the home state of the investor (and issuer of the insurance) assumes the investor’s claim. It needs to be stressed, however, that all of these are only relative improvements on alternative commitment devices. Given the difficulty of enforcing damages awards against entities with sovereign immunity, none of these—BITs, investment contracts, or political risk insurance—ensure that states’ commitments to private parties will be fully respected. Indeed, as veteran U.S. BIT negotiators have repeatedly pointed out, U.S. negotiators routinely alerted prospective BIT partners not to expect that BITs would necessarily increase such flows from U.S. investors, and U.S. investors frequently resisted attempts by prospective BIT partners to include investment promotion devices within such treaties. See, e.g., Vandevelde, supra note 48, at 32; Kenneth J. Vandevelde, Investment Liberalization and Economic Development: The Role of Bilateral Investment Treaties, 36 Colum. J. Transnat’l L. 501, 524 (1998). See, e.g., Akira Kotera, Regulatory Transparency, in Handbook of International Investment Law, supra note 66, at 617, 624 (describing the motivations behind BITs with Eastern European countries, including the U.S.-Poland BIT). For consideration of the evidence that BITs may increase a party’s general appeal to all foreign investors and not merely to investors from the particular signatory country, see, for example, Büthe & Milner, supra note 17, at 171.

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As New Haven School scholars would point out, it is also important to seek to understand the domestic constituencies within an LDC that may be pressing for or against BIT ratification. Even some internal elites within an LDC may favor concluding a strong investor-protective BIT with the United States if they believe that such a treaty could make the national rule of law more stable or predictable.72 These are all credible rationales for adhering to BITs. Unlike the single (inadequate) rationale offered by Guzman, none of these is inconsistent with the text of many of these treaties—which affirm the continued validity of relevant customary norms, from the Hull Rule to “full protection and security.”73 Even assuming Guzman is correct that the LDCs’ turn to BITs was principally driven by “economic” concerns, it is hard to see why this undercuts the potential for BITs to re-affirm customary international law. Even if LDCs enter into such agreements only for economic reasons, this rationale is not necessarily inconsistent with support for customary norms. As New Haven School scholars would be among the first to point out, economic self-interest is one reason states may express support for a rule of custom. The need to secure scarce capital is not inconsistent with expressing continued opinio juris in support of customary law and may well be a reason to do so. Indeed, as both realists and New Haven scholars would contend, most rules of custom (or in treaties) exist because relevant states believe the rules are in their political, economic, or other interests. These rationales do not undercut the existence of opinio juris. Guzman ignores the salient facts that strongly suggest why, particularly after the end of the Cold War, developing countries (as well as those emerging from socialism) were likely to support the traditional customary protections for investors. The explosion in the number of investment agreements—what Vandevelde calls the “global era” of such agreements—is rooted in a global (if perhaps short-lived) victory for market ideology.74 As noted, the proliferation of BITs has been accompanied by pervasive changes in how both foreign and national investors are treated under national laws. This turn to liberal capital flows and to respect for property rights has, of course, also been encouraged by the “good governance” efforts of the World Bank, the IMF, and other market participants. The vast bulk of BITs came at the same time that mul-

72

73

74

As Thomas Wälde has suggested, this would follow from application of Putnam’s analysis of the two-level games often undertaken through the conclusion of international legal commitments. See, e.g., Wälde, supra note 45, at 91; see also Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Int’l Org. 217 (2000) (explaining how fragile government elites in Europe turned to human rights treaties after WWII to buttress their states’ commitment to democracy). In addition to the language affirming the Hull Rule and customary international law “minimum” standards of treatment (such as “fair and equitable treatment” and “full protection and security”), the typical U.S. BIT also re-affirms that investors have a right, under the treaty, to treatment no less than that provided under international law. See tbl. But cf. Guzman, supra note 34, at 95 (stating that BITs do not contain language affirming customary international law). Vandevelde, supra note 9, at 21.

33 José E. Alvarez, The Once and Future Foreign Investment Regime

tilateral organizations—from the World Bank to the IMF to UNCTAD—were also changing their perspective on free capital flows and their impact on development. Guzman ignores these multilateral dimensions of the investment regime as well as the impact of other significant global events, such as the establishment of the WTO in 1994, along with its complementary rules for reducing states’ reliance on trade-related investment measures (TRIMs), for protecting trade in services (GATS), and for protecting intellectual property rights (TRIPS). The TRIMs Agreement has helped to encourage the inclusion of comparable restrictions on trade-distorting performance requirements within investment agreements, and there is significant overlap with the goals sought to be achieved through the TRIPS and GATS agreements as well.75 Guzman’s alleged prisoner’s dilemma exists in a rarified vacuum unconnected to how the financial constraints faced by LDCs in all likelihood affected the motivations of their government officials as well as other powerful internal actors. Quite apart from the odd premise that capital flows constitute a zero sum game,76 his prisoner’s dilemma ignores the consequences brought on by the disintegration of the Soviet bloc or by the debt crisis of 1980s. It ignores the wider ripples of decline in private lending during this period, which, as Vandelvelde points out, had by 1980 “accounted for half of all capital flows to developing countries.”77 It ignores the massive federal deficits of the Reagan era, which prompted extensive borrowing by the United States and which put further pressure on private markets for credit. It also ignores reductions in development assistance at the behest of that same Administration—and the severe impact on LDCs of all of these events. Guzman ignores, in short, the possibility that LDCs had, as a group and as individual states, as well as influential elites within those states, more than sufficient reasons to abandon any lingering hostilities to traditional customary protections for foreign investment and more than enough reasons to adopt (or to resume) policies, such as concluding investment agreements with investors and investment treaties with states, intended to create a generally favorable environment for capital flows (and not merely for investors from specific BIT parties). Indeed, it would be extraordinary if, given all of these developments, rational developing state governments would have continued to adhere to the NIEO.78 75 76 77 78

For a discussion of the impact of these developments, see, for example, id. at 19-28. For one critique of such “mercantilistic” zero-sum thinking as applied to the investment regime, see, for example, Wälde, supra note 45, at 72-73. Vandevelde, supra note 9, at 21. Guzman argues that if LDCs were intending to affirm customary norms they would have signed multilateral treaties rather than bilateral ones. See Guzman, supra note 34, at 84. This is a non sequitur. BITs vary in their terms—although they do not generally undermine by their content anything in customary international law. The fact that states may opt to preserve different standards of treatment having nothing to do with customary law, and, subject to MFN, extend only certain of these preferences to some treaty partners may drive them to bilateral and regional agreements. The absence of a multilateral agreement among LDCs or between LDCs and developed states with respect to investment says no more about investment agreements’ impact on customary norms than does the failure of OECD members to conclude the Multilateral Agreement on Investment (MAI). There is no question that OECD members share among themselves relatively

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V. Beyond Guzman: The Future of the Investment Regime 624

Getting past Guzman’s oversimplified account of the “coerced” origins of BITs is essential to understanding the complex reality of the contemporary investment regime and its likely future. Whatever else it may be, today’s investment regime is not the product of a zero sum hegemonic or imperial game played at the expense of capital importers. As we are more acutely aware than ever in the United States, today’s flows of investment are not merely one way. For some time the United States has not only been the world’s leading exporter of capital flows but also the world’s leading recipient of foreign investment capital. We share this duality with others, such as Brazil, Russia, India and China—that is, the BRICs, which are all leading recipients and exporters of capital. Indeed, of the net stock of outward foreign direct investment capital, one fifth (or about 300 billion in 2007) comes from multinational corporations (MNCs) from emerging markets.79 Emerging market MNCs are now important players in the world market. Of course, among the most dynamic MNCs are those from the Chinese mainland.80 Stephan W. Schill has explored what China’s status as both capital exporter and capital importer has meant for the Chinese BIT program, which is second only to Germany’s in the number of BITs concluded.81 Schill traces the evolution of Chinese BITs and finds a significant change occurring in the late 1990s when that country broke with its long-standing reservations concerning national treatment and comprehensive investor-state dispute settlement. Schill points out that while, until 1979, the PRC government associated itself with other LDCs in support of the NIEO, it radically changed its mind in order to attract foreign investment. He shows that, particularly as the PRC evolved into both a capital importer and capital exporter, that country’s reservations to the international legal guarantees contained in Western BITs crumbled. Consistent with the history suggested in Part IV, Schill describes how Chinese BITs evolved from the relatively weak treaty concluded with Sweden in 1982 (which did not contain investor-state dispute settlement at all), through treaties predating the PRC’s (1990) signature to the ICSID convention (which offered inves-

79 80

81

compatible views about the applicable customary norms. As Vandevelde suggests, the failure of the MAI “may have been in part the result of that very consensus: that is, because these countries already provide a favorable environment for investment as a matter of national policy, most of the participants had little to gain from the agreement and thus, once negotiations were underway, the focus shifted to that which they would be conceding.” Vandevelde, supra note 9, at 33. Of course, there are some multilateral agreements that extend rights to foreign investors; the Energy Charter Treaty is the most prominent. Sachs & Sauvant, supra note 63, at xxxii-xxxiii. For one account of the massive increases in Chinese outflows of foreign investment from 1992 to the present, see, for example, Press Release, Vale Columbia Center on Sustainable International Investment, Chinese Multinationals Make Steady Progress (Oct. 22, 2008) [hereinafter Vale Columbia Press Release]. Schill, supra note 64, at 75. As of 2008, Germany had signed 139 BITs with 125 in effect, while China had over 120 signed BITs. See Braun, supra note 41.

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tors an arbitral remedy only with respect to the narrow question of the amount of compensation due in case of expropriation), to a “new generation” of BITs in the late 1990s and early 2000s (which finally combined broad guarantees of national treatment, clearer compensation standards, an umbrella clause, and capital transfer provisions with a comprehensive and effective investor-state arbitration clause).82 Schill notes that the new generation of Chinese BITs is not limited to treaties concluded with LDCs (where Chinese investors would be expected to be the principal beneficiaries) but also includes recent treaties with capital exporting European states, such as its BIT with the Netherlands (2001) and with Germany (2003).83 Schill explains changing Chinese attitudes toward the international investment regime in terms that are strikingly different from Guzman’s prisoner’s dilemma. For Schill the PRC’s new generation of BITs was “brought about by the continuous exposure to the needs and requirements of the global economy and China’s increasing engagement with the international community.”84 While the PRC once sought to uphold the structures of its socialist economy by resisting commitments on national treatment that would put its state-owned enterprises on the same plane as foreign investors, Schill contends that “China’s interest in protecting its own investment ventures abroad” led to its acceptance of an ever stronger BIT, as would be expected of any state that needs to balance its dual position as both capital exporter and capital importer.85 As the new generation of PRC BITs suggests, those treaties are no longer about protecting capital from the West. Today’s investment regime is increasingly universal in scope. By the end of 2008, more countries had entered into at least one investment protection agreement (179 countries) than had joined the WTO.86 Even countries that once adhered to the Calvo doctrine have now agreed to permit investor-state disputes to be heard outside their own courts, by international arbitration. Today, when twenty-seven percent of BITs are between developing countries87 and a considerable portion of capital flows going to the West as well as coming from the East, investment agreements cannot be explained simply as variations of the one-sided capitulation agreements once concluded between colonial powers and the periphery. While model investment agreements from Europe and the United States have served as the template for the world’s network of some 3000 investment agreements, those entering such agreements today are a cosmopolitan lot. Apart from China, today’s evolving investment regime includes, as prominent players, countries such as Cuba. Cuba—whose revolution was characterized by opposition to the rights of 82

83 84 85 86 87

Schill, supra note 64, at 89-113. China introduced an investor-state arbitral clause in its BITs for the first time in 1998, in a treaty with Barbados; its first use of such a clause with an industrialized nation was with Germany in 2003. See Braun, supra note 41. Schill, supra note 64, at 93. Id. at 82. Id. at 99. U.N. Conference on Trade & Dev. [UNCTAD], The Development Dimension of International Investment Agreements, 2, U.N. Doc. TD/B/C.II/MEM.3/2 (Dec. 2, 2008). See, e.g., Sachs & Sauvant, supra note 63, at xxxiv.

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foreign investors88—now has concluded about as many investment protection agreements as the United States(62).89 And Cuba’s BITs are not very different from the highly investor-protective U.S. Model BIT of 1984. The Cambodia-Cuba BIT of 2001, for example, includes a very expansive definition of protected investment (including all forms of property, stocks, any claims to money or performance under contract, and intellectual property rights).90 It protects investors as well as their returns; accords fair and equitable treatment and full protection and security; and promises most favored nation status as well as “fair and equitable treatment.”91 Students of the infamous Sabbatino decision92 of 1964, where the U.S. Supreme Court refused to find the Cuban nationalizations of U.S. properties illegal under international law, will be amused to discover that the Cuba-Cambodia BIT even includes a provision on expropriation that affirms, as does the U.S. BIT of 1984, the need to extend prompt, adequate, and effective compensation.93 As the Cuba-Cambodia BIT suggests, the United States’ affection for free capital flows is now widely shared—and even includes governments that do not identify their economies as capitalist. It is difficult to see such countries—or other leading BIT signatories such as Egypt—as tools of hegemonic empire. Most countries now worship at the shrine of David Ricardo’s theory of comparative advantage. Virtually all nations now regard the mutual flows of transnational capital as indispensable for economic growth. Whatever they once were, investment agreements are not now one-sided tools for the imposition of Western power. Nor are leading players who are signing such agreements to protect their foreign investors—countries such as Cuba, China or Egypt—easily characterized as dupes of Western capital.

88 89 90 91 92 93

See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). La Industria Cubana, http://www.cubaindustria.cu/webs/acuerdos_protec_inver.htm. Agreement Concerning the Promotion and Protection of Investments, Cambodia-Cuba, art. I(1), May 28, 2001 [hereinafter Cambodia-Cuba BIT] (definition of “investment”). Id. arts. II, III, and VI. Sabbatino, 376 U.S. at 398. The Cambodia-Cuba BIT, supra note 90, art. IV, provides: Each Contracting Party shall not take measures of expropriation, nationalization, or otherwise subjected to any other measures having legal nature similar to nationalization or expropriation (hereinafter referred to as “expropriation”) against the investments of an investor of the other Contracting Party except under the following conditions: a. the measures are taken for a lawful purpose, for public interest and under due process of law; b. the measures are non discriminatory basis [sic]; c. the measures are accompanied by provisions for the payment of prompt, adequate and effective compensation. Such compensation shall amount to the fair market value of the investments affected immediately before the measures of expropriation became a [sic] public knowledge. Such market value shall be determined in accordance with internationally acknowledged practices and methods or, where such fair market value cannot be determined, it shall be such reasonable amount as may be mutually agreed between the Contracting Parties hereto, and it shall be freely transferable in the freely convertible currency in which the investment was made or in any other currency agreed upon by both Contracting Parties.

33 José E. Alvarez, The Once and Future Foreign Investment Regime

But the best evidence of the changing dynamics and players of the contemporary investment regime may be the changes in U.S. investment policies over time. In recent years, the United States, along with many Western countries, has developed a more cautious attitude toward foreign investment. It is wrong to portray the United States of today or its current BIT program as driven by a single-minded quest to protect the interests of U.S. investors overseas. The United States, the ostensible leader of the investment regime and the author of what was once the most investorprotective treaty on earth, now shares with many countries, including many LDCs, fears about whether granting reciprocal rights to all investors will interfere with its sovereign prerogatives or result in challenges to its federal or state laws. For some time foreign takeovers of U.S. companies, including former public utilities, have led to debates over the power of U.S. federal and state governments to influence employment; patrol national security; preserve local jobs and prevent outsourcing; encourage technological innovation; and protect intellectual property or national security. In addition, as the United States, along with its European allies, has faced a greater number of investments from the BRICs, new concerns have emerged in some quarters about such investments. Whether these concerns stem from racism, economic nationalism, or other reasons, emerging market MNCs’ attempts to take over Western companies have sometimes proven as sensitive for the United States as incoming Western capital has sometimes been for LDCs.94 In the wake of the highly controversial Dubai Ports deal, the United States has strengthened its ability to engage in the screening of incoming foreign investment under the Foreign Investment and National Security Act of 2007, which among other things elevates the level of scrutiny that the U.S. government will now accord to foreign investments owned or controlled by foreign governments, including state owned enterprises and sovereign wealth funds.95 The country which has done the most to undermine the need for investment screening around the world now engages in a form of such screening. The number of cases examined by the U.S. government entity charged with national security screening of investments, the Committee on Foreign Investment in the United States (CFIUS), tells the story of the rising level of U.S. concerns. In 2005, the CFIUS had 65 filings of planned mergers or acquisitions; in 2006 the number went to 113; in 2007 it looked at 147, and in 2008 it had 165 filings, even though the amount of foreign investment coming into the United States was substantially less than in prior years.96 The CFIUS screening process has had, in all probability, a certain chilling effect on incoming acquisitions; it exerts a shadow 94

95

96

Presentations at Five Diamond International Investment Conference, Global Players from Emerging Markets. Indeed, the program on foreign investment at Columbia Law School is now completing a project on whether the United States is actually ready for FDI and especially mergers and acquisitions from China. See Vale Columbia Press Release, supra note 80. See, e.g., Mark E. Plotkin & David N. Fagan, The Revised National Security Review Process for FDI in the US, 2 Colum. FDI Persps. (2009), available at http://www.vcc.columbia. edu/pubs/documents/Perspective2-PlotkinandFagan.pdf. Id.

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over foreign mergers and acquisitions that exceeds the small handful of prospective investments that are formally blocked through that government process. Moreover, the United States’s decision to turn towards enhanced national security screening is inspiring others—such as Canada, Russia, China, Japan and Korea—to do the same.97 Although most of these countries formally limit investment screening to cases that threaten “national security” interests, it is not clear how many of those efforts will slide into familiar investment screening intended to protect more general economic concerns—as has long been the case in Canada. The prospect of this occurring is high, particularly at a time of declining levels of employment and frequent bankruptcies by national industries and particularly since the new legislation or regulations authorizing investment screening will not likely include a comprehensive or transparent definition of “national security.”98 The increased sensitivity within the United States posed by the fact that it is at the receiving end of foreign investment flows is clearly indicated by the changes over the past twenty years to the U.S. BIT program. While, as discussed, the Chinese BIT program appears to be evolving towards greater acceptance of what Schill considers prevailing “international standards” toward the treatment of foreign investors,99 the U.S. BIT program has been going in the opposite direction. The accompanying table compares certain provisions from the 1984 Model BIT with the 2004 Model Treaty, which the United States now uses in its negotiations. Comparing the two texts suggests the extent to which the United States’s experience, particularly as a defendant under the NAFTA’s investment chapter over the past ten years, has made it considerably more cautious about extending treaty-based protections to foreigners. The United States, which since 1994 has faced a number of cases brought by Canadian investors challenging U.S. federal and state laws under the investment chapter of the NAFTA, is no longer as sanguine about proposing open-ended relative or absolute guarantees to foreign investors or about its ability to comply with these.100 As a comparison of the language of the 1984 and 2004 Model BITs demonstrates, the United States has now sought to “balance” the rights accorded investors with its rights to regulate to protect health, safety, and the environment.101 It has also nar97

See, e.g., Budget Implementation Act, 2009, § 453 (Can.) (amending the Investment Canada Act to permit government screening of incoming foreign investment if there are reasonable grounds to believe that it could be “injurious to national security”). 98 Neither the U.S.’s Foreign Investment and National Security Act of 2007 nor its underlying regulations clearly define the crucial concept of “national security.” 50 U.S.C. App. § 2170 (2009); 31 C.F.R. pt. 800 (Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons). 99 Schill, supra note 64, at 113-15. 100 For a more thorough comparison of the 2004 and earlier U.S. Models, see Kenneth J. Vandevelde, A Comparison of the 2004 and 1994 U.S. Model BITs: Rebalancing Investor and Host Country Interests, in International Investment Yearbook, supra note 30, at 283. 101 See in particular the new language added to the preamble and new provisions such as articles 12 and 13. See 2004 U.S. Model BIT, supra note 15.

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rowed the tautological definition of “investment” by, for example, indicating that some forms of debt (such as claims for payment for the sale of goods or services, or licenses that do not provide rights under local law) should probably not be considered to be covered by the treaty.102 The United States has narrowed the scope of the national and MFN treatment obligations by imposing fewer constraints on the sectors that a party can declare exempt from those obligations,103 exempting from these obligations local government measures,104 actions taken in compliance with the TRIPs Agreement,105 government procurement,106 and subsidies or grants provided by state parties.107 In addition, investors can no longer claim that, even where they have not been the subject of a violation of national or MFN treatment, they have still suffered from “arbitrary and discriminatory” action, because that clause no longer appears in the 2004 Model.108 The 2004 U.S. Model adheres to examples set by the NAFTA’s Chapter Eleven and has eliminated the ‘umbrella’ clause in the 1984 Model.109 Although under the 2004 Model investors can still bring investor-state claims based on their written investment contracts,110 apparently this only enables them to make such claims in instances involving host states’ violations of other guarantees provided in the treaty, such as violations of fair and equitable treatment or violations of national treatment. Accordingly, a breach of even a written investment contract no longer suffices to prompt an investor-state treaty claim. The scope of the “minimum standard of treatment” has been dramatically limited in scope, in accord with the NAFTA Commission Interpretation, issued on July 31, 2001, of a comparable provision in that treaty.111 Investors are now accorded only that treatment which they would have been accorded in any case under “customary international law minimum standard of treatment of aliens,” which is expressly stated not to create additional substantive rights and does not include breach of another provision of the treaty or of any separate international agreement.112 Further, the guarantee 102 See id. art. 1, nn.1, 2 (these notes are new additions). 103 Compare Vandevelde, supra note 48, app. A-3, 21 (1984 Model BIT article II), with 2004 U.S. Model BIT, supra note 15, arts. 3(1), 4(1). 104 2004 Model BIT, supra note 15, art. 14(1). 105 Id. 106 Id. art. 14(5). 107 Id. 108 Compare Vandevelde, supra note 48, app. A-3, 21 (1984 Model BIT article II(2)), with 2004 U.S. Model BIT, supra note 15, art. 5(1). 109 See Vandevelde, supra note 48, app. A-3, 21 (1984 Model BIT article II(2)). 110 See 2004 U.S. Model BIT, supra note 15, art. 24(1). Compare the definition of “investment contracts” in the 2004 Model with the broad definition of “investment” in the 1984 Model. See id. art. 1; Vandevelde, supra note 48, app. A-3, art. I(b) (the 1984 U.S. Model BIT). 111 NAFTA Free Trade Comm’n, Notes of Interpretation of Certain Chapter 11 Provisions (July 31, 2001). 112 See 2004 U.S. Model BIT, supra note 15, arts. 5(2), 5(3).

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of “fair and equitable treatment” is essentially limited to what once were designated as “denials of justice,”113 while “full protection and security” is limited to failure to accord “police protection.”114 Yet a further limitation on the investors’ rights may be suggested by Annex A’s narrow definition of the meaning of “customary” law (limited to the “economic” rights of aliens).115 Host states’ obligations to make public all investment-related laws, regulations, or administrative practices and procedures are now limited to those acts having “general application.”116 An express provision assuring investors’ rights to pursue claims in national courts is now omitted, replaced by a “transparency” provision that excludes from investor-state arbitral enforcement an investor’s right to participate in national administrative proceedings.117 Investors’ absolute rights in cases of expropriation have now been limited by making that clause inapplicable to the revocation, limitation or creation of intellectual property rights when these are in accord with the TRIPs Agreement118 and by requiring that claims of taxation-based expropriation need to be submitted first to both state parties’ tax authorities (before such claims may be submitted to arbitration).119 More importantly, the expropriation guarantee now eliminates the “tantamount to expropriation” language,120 states that the expropriation treaty right is no different than that contained in customary international law,121 and subjects claims of “indirect” expropriation to a “case-by-case” inquiry that requires consideration of at least three balancing factors.122 Finally, the new U.S. Model states that, “[e]xcept in rare circumstances,” non-discriminatory regulatory actions taken to protect legitimate public welfare objections do not constitute “indirect” takings.123 Apart from restricting the scope of what once were far more open-ended investor protections, the new 2004 Model further restricts investor-state arbitrators’ discretion in a number of ways. The new investor-state dispute settlement provision imposes a number of constraints on investors, such as a requirement of ninety days 113 114 115 116

117 118 119 120 121 122

123

See id. art. 5(2)(a). See id. art. 5(2)(b). See id. annex A. See id. art. 10. Note that, while the 2004 Model expands on the traditional transparency obligations to include opportunities to participate in the adopting and application of investment-related policies, these provisions are not subject to investor-state arbitration. See id. arts. 11, 24(1)(a)(i). Compare Vandevelde, supra note 48, app. A-3, 22 (1984 Model BIT article II(6)), with 2004 U.S. Model BIT, supra note 15, arts. 11, 24(1). 2004 U.S. Model BIT, supra note 15, art. 6(5). Id. art. 21(2). Compare Vandevelde, supra note 48, app. A-3, 22 (1984 Model BIT article III), with 2004 U.S. Model BIT, supra note 15, art. 6(1). 2004 U.S. Model BIT, supra note 15, annex B(1). See id. annex B(4). The three factors are drawn from a leading takings case decided by the U.S. Supreme Court. See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-25 (1978). 2004 U.S. Model BIT, supra note 15, annex B(4)(b).

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notice indicating the legal and factual basis of each one of its claims124 and effectively a three year statute of limitations.125 In addition, the new requirement of transparency in investor-state claims and the requirement of amicus curiae briefs from nondisputing parties126 might be seen by some investors (and their lawyers) as imposing additional burdens and costs on bringing such claims. More significantly, host states may now avoid arbitral rulings against them by invoking a more expansive and arguably self-judging “essential security” clause127 or by invoking a wholly new exception permitting states to adopt or maintain “measures relating to financial services for prudential reasons”128 or non-discriminatory measures of general application “in pursuit of monetary and related credit policies or exchange rate policies.”129 In addition, as under the NAFTA’s Chapter Eleven, the new 2004 Model BIT includes a provision permitting the state parties to issue interpretations of their treaty from time to time that are binding on investor-state arbitrators.130 It should also be noted that while, in principle, investors subject to the new generation of U.S. BITs could attempt to secure the greater rights accorded to investors under prior U.S. BITs through the MFN clause, this possibility is seemingly precluded by a nonconforming measures clause that, while it does not appear in the text of the 2004 Model, has so far appeared in all U.S. BITs and Free Trade Agreements (FTAs) concluded since 2004. Under that clause, the United States reserves the right to adopt or maintain any measure that accords differential treatment to countries under any international agreement signed or in force prior to the date of entry into force of the BIT or the FTA. This means that covered investors or investments may not demand treatment as favorable as that guaranteed by any prior U.S. BIT or FTA, notwithstanding the MFN provision.131

124 125 126 127

Id. art. 24(2). See id. art. 26(1). Id. arts. 28, 29. See id. art. 18. The “which it considers” language in this provision suggests an attempt to make that clause essentially self-judging so that international arbitrators cannot secondguess a state’s determination that a measure that harms a foreign investor is needed to protect a state’s own determination of its own “essential security.” While some might suggest that this language still enables arbitrators to examine whether a state’s invocation of “essential security” was in good faith, at least one recent US BIT (the 2006 Peru-US Free Trade Agreement) makes that doubtful. In that treaty, the parties added a sentence indicating that “if a party invokes [the measures not precluded clause] in an arbitral proceeding … the tribunal or panel hearing the matter shall find that the exception applies.” If this is the case, today’s U.S. BIT protections can be rendered illusionary at the discretion of any host state willing to say that “essential security” made me do it. 128 2004 U.S. Model BIT, supra note 15, art. 20(1). 129 Id. art. 20(2). 130 See id. art. 30. 131 For a discussion of the impact of these MFN provisions, see Vandevelde, supra note 100, at 301.

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The new U.S. BITs, like the new Canadian investment agreements which they closely resemble,132 are more than twice as long as the treaties based on the 1984 Model. In this instance, however, a longer treaty generally means far more hedged investment guarantees. Unlike the new Chinese BITs described by Schill, the new U.S. BITs have become longer in order to protect the rights of the United States as sovereign. While the new U.S. Model does not protect host states as much as did the NIEO, it is not farfetched to suggest that its new text evinces a newfound respect for many of the “sovereign rights” that the United States ridiculed at the General Assembly during the 1970s. The 2004 U.S. Model, like the current Canadian model investment agreement, reflects a government that has faced the brunt of claims under the NAFTA, such as those that challenged California’s right to protect its ground water as a violation of the overly broad guarantees of fair and equitable treatment or asserted that a Mississippi jury award of punitive damages against a Canadian investor constituted an illegal taking of property.133 The newly hedged essential security clause also reflects awareness of ICSID decisions that have found Argentina liable for harms inflicted on foreign investors as a result of general measures that that nation took in response to a serious economic and political crisis.134 The changes to Canada’s and the United States’ model treaties also reflect a decade of pressure by numerous NGOs in both countries, some of which were involved in the successful effort to unravel the negotiations for the OECD’s Multilateral Agreement on Investment (MAI) and who remain convinced, rightly or wrongly, that the network of BITs and other investment agreements threaten the rights of federal, state or provincial governments within both countries to regulate in the public interest.135 It is possible to justify some of the changes to the 2004 U.S. Model as merely “clarifying” matters to better reflect what U.S. negotiators always intended.136 And some changes are obviously designed to bring post-2004 U.S. BITs more in line with the changes introduced in the NAFTA’s Chapter Eleven.137 Nonetheless, the extent of the changes between the 1984 Model and the 2004 version is striking, and it is hard to believe that arbitrators required to interpret a treaty concluded on the basis of these different models would come to the same conclusions, at least if they remain faithful to interpreting a treaty in conformity with its plain meaning in accordance with the Vienna Convention on the Law of Treaties. While it is possible to justify many of these changes as merely rectifying what would otherwise be an “imbalance” between the rights accorded investors and a na132 For the text of Canada’s latest model treaty for investment promotion and protection, see http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/ pdfs/2004-FIPA-model-en.pdf. 133 See, e.g., Methanex Corp. v. United States, 44 I.L.M. 1345 (2005); Loewen Group, Inc. v. United States, 42 I.L.M. 811 (ICSID 2003). 134 For a discussion of some of these cases, see Alvarez & Khamsi, supra note 30. 135 See generally Peter Muchlinski, Corporate Social Responsibility, in Handbook of International Investment Law, supra note 66, at 637, 637-87. 136 See, e.g., Vandevelde, supra note 100, at 287-89, 291. 137 Id. at 291.

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tion’s right to regulate in the public interest, this is not how business interests have seen it. From their perspective, the original 1984 U.S. Model intentionally emphasized the rights of the foreign investor and the new U.S. model constitutes a regressive retrenchment.138 U.S. businesses are more likely to agree with Thomas Wälde who has argued that the perceived “asymmetries” of traditional BITs (such as the 1984 U.S. Model) respond to the “pre-existing and inherent structural asymmetry in which foreign investors find themselves;” that is, BITs protect only foreign investors and provide an international forum only to them because host states would otherwise hold most of the cards as contractual party, regulator, sovereign, and judge.139 At least some of the changes to substantive investor protections in the U.S. Model BIT reflect concerns of members of the U.S. Congress who indicated, in connection with passage of trade promotion authority (TPA) in 2002, that henceforth the United States should not grant foreign investors “greater” rights than those enjoyed by U.S. nationals.140 The United States’ attempt to reduce the absolute expropriation guarantee to existing U.S. law appears to be a bow to such Calvo-like concerns. If this is the intent or the effect, what this means is that, ironically, the expropriation provisions contained in the Cuba-Cambodia BIT or in some Chinese BITs, for example, now provide investors with greater protections than do contemporary U.S. investment agreements.141 The evolving U.S. BIT is yet another reason why it is a caricature to describe the evolving investment regime as a neo-colonialist scheme to protect the capital interests of the metropole. Understanding how today’s BITs bite the metropole back is crucial to understanding the investment regime’s future. As the changes to the U.S. Model suggest, even when the metropole wins the cases filed against it (as the United States has to date), it finds itself chafing under the investment regime’s reciprocal constraints.142 138 See, e.g., Stephen M. Schwebel, The United States 2004 Model Bilateral Investment Treaty: An Exercise in the Regressive Development of International Law, 3 Transnat’l Disp. Mgmt. 1 (2006). 139 Wälde, supra note 45, at 55; see also Ian A. Laird, NAFTA Chapter 11: Canada’s Weakening of the International Rule of Law in the NAFTA Zone, in Investor Protection in the NAFTA and Beyond 141 (Alan S. Alexandroff ed., 2006). 140 See Bipartisan Trade Promotion Authority Act of 2002, Pub. L. No. 107-210, div. b (codified at 19 U.S.C. §§ 3801-3813 (2006)). The TPA’s objectives stated in relevant part: Recognizing that United States law on the whole provides a high level of protection for investment, consistent with or greater than the level required by international law, the principal negotiating objectives of the United States regarding foreign investment are to reduce or eliminate artificial or trade-distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States. …

19 U.S.C. § 3802(b)(3); see also Vandevelde, supra note 100, at 286 n.6. 141 Compare Cambodia-Cuba BIT, supra note 90, art. IV, with 2004 U.S. Model BIT, supra note 15, art. 6. 142 Of course, even during the colonial era, the metropole did not remain unaffected by developments, including legal developments, resulting from their engagements with

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More countries than ever before are, like the PRC and the United States, capital exporters as well as capital importers. The position of such countries in the investment regime might be said to approximate that of the individual in John Rawls’ “original position,” that is, someone who is placed behind a veil of ignorance and does not know what social or economic position she occupies within society and is therefore incentivized to articulate principles of justice that are fair to all.143 If this is indeed the case, the Chinese and United States’ respective BIT programs provide hints of the possible evolution of other countries’ investment agreements as those countries become capital exporters as well as capital importers, or as they react to investor claims filed against them. There is some evidence, based on the texts of the investment agreements that China and the United States are now negotiating, that both of these countries’ respective BIT programs, despite their different histories, are, over the past couple of years, evolving towards common positions on a number of crucial provisions. While the “new generation” of Chinese BITs described by Schill look more like the 1984 U.S. Model than the 2004 U.S. Model, a few of the PRC’s most recent investment agreements appear to have been influenced by the latest U.S. Model. While no single PRC BIT yet incorporates all the innovative provisions evident in the 2004 U.S. Model, it is striking that the China-Mexico BIT of 2008 adopts a hedged definition of the minimum standard of treatment that approximates the United States’s post-2004 articulation of “fair and equitable treatment,”144 that the China-India BIT of 2006 largely reproduces the United States’s new limits on “indirect takings,”145 and that the China-New Zealand FTA of 2008 includes a number of innovations to investor-state dispute settlement clearly inspired by the 2004 U.S. Model, such as requirements of transparency and advance notice for claims, along with provisions permitting the consolidation of claims and authorizing binding joint interpretations by the state parties.146 It is also notable that the Chinese-New Zealand FTA, like the 2004 U.S. Model, evinces comparable concerns with respect to labor and the environment.147 Given these developments, it is possible that the decisions of the PRC and the United States to launch renewed BIT negotiations in June 2008 will prove successful. Of course, the mere fact that the U.S. and Chinese BIT models are approaching common positions will not resolve the likely political battles over the prospect of enhanced U.S.-Chinese FDI flows. If high profile concerns in the United States over Chinese investments (evident in recent actions by CFIUS, for example) are overcome

143 144 145 146 147

the periphery. See generally Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (2005). See John Rawls, A Theory of Justice (1971). See Bilateral Investment Treaty, P.R.C.-Mex., art. 5, July 11, 2008. See Bilateral Investment Treaty, P.R.C.-India, Nov. 21, 2006, (in the Protocol, qualifying the meaning of “takings” for purposes of article 5). See Free Trade Agreement, P.R.C.-N.Z., arts. 153-54, 156-57, Oct. 1, 2008. See Memorandum of Understanding on Labour Cooperation and Environment Cooperation Agreement, both of which are integral parts of the China-New Zealand Free Trade Agreement.

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and a PRC-U.S. BIT emerges, such a treaty could have considerable impact on future investment agreements around the world—and not only because of the obviously huge capital flows which such a treaty would encompass. Such a treaty—between the erstwhile capitalist defender of the Hull Rule and its once most earnest critic—would concretize just how far international norms governing investment have come. The compromises forged in such a treaty between the rights of investors and the rights of states to regulate could inspire changes in other countries’ model BITs and might even inspire a new generation of leaders around the globe to attempt the arduous negotiations that would be required to replace the current “spaghetti bowl” of investment agreements with a single multilateral agreement. Absent such developments, however, the differences among the nearly 3000 investment agreements that now exist should not be underestimated. Despite the hints of common provisions emerging as between the BIT programs of the PRC and the United States, it is important to remember that we now have a world in which both the U.S.-Argentina BIT of 1991 (based on the United States’s most investor protective model of 1987) exists alongside agreements like U.S.-Uruguay BIT of 2004 (based on the 2004 U.S. Model). Further, these different U.S. investment agreements exist alongside PRC investment treaties that reflect that country’s various BIT models over the years. As is clear from UNCTAD’s latest attempt to survey developments in international investment agreements, there is enormous diversity among countries’ existing BITs—and there is no clear effort by leading BIT signatories to displace older treaties with a single harmonious text.148 When the diversity of these agreements is considered, alongside the evolving (and not always consistent) arbitral case law interpreting the agreements, it is clear that the investment regime is becoming, at least for now, more, not less, complex. Given that BITs differ, sometimes substantially, and that significant changes are sometimes made even to a single country’s preferred negotiating text over relatively short periods of time, investment law is not (yet) coalescing into coherent definitions of the substantive investment guarantees, residual exceptions for governmental regulatory power, or agreed procedures for initiating or conducting investor-state disputes. As the evolution of PRC and U.S. BITs over time makes clear, it is no longer accurate to state unequivocally that the “object and purpose” of all such treaties is to benefit foreign investors—not when some of their texts or preambles suggest that their purposes are at least as much to protect certain sovereign prerogatives.149 Further, as UNCTAD’s survey points out, Preferential Trade and Investment Agreements (PTIAS) in particular vary tremendously in their attention to investor rights;

148 See U.N. Conference on Trade & Dev. [UNCTAD], IIA Monitor No. 2, Recent Developments in International Investment Agreements, 1, U.N. Doc. UNCTAD/WEB/ITE/ IIT/2005/1 (Aug. 30, 2005) (noting the “increasingly complicated framework of multilayered and multi-faceted investment rules”). 149 See, in particular, the preamble of Norway’s 2007 Model BIT, available at http://www. regjeringen.no/upload/NHD/Vedlegg/hoeringer/Utkast20til20modellavtale2.doc.

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many of these may seek to achieve general economic integration more than investment protection.150 Given the substantive and procedural differences among existing investment agreements, we are entitled to expect, over the near term, greater disparities in the results of investor-state decisions than we have today, not because the arbitrators are less than competent or are unaware of prior precedent, but precisely because they may be conscientiously attempting to decide each case in accordance with the precise terms of the treaty before them. While none of this necessarily alters the continued potential for investment treaties and customary law to continue to influence one another,151 determining the applicable customary international law relating to investments may become more complex as states’ practices (and not merely their BITs) change. Absent renewed efforts to craft more harmonious investment treaties, there may not be much hope for establishing common global principles of investment rules through either a “Statement of International Investment Law” issued by an impartial group of academics or through decisions by a single arbitral Appellate Body.152 Nonetheless, it is important to remember that the investment regime is not merely evolving rapidly; it is young. Some seventy-three percent of the publicly available investor-state arbitral decisions have been rendered only in the past five years.153 As Brigitte Stern has suggested, the regime is in its adolescence and is still suffering growing pains.154 It is too early to predict with confidence what it will look like as an adult. What we can conclude is that, for all the reasons surveyed here, the regime is becoming more “democratic” than it once was and that investor-state arbitrations are not likely to be one-sided courts for capital.155 In the midst of today’s worldwide economic crisis, the investment regime will continue to evolve, but it is difficult to predict in which direction the regime will go. The most likely scenario is that, as occurred during prior economic crises, the investment regime will increasingly face growing protectionist threats.156 There is a 150 Recent Developments in International Investment Agreements, supra note 148, at 10-13. 151 For a description of the interaction between investment treaties and customary law, see José E. Alvarez, A BIT on Custom, 42 N.Y.U. J. Int’l L. & Pol. 17 (2009). 152 For proposals along these lines, see, for example, Karl Sauvant, José E. Alvarez & Kamil Gerard Ahmed, The Evolving International Investment Regime (forthcoming 2010). 153 Sachs & Sauvant, supra note 63, at xxxix. 154 Brigitte Stern, The Future of Investment Law: A Balance Between the Protection of Investors and the States’ Capacity to Regulate, in Sauvant, Alvarez & Ahmed, supra note 152. 155 But see Gus Van Harten, Investment Treaty Arbitration and Public Law (2007) (contending that investor-state dispute settlement is biased in favor of the investor). 156 See, e.g., John W. Miller, Nations Rush to Establish New Barriers to Trade, Wall St. J., Feb. 6, 2009, at A1 (reporting on, for example, “buy America” provisions in planned stimulus measures); Presentations at Five Diamond International Investment Conference,

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serious risk that today’s dismal economic conditions will be seen as a verdict not only on the lack of effective government regulation over the financial sector but on the investment regime as well. Many will find it difficult to distinguish investment agreements or the complimentary actions of international financial institutions—both of which encourage the free movement of capital—with the “unregulated free market economics” that are seen as partly to blame for the housing and banking crises in the United States. If the investment regime becomes synonymous in the public mind with unregulated capital flows, it may not long survive—even in the modified form suggested by the 2004 U.S. Model. Such perceptions, if allied with a sense that the regime only serves the interest of Western capital exporters, will intensify the political backlash against the investment regime that is increasingly evident outside the United States, particularly in Latin America, where BITs and FTAs tend to be seen in Guzman’s North/South terms, and where opposition to them is seen as part and parcel of opposition to U.S. power and influence.157 If the investment regime continues to be seen as the embodiment of empire or as a cause of the current economic crisis, retrenchment could be the order of the day, not only in the United States but around the world. We could be in for a freeze on the negotiation of all trade agreements (including investment agreements); resistance to ratifying investment agreements in the pipeline; attempts by many countries to withdraw from their existing investment agreements and/or investment arbitration; greater attempts to screen incoming foreign investment, to impose conditions (such as performance requirements) upon entry, or to impose other restrictive measures under national laws; and/or increased limitations on investment and arbitration rights in the next wave of investment agreements (and not only those originating in the United States or Canada). Future BITs may go far beyond the changes suggested by the 2004 U.S. Model to provide, for example, counter-claims against investors who fail to respect labor or environmental laws or who fail to satisfy a corporate code of conduct.158 At the same time, it is not at all clear that such sweeping changes in the scope and reach of investment treaties are in the offing. Few states may want to conclude allpurpose treaties that embrace (or seek to balance) everything from investment proGlobal Players from Emerging Markets (noting the recent rise in investment protectionism in OECD countries, with respect to South-South FDI, and the corresponding rise in demand for political risk insurance). 157 This is certainly how it is portrayed in states like Bolivia—which in May 2007 announced its withdrawal from ICSID—or Venezuela, whose policies have raised the ire of many foreign investors and which has announced its own intent to limit ICSID’s jurisdiction, or Ecuador—which has denounced nine of its BITs and indicated that it would not recognize ICSID jurisdiction over oil, gas, and mining investment disputes. See generally Karl P. Sauvant, Regulatory Risk and the Growth of FDI, in World Investment Prospects to 2011 67 (2007), available at http://www.vcc.columbia.edu/pubs/documents/WorldInvestmentProspectsto2011.pdf. 158 See, e.g., Howard Mann et al., IISD Model International Agreement on Investment for Sustainable Development (2005), available at http://www.iisd.org/ pdf/2005/investment_model_int_agreement.pdf.

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tection to corporate social responsibility and the right to regulate. States (and their citizens) may resist creating general courts of supranational jurisdiction capable of rendering decisions on the human rights and environmental responsibilities of both host states and multinational enterprises (MNEs) through investor-state claims. And given the fact that mutual capital flows increasingly affect and benefit everyone, the backlash against the investment regime may go only so far. After all, even Venezuela’s denunciation of the investment regime is (quietly) selective. At the same time that that government has been portraying ICSID as a tool of the West, it has been strengthening its ties and investment flows with other nations, such as Russia and Cuba.159 Less likely, but possible, is that the current worldwide economic crisis, and its adverse impact on capital flows,160 will produce a renewed sense of urgency about the need to protect and promote transnational investment flows. In this scenario, countries will increasingly turn not to economic protectionism but to re-invigorated international and national legal efforts to increase liberal capital flows. Countries could become more cautious about taking actions—from withdrawal from ICSID to efforts to resist enforcing investor-state arbitral awards—that might threaten, or might be perceived as threatening, such flows. Under this scenario, both China and the United States may come to a renewed recognition that neither they nor others would benefit from a full-fledged return to the Calvo doctrine. While a return to the unadorned pro-investor 1984 U.S. BIT model is not likely for the United States, we might see changes at the margins of U.S. investment policies—and the investment policies of other nations that emulate the United States. The United States (and others) could become less choosy, for example, about whether the foreign capital that it so desperately needs comes from state-owned enterprises or sovereign wealth funds or from emerging market MNEs, and the CFIUS (and others’ equivalent screening mechanisms) may grow more cautious about scaring off such investors. To the extent the U.S. government itself becomes the effective holder of formerly private enterprises, including financial institutions, it may become more difficult for it to complain about investments controlled by other sovereigns. If the United States becomes, in effect, the home of some of the largest state-owned enterprises, it can hardly afford to antagonize other sovereigns who do the same. This may yet become another instance where the changing places of the investment regime’s leading players may prompt unanticipated evolutionary changes in the investment regime. It is also possible that in the wake of the current economic crisis, the investment regime itself may become a battleground over the legality of some governments’ responses to that crisis. This could occur if challenges to some governments’ actions are filed under the WTO, in investor-state dispute settlement, or even under existing 159 See, e.g., Emily Morris, Cuba and Venezuela (Feb. 6, 2008), available at http://www.londonmet.ac.uk/londonmet/library/q11223_4.ppt. 160 See, e.g., Karl P. Sauvant, The FDI Recession Has Begun, 1 Colum. FDI Persps. (2008), available at http://www.vcc.columbia.edu/pubs/documents/KPSPerspective-FDIrecessionhasbegun_001.pdf.

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FCNs. Such challenges could be brought where, for example, government bailouts to national enterprises, such as national banks or national automakers, or conditions imposed under such bailouts, elicit complaints of violation of national treatment or violations of some BITs’ bans on certain performance requirements.161 VI. Conclusions When we situate investment agreements within the “larger context of world social events and processes,” as we are directed to do by the New Haven School, it becomes increasingly dubious to explain the once and future investment regime exclusively in North/South terms. Whatever it once was, it is untenable to claim that the investment regime remains a tool of Western capital interests. While the original goal of states in the North may have been to use BITs to respond to the needs of their MNEs and to impose their will on capital importing states, they did not succeed in doing so until the developing world itself became convinced of the need for liberal capital flows. Neither the demise of the NIEO nor the rise of BITs can be insulated from the dynamics of international politics. Both of these developments, along with complementary changes to national laws and the good governance efforts of international organizations, reaffirmed customary international legal protections for foreign investors. As the New Haven School would also have predicted, subsequent changes in the positivist rules of the regime—namely the content of investment agreements—have responded to the goals, aspirations, and conduct of the diverse participants involved in their evolving construction. Whether or not we approve of the changes to BITs and FTAs surveyed here, the international investment regime has become progressively “democratized” over time—at least to the extent that it now responds to the pressures of numerous non-state actors, including its principal attorney-general enforcers (foreign investors), arbitrators, legislators, and NGOs—for good or ill. Such pressures help to explain evolutionary changes such as those within the respective Chinese and U.S. BIT programs. The regime’s diverse participants have influenced 161 See, e.g., Anne Van Aaken & Jürgen Kurtz, The Global Financial Crisis: Will State Emergency Measures Trigger International Investment Disputes?, 3 Colum. FDI Persps. (2009), available at http://www.vcc.columbia.edu/documents/Perspectives3-vanAakenandKurtz-FINAL.pdf. Treaty claims resulting from emergency measures taken in the wake of the current economic crisis are not entirely farfetched even with respect to the United States, which except for claims under the NAFTA, is generally not exposed to BIT claims from major capital exporters into the United States. Some foreign car makers located in the United States might want to challenge some of the actions being taken by the United States that are principally intended to benefit U.S. automakers. While the United States does not have BITs with Japan and Germany, it does have FCNs with those states. Under relevant U.S. Supreme Court precedent, such FCNs are considered “self-executing” and could ground a cause of action in U.S. courts based on violation of national treatment. See, e.g., Asakura v. City of Seattle, 265 U.S. 332 (1924) (successful challenge to discriminatory provision in municipal law by Japanese pawnbroker based on U.S.-Japan FCN).

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the ever-changing rules of the game, and at least some of those participants believe that they are changing the rules in order to advance one or more of the eight New Haven values encompassed by the notion of “security.” At the same time, it is possible to read the rise and subsequent evolutions of investment treaties within the larger historical framework provided by Karl Polanyi in his highly influential work, The Great Transformation.162 It is easy to see the U.S. Model BIT of 1984 as the embodiment of Polanyi’s concept of utopian market liberalism, that is, an effort, grounded in the historical laissez-faire movement to expand the scope of the market, to reduce government interventions through privatization and liberalization, and to get prices right. In this picture, the 2004 U.S. Model (and others following its lead) embodies the “inevitable” protective countermovement stemming from the excesses of the earlier BIT, where the newly re-calibrated 2004 version is more apt to recognize and accept the “proper” role of government in regulating the market.163 In the midst of the current economic crisis, all of the participants in the investment regime are becoming more aware than ever before that, as McDougal and his associates saw long ago, the effects of economic interdependence cannot be avoided by any nation. What they will do with that realization in the context of the investment regime, however, remains a guess.

162 Karl Polanyi, The Great Transformation (2d paperback ed. 2001). 163 See generally Joseph E. Stiglitz, Foreword to id. at vii (connecting Polanyi’s original insights to the disenchantment with the “Washington Consensus” model of governing and development after the Asian crisis).

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U.S. Model BIT () Preamble Agreeing that fair and equitable treatment of investment is desirable in order to maintain a stable framework for investment and maximum effective utilization of economic resources, and…

U.S. Model BIT () Preamble Agreeing that a stable framework for investment will maximize effective utilization of economic resources and improve living standards… Desiring to achieve these objectives in a manner consistent with the protection of health, safety, and the environment, and the promotion of internationally recognized labor rights; Definition of Investment Definition of Investment Article I Article  (b) “Investment” means every kind of investment in the “investment” means every asset that an investor owns or territory of one Party owned or controlled, directly controls, directly or indirectly, that has the characteristics or indirectly by nationals or companies of the other of an investment, including such characteristics as the Party, such as equity, debt, and service and investcommitment of capital or other resources, the expectation ment contracts; and includes: of gain or profit, or the assumption of risk. Forms that an (i) tangible and intangible property, including investment may take include: rights, such as mortgages, liens and pledges; (a) an enterprise; (ii) a company or shares of stock or other interests (b) shares, stock, and other forms of equity participation in a company or interests in the assets thereof; in an enterprise; (iii) a claim to money or a claim to performance (c) bonds, debentures, other debt instruments, and having economic value, and associated with an loans;1 investment (d) futures, options, and other derivatives; (iv) intellectual and industrial property rights, (e) turnkey, construction, management, production, conincluding rights with respect to copyrights, cession, revenue-sharing, and other similar contracts; patents, trademarks, trade names, industrial (f) intellectual property rights; designs, trade secrets and know-how, and good- (g) licenses, authorizations, permits, and similar rights will; and conferred pursuant to domestic law;2, 3 (v) any right conferred by law or contract, and any (h) other tangible or intangible, movable or immovable licenses and permits pursuant to law . . . property, and related property rights, such as leases, (e) “associated activities” include the organization, conmortgages, liens, and pledges. trol, operation, maintenance and disposition of companies, branches, agencies, offices, factories or other 1 Some forms of debt, such as bonds, debentures and facilities for the conduct of business; the making, long-term notes, are more likely to have the characteristics performance and enforcement of contracts; the acquisition, use, protection and disposition of property of an investment, while other forms of debt, such as claims of all kinds including intellectual and industrial prop- to payment that are immediately due and result from the erty rights; and the borrowing of funds, the purchase sale of goods or services, are less likely to have such characteristics. and issuance of equity shares, and the purchase of 2 Whether a particular type of license, authorization, foreign exchange for imports. permit, or similar instrument (including a concession, to the extent that it has the nature of such an instrument) has the characteristics of an investment depends on such factors as the nature and extent of the rights that the holder has under the law of the Party. Among the licenses, authorizations, permits, and similar instruments that do not have the characteristics of an investment are those that do not create any rights protected under domestic law. For greater certainty, the foregoing is without prejudice to whether any asset associated with the license, authorization, permit, or similar instrument has the characteristic of an investments. 3

The term “investment” does not include an order or judgment entered in a judicial or administrative action.

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National and MFN Treatment Article II . Each party shall permit and treat investment, and activities associated therewith, on a basis no less favorable than that accorded in like situations to investment or associated activities of its own nationals or companies, or of nationals or companies of any third country, whichever is the most favorable, subject to the right of each Party to make or maintain exceptions falling within one of the sectors or matters listed in the Annex to this Treaty. Each Party agrees to notify the other Party before or on the date of entry into force of this Treaty of all such laws and regulations of which it is aware concerning the sectors or matters listed in the Annex. Moreover, each Party agrees to notify the other of any future exception with respect to the sectors or matters listed in the Annex, and to limit such exceptions to a minimum. Any future exception by either Party shall not apply to investment existing in that sector or matter at the time the exception becomes effective. The treatment accorded pursuant to any exceptions shall not be less favorable than that accorded in like situations to investments and associated activities of nationals or companies of any third country, except with respect to ownership of real property. Rights to engage in mining on the public domain shall be dependent on reciprocity.

‘Umbrella’ Clause Article II . Each Party shall observe any obligation it may have entered into with regard to investments.

National and MFN Treatment Article  . Each Party shall accord to investors of the other Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory. Article  . Each Party shall accord to investors of the other party treatment no less favorable than that it accords, in like circumstances, to investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory. New Exceptions Article  . Articles  [National Treatment],  [Most-FavoredNation Treatment],  [Performance Requirements], and  [Senior Management and Boards of Directors] do not apply to . . . iii. a local level of government . Articles  [National Treatment] and  [MostFavored-Nation Treatment] do not apply to any measure covered by an exception to, or derogation from, the obligations under Article  or  of the TRIPS Agreement, as specifically provided in those Articles and in Article  of the TRIPS Agreement. . Articles  [National Treatment],  [Most-FavoredNation Treatment], and  [Senior Management and Boards of Directors] do not apply to: (a) government procurement; or (b) subsidies or grants provided by a Party, including government-supported loans, guarantees, and insurance. ‘Umbrella’ Clause No ‘umbrella’ clause is included, but breaches of investment authorizations and arguments are still subject to investor-state dispute Settlement under Art  (I) (see below). But note that under definitions (Article I), “investment contracts” are limited to some types of written contracts between investors and the host state.

33 José E. Alvarez, The Once and Future Foreign Investment Regime Minimum Standard of Treatment Article II . Investments shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law. Neither Party shall in any way impair by arbitrary and discriminatory measures the management, operation, maintenance, use, enjoyment, acquisition, expansion, or disposal of investments. . Each Party shall provide effective means of asserting claims and enforcing rights with respect to investment agreements, investment authorizations and properties.

Minimum Standard of Treatment Article  Minimum Standard of Treatment8 . Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security. . For greater certainty, paragraph  prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligation in paragraph  to provides: (a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world; and (b) “full protection and security” requires each Party to provide the level of police protection required under customary international law. . A determination that there has been a breach of another provision of this Treaty, or of a separate international agreement, does not establish that there has been a breach of this Article. 8 Article  [Minimum Standard of Treatment] shall be interpreted in accordance with Annex A.

Annex A Customary International Law The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Article  [Minimum Standard of Treatment] and Annex B [Expropriation] results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article  [Minimum Standard of Treatment], the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.

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Expropriation Article III . Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropriation or nationalization (“expropriation”) except for a public purpose; in a non-discriminatory manner; upon payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general principles of treatment provided for in Article II (). Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known; include interest at a commercially reasonable rate from the date of expropriation; be paid without delay; be fully realizable; and be freely transferable at the prevailing market rate of exchange on the date of expropriation. Article XI . With respect to its tax policies, each Party should strive to accord fairness and equity in the treatment of investment of nationals and companies of the other Party. . Nevertheless, the provisions of this Treaty, and in particular Articles VI and VII, shall apply to matters of taxation only with respect to the following : (i) expropriation, pursuant to Article III…

Expropriation Article  . Neither Party may expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (“expropriation”), except: (a) for a public purpose; (b) in a non-discriminatory manner; (c) on payment of prompt, adequate, and effective compensation; and (d) in accordance with due process of law and Article [Minimum Standard of Treatment] () through (). . The compensation referred to in paragraph (c) shall: (a) be paid without delay; (b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (“the date of expropriation”); (c) not reflect any change in value occurring because the intended expropriation had become known earlier; and (d) be fully realizable and freely transferable. . If the fair market value is denominated in a freely usable currency, the compensation referred to in paragraph (c) shall be no less than the fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment. . If the fair market value is denominated in a currency that is not freely usable, the compensation referred to in paragraph (c)—converted into the currency of payment at the market rate of exchange prevailing on the date of payment—shall be no less than: (a) the fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing on that date, plus (b) interest, at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation until the date of payment. . This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights in accordance with the TRIPS Agreement, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such issuance, revocation, limitation, or creation is consistent with the TRIPS Agreement. Article  . Article  [Expropriation] shall apply to all taxation measures, except that a claimant that asserts that a taxation measure involves an expropriation may submit a claim to arbitration under Section B only if: (a) the claimant has first referred to the competent tax authorities (footnote omitted) of both Parties in writing the issue of whether that taxation measure involves an expropriation; and (b) within  days after the date of such referral, the competent tax authorities of both Parties fail to agree that the taxation measure is not an expropriation. Also see Annex A above.

33 José E. Alvarez, The Once and Future Foreign Investment Regime Annex B The Parties confirm their shared understanding that: . Article  [Expropriation and Compensation]() is intended to reflect customary international law concerning the obligation of States with respect to expropriation. . An action or a series of actions by a Party cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in an investment. . Article  [Expropriation and Compensation]() addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure. . The second situation addressed by Article  [Expropriation and Compensation] () is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure. (a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-bycase, fact-based inquiry that considers, among other factors: (i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred; (ii) the extent to which the government action interferes with distinct, reasonable investmentbacked expectations; and (iii) the character of the government action. (b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.

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Transparency Article II . Each Party shall make public all laws, regulations, administrative practices and procedures, and adjudicatory decisions that pertain to or affect investments.

Transparency Article  . Each Party shall ensure that its: (a) laws, regulations, procedures, and administrative rulings of general application; and (b) adjudicatory decisions respecting any matter covered by this Treaty are promptly published or otherwise made publicly available. Note that Article  imposes additional transparency obligations on states (including provisions requiring states to provide investors rights to participate in administrative proceedings) but these provisions are not subject to investor-state arbitration under article () below. Investor-State Dispute Settlement Investor-State Dispute Settlement Article VI Article  . For Purposes of this Article, an investment dispute . In the event that a disputing party considers that an is defined as a dispute involving (a) the interpretation of investment dispute cannot be settled by consultation and application of an investment agreement between a Party negotiation: and a national or company of the other Party; (b) the (a) the claimant, on its own behalf, may submit to arbiinterpretation or application of any investment authorizatration under this Section a claim tion granted by a Party’s foreign investment authority to (i) that the respondent has breached such national or company; or (c) an alleged breach of any (A) an obligation under Articles  through , right conferred or created by this Treaty with respect to an (B) an investment authorization, or investment. (C) an investment agreement; and . In the event of an investment dispute between a Party (ii) that the claimant has incurred loss or damage by and a national or company of the other Party, the parties reason of, or arising out of, that breach… to the dispute shall initially seek to resolve the dispute by But new requirements are imposed for -day advance consultation and negotiation, which may include the use of notice of legal and factual basis of each claim to be given to non-binding, third-party procedures. If the dispute canhost state under Article  (). not be resolved through consultation and negotiation, the Also no claim may be submitted if more than  years have dispute shall be submitted for settlement in accordance elapsed from date claimant acquired or should have acwith previously agreed, applicable dispute-settlement quired knowledge of breach (Article  ()). procedures. Any dispute-settlement procedures regarding The arbitral tribunal is directed to accept and consider expropriation and specified in the investment agreement amicus from non-disputing parties (Article  ()). shall remain binding and shall be enforceable in accorAlso note other special powers granted to arbitral tribunal dance with terms of the investment agreement, relevant under Article -, especially with respect to transparprovisions of domestic laws, and applicable international ency. agreements regarding enforcement of arbitral awards.

33 José E. Alvarez, The Once and Future Foreign Investment Regime General Exceptions Article X . This Treaty shall not preclude the application by either Party of measures necessary in its jurisdiction for the maintenance of public order, the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

General Exceptions Essential Security Article  Nothing in this Treaty shall be construed: . to require a Party to furnish or allow access to any information the disclosure of which it determines to be contrary to its essential security interests; or . to preclude a Party from applying measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests. Financial Services Article  . Notwithstanding any other provision of this Treaty, a Party shall not be prevented from adopting or maintaining measures relating to financial services for prudential reasons, including for the protection of investors, depositors, policy holders, or persons to whom a fiduciary duty is owed by a financial services supplier, or to ensure the integrity and stability of the financial system14 Where such measures do not conform with the provisions of this Treaty, they shall not be used as a means of avoiding the Party’s commitments or obligations under this Treaty. . Nothing in this Treaty applies to non-discriminatory measures of general application taken by any public entity in pursuit of monetary and related credit policies or exchange rate policies. 14 It is understood that the term “prudential reasons” includes the maintenance of the safety, soundness, integrity, or financial responsibility of individual financial institutions.

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Other New Provisions Article  . The Parties recognize that it is inappropriate to encourage investment by weakening or reducing the protections afforded in domestic environmental laws (footnote omitted). Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. . Nothing in this Treaty shall be construed to prevent a Party from adopting, maintaining, or enforcing any measure otherwise consistent with this Treaty that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. Article  . The Parties recognize that it is inappropriate to encourage investment by weakening or reducing the protections afforded in domestic labor laws. Accordingly, each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces adherence to the internationally recognized labor rights referred to in paragraph  as an encouragement for the establishment, acquisition, expansion, or retention of an investment in its territory. If a Party considers that the other Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. . For purposes of this Article, “labor laws” means each Party’s statutes or regulations, (footnote omitted) or provisions thereof, that are directly related to the following internationally recognized labor rights: (a) the right of association; (b) the right to organize and bargain collectively; (c) a prohibition on the use of any form of forced or compulsory labor; (d) labor protections for children and young people, including a minimum age for the employment of children and the prohibition and elimination of the worst forms of child labor; and (e) acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health. Article  . A joint decision of the Parties, each acting through its representative designated for purposes of this Article, declaring their interpretation of a provision of this Treaty shall be binding on a tribunal, and any decision or award issued by a tribunal must be consistent with that joint decision.

Chapter 34 The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law David D. Caron

It is an honor to take part in a work celebrating the extraordinary contributions of Professor W. Michael Reisman, a leading scholar and practitioner of international law, as well as a friend. Indeed, as someone who has been encouraged and inspired by all that he is, it is a deep pleasure to contribute to a volume of essays that not only reflects the broad range of Reisman’s thought but also manifests the respect and affection with which he is so widely regarded. To encourage foreign investment, governments not infrequently adopt national foreign-investment statutes that provide, substantively, assurances about how foreign investment will be treated and, procedurally, consent to non-national disputeresolution mechanisms, primarily arbitration under the auspices of the International Centre for the Settlement of Investment disputes (ICSID). As both a scholar and a practitioner of international investment law, Reisman is intimately familiar with the complex of questions that arise out of such statutes. This contribution revisits a topic about which he has written in this regard: understanding national foreigninvestment laws as unilateral acts under international law. Examining the arguably more difficult situation of unilateral oral declarations of “heads of state and ministers of developing countries … promising certain conditions or treatment for foreign investors,” Reisman, in an article coauthored with Mahnoush Arsanjani, concluded that such statements “could be binding as a matter of international law.”1 Yet in investorstate arbitration, even the characterization of a national foreign-investment statute, not to mention to mention an oral declaration, will often be hotly contested, and in this context, a tribunal may lose sight of the fact that a legislative act of a state, like all other acts of a state, can have meaning within several legal systems simultaneously. Furthermore, in arbitration, the proper interpretation of the national investment law, even if it is regarded as a unilateral act under international law, is also likely to be contested. 1

W. Michael Reisman & Mahnoush H. Arsanjani, The Question of Unilateral Governmental Statements as Applicable Law in Investment Disputes, in Völkerrecht als Wertordnung—Common Values in International Law, Festschrift für: Essays in Honour of Christian Tomuschat 409, 422 (P.M. Dupuy et al. eds., 2006).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 649-674.

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This contribution focuses in particular on the rules of interpretation to be applied when ascertaining the meaning of a unilateral act such as a national foreigninvestment law. It proceeds as follows. Parts I and II are brief: the former sets out the textual and arbitral practice supporting the use of a national foreign-investment law as a basis for ICSID jurisdiction; the latter explores how such a statute should be viewed as a unilateral act under international law. After establishing this foundation, Part III explores in some detail the international law applicable to the interpretation of a unilateral act such as a national foreign-investment law. I. National Foreign-Investment Laws as a Basis for Consent to ICSID Jurisdiction ICSID arbitration is based on the consent of the parties.2 Article 25(1) of the ICSID Convention requires not only ratification of the Convention by the contracting State party but also the written consent of both parties to arbitration under the Convention.3 As explained by Professor Christoph Schreuer, consent to ICSID arbitration may be given in three different manners: – A compromissory clause in an investment agreement between the host State and the investor submitting future disputes to the jurisdiction of the Centre (or through a compromis, if the dispute has already arisen).4 – National legislation by the contracting State (typically a foreign investment law or investment code). In order to amount to a consent agreement, the offer contained in national legislation must be accepted by the investor. Depending on the wording of the legislation, the investor may be able to achieve this merely through the institution of arbitral proceedings.5 – A treaty (bilateral or multilateral) between the host State and the investor’s State of nationality, containing an ICSID arbitration clause. In this case, the offer by 2

3

See Christoph Schreuer, The ICSID Convention: A Commentary ¶¶ 241-45 (2001); Georges Delaume, Consent to ICSID Arbitration, in The Changing World of International Law in the Twenty-First Century: A Tribute to the Late Kenneth R. Simmonds 155, 156 (Joseph J. Norton et al. eds., 1998). The preamble to the ICSID Convention makes clear that “no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration.” Convention on the Settlement of Investment Disputes Between States and Nationals of Other States pmbl., Mar. 18, 1964, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention]. The first sentence of Article 25(1) of the Convention provides: The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.

4 5

Schreuer, supra note 2, ¶¶ 249-56. Id. ¶¶ 257-84. With regard to the investor’s acceptance of the State’s offer in its domestic law, see id. ¶¶ 276-84. See also Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 240-42 (2008).

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

the State to settle disputes with the investor by arbitration has to be accepted by the investor, which, again depending on the type treaty, may be achieved by instituting arbitral proceedings.6 Although consent through a contract or treaty (bilateral or multilateral) is more common in practice and has given rise to a greater number of claims by investors before ICSID tribunals, for quite some time now it has not been disputed that consent also can take the form of an acceptance by a foreign investor of an offer made by a State party to the ICSID Convention in that State’s own national investment legislation.7 The possibility for an investor to commence arbitration based on a unilateral offer contained in national legislation is also confirmed by arbitral practice. One of the first discussions of ICSID jurisdiction based on a national law is found in the 1985 and 1988 decisions on jurisdiction in Southern Pacific Properties (Middle East) Ltd. (SPP) v. Arab Republic of Egypt.8 In this arbitration, SPP claimed that Egypt had consented to the Centre’s jurisdiction in its 1974 national statute, Law No. 43.9 Egypt argued that the text of Law No. 43 did not suffice to create ICSID jurisdiction and that a further 6 7

Schreuer, supra note 2, ¶¶ 285-319. Gabriela Álvarez Ávila, Las Características del Arbitraje del CIADI, in Anuario Mexicano de Derecho Internacional 205 (2002); see also Schreuer, supra note 2, ¶¶ 257-84; Delaume, supra note 2, at 161-64; Jan Paulsson, Arbitration without Privity, 10 ICSID Rev. 232, 234 (1999) (“The principle that national investment laws may create compulsory arbitration without privity is beyond cavil.”). Indeed, the Report of the Executive Directors accompanying the Convention clearly envisages this possibility: Nor does the Convention require that the consent of both parties be expressed in a single instrument. Thus, a host State might in its investment promotion legislation offer to submit disputes arising out of certain classes of investments to the jurisdiction of the Centre, and the investor might give his consent by accepting the offer in writing.

8

9

Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, ICSID/15/Rev.1, ¶ 24 (March 18, 1965). Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Decision on Jurisdiction (Apr. 27, 1985), 3 ICSID Rep. 112 (1995) [hereinafter Decision on Jurisdiction I], and Decision on Jurisdiction II (Apr. 14, 1988) [hereinafter Decision on Jurisdiction II]. With regard to other cases that have discussed the issue of consent based on a domestic law provision, see, for example, Tradex Hellas S.A. (Greece) v. Republic of Albania, ICSID Case No. ARB/94/2, Decision on Jurisdiction (Dec. 24, 1996), 14 ICSID Rev. 161 (1999); Zhinvali Development Limited v. Republic of Georgia, ICSID Case No. ARB/00/1, Award (Jan. 24, 2003), 10 ICSID Rep. 3 (2006); Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (July 24, 2008); Inceysa Vallisoletana, S.L. v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award (Aug. 2, 2006). Decision on Jurisdiction I, supra note 8, ¶ 48. Article 8 of Law No. 43 provided that: Investment disputes in respect of the implementation of the provisions of this Law shall be settled in a manner to be agreed upon with the investor, or within the framework of the agreements in force between the Arab Republic of Egypt and the investor’s home country, or within the framework of the Convention for the Settlement of Investment Disputes be-

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ad hoc manifestation of consent between the parties was needed in order to validly submit the dispute to the Centre’s jurisdiction. Following a careful and detailed analysis, the SPP tribunal sustained its jurisdiction, finding that Article 8 of Law No. 43 legally sufficed as a manifestation of written consent to the jurisdiction of the Centre pursuant to Article 25(1) of the ICSID Convention and that no separate ad hoc written consent was required for that purpose.10 The Tribunal explained: “To interpret the phrases ‘within the framework of the Convention’ and ‘where it applies’ to mean that the parties to an investment dispute must execute a separate agreement to establish consent to the Centre’s jurisdiction would … destroy the internal logic of Article 8 and render much of that provision superfluous.”11 The 1996 Decision on Jurisdiction in Tradex Hellas S.A. (Greece) v. Republic of Albania12 offers another example of an ICSID Tribunal upholding its jurisdiction based on an arbitration provision included in a national law. This proceeding was brought by the claimant on the basis of the unilateral offer to arbitrate under the ICSID Convention contained in the 1993 Foreign Investment Law of Albania. The Tradex Hellas tribunal’s decision on jurisdiction, which the SPP tribunal quoted with approval, clearly reaffirmed the mechanism whereby consent of the parties may be established through the acceptance by the investor of an offer to arbitrate contained in the national legislation of the host state. In this respect, the tribunal noted that: Starting with Article 25 of the ICSID Convention, … although consent by written agreement is the usual method of submission to ICSID jurisdiction, it can now be considered as established and not requiring further reasoning that such consent can also be effected unilaterally by a Contracting State in its national laws the consent becoming effective at the latest if and when the foreign investor files its claim with ICSID making use of the respective national law.13 tween the State and the nationals of other countries [sic] to which Egypt has adhered by virtue of Law No. 90 of 1971, where such Convention applies.

10

11 12 13

SPP asserted that its consent to jurisdiction was expressed in a letter from its managing director to Egypt’s Minister of Tourism and again by the act of filing its request for ICSID arbitration. Decision on Jurisdiction II, supra note 8, ¶ 116. Paulsson, supra note 7, at 235, reports that in Manufacturers Hanover Trust Company v. Arab Republic of Egypt and General Authority for Investment and Free Zones, ICSID Case No. ARB/89/1 (July 31, 1995), the “claimant investor also successfully relied on this form of legislative consent to ICSID.” A settlement was reached in this case after a decision on jurisdiction had been rendered. Id. at 235 n.6. Decision on Jurisdiction II, supra note 8, ¶ 94. ICSID Case No. ARB/94/2, Decision on Jurisdiction (Dec. 24, 1996), 14 ICSID Rev. 161 (1999). Id. at 186-87. Although independent of the point that a statute in theory can serve as a basis for ICSID jurisdiction, I note that the Tradex tribunal, comparing the clause before it with that of Article 8 of the Egyptian law in SPP, stated that the Albanian clause was “surely more clear” than that considered in SPP. Id. at 187.

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

Lastly, in Ceskoslovenska Obchodni Banka, A.S. (CSOB) v. The Slovak Republic, the tribunal also affirmed the ability of a national investment law to constitute binding consent to ICSID arbitration: ICSID practice also indicates that the exchange of written consents required for ICSID jurisdiction can be satisfied not only by the mutual acceptances of bilateral investment treaties, but also by other forms of acceptances. Many investment laws of developing countries provide for the State’s acceptance of ICSID jurisdiction (or for alternative dispute resolution methods) for disputes with the investor arising out of a particular investment. Under some laws the offer is deemed to be accepted as soon as the foreign investor files an investment application pursuant to such a law … .14

It is therefore quite clear that the national legislation of an ICSID contracting State (typically a foreign investment law or investment code) can serve as a form of consent to ICSID arbitration. In the next part of this contribution, I examine the practice and jurisprudence of how a tribunal is to view a national foreign investment statute under international law. II. National Foreign-Investment Laws as Unilateral Acts Under International Law A legislative act of any state, like all other acts of a state, can have a meaning within several legal systems simultaneously. In the Norwegian Fisheries case, for example, the International Court of Justice (ICJ), in examining a national act of maritime delimitation effected by Norway through a Decree, stated that: The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.15

In this instance, Norway, in the Court’s view, claimed rights vis-à-vis the international community and foreign nationals simultaneously under both Norwegian and international law. It is equally possible, however, for a state to undertake obligations vis-à-vis the international community and foreign nationals simultaneously under both national and international law. 14 15

ICSID Case No. ARB/97/4, Decision of the Tribunal on Objections to Jurisdiction, ¶ 44 (May 24, 1999), 14 ICSID Rev. 251 (1999). Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116, 132 (Dec. 18). Similarly, the Permanent Court of International Justice (PCIJ) said in the Polish Upper Silesia case: “From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures.” Certain German Interests in Polish Upper Silesia (Merits), 1920 P.C.I.J. (ser. A) No. 7, at 19 (Sept. 15).

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Unilateral actions may lead to unilateral obligations, which, although undertaken by a single State actor, may affect its relationships with and duties to other States. The ICJ in the Nuclear Tests case stated that: It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.16

As in the case of treaties, the ICJ linked the legal effects connected to unilateral declarations to the principle of good faith: One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. … Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.17

In 2006, the ILC adopted “Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations,” with commentaries thereto (ILC Guiding Principles).18 In its work on unilateral declarations, the ILC undertook its customary multiyear examination, with the topic of unilateral acts of States first being included on its agenda in 1996.19 The relevance of these Principles to the question of interpre16

17 18

19

Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253, ¶ 43 (Dec. 20). This paragraph is also quoted by the ICJ in Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, ¶ 59 (Nov. 26). See also Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, ¶¶ 39-40 (Dec. 22). Nuclear Tests, supra note 16, ¶ 46. ILC Report on the Work of its Fifty-Eighth Session (May 1-June 9 and July 3-Aug. 11, 2006), U.N. Doc. A/61/10 at 367. For a general discussion of the ILC’s effort, see Camille Goodman, “Acta Sunt Servanda?” A Regime for Regulating the Unilateral Acts of States at International Law, 25 Aust. Y.B. Int’l L. 43, 56 (2006). See Report of the Working Group, ¶¶ 191-94, U.N. GAOR, 49th Sess., U.N. Doc. No. A/52/10 (1997) (explaining that, at its 48th session in 1996, “the Commission proposed to the General Assembly that the law of unilateral acts of States should be included as a topic appropriate for the codification and progressive development of international law.”) (citations omitted). The General Assembly, in its resolution of January 30, 1997, among other items, invited the Commission to further examine the topic of “Unilateral acts of States” and to indicate its scope and content. G.A. Res. 51/160, U.N. Doc. A/RES/51/160, ¶ 13 (Jan. 30, 1997).

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

tation of a unilateral act is discussed further below. Their relevance at this point is to show that they proceed from the assumption that a state may, through a unilateral act, accept binding obligations under international law. The approach of evaluating a national foreign-investment law as a possibly binding unilateral act under international law has been followed in arbitral practice. The SPP tribunal noted with regard to the question of Egypt’s alleged consent to ICSID in its domestic legislation that “[t]he issue is whether certain unilaterally enacted legislation has created an international obligation under a multilateral treaty.”20 It is not surprising, but nonetheless to be noted, that the SPP tribunal viewed the national foreign-investment law as a possibly binding unilateral act under international law, even though that statute was directed at foreign investors rather than another state.21 The reason it is not surprising is because the structure of the international obligation potentially accepted approximates and mirrors quite closely the obligations undertaken in bilateral investment treaties. For Reisman and Arsanjani, if a host State seeking to attract foreign investment has deliberately acted so as to create expectations in potential foreign investors with respect to particular treatment or comportment, and the investor has reasonably relied upon those expectations, the host State should be bound accordingly.22 In conclusion, even though a national foreign-investment law has a legal meaning given to it by the specific national legal system involved, the question whether that statute as a unilateral act under international law contains, for example, a consent to ICSID arbitration, is a question to be determined in accordance with international law. It is to the question of the standard of interpretation to be applied in that analysis that Part III of this essay turns. III. Interpretation of a Unilateral Act Such as a National Foreign-Investment Law Under International Law What are the proper rules to be applied in interpreting the content of a unilateral act such as national foreign-investment law? At the outset, it should be emphasized that this is an evolving area of law. On the one hand, there are settled rules for the interpretation of treaties, and there is a tendency to apply these interpretive rules to unilateral acts by analogy where appropriate. The rules are set forth in the Vienna Convention on the Law of Treaties (Vienna Convention),23 which is widely accepted 20 21 22

23

Decision on Jurisdiction II, supra note 8, ¶ 61. See also Texaco Overseas Petroleum Co. v. Libyan Arab Republic, 53 I.L.R. 389, ¶  66 (1977); Saudi Arabia v. Arab Am. Oil Co. (ARAMCO), 27 I.L.R. 117, 168 (1963). See Reisman & Arsanjani, supra note 1, at 422. Indeed, the reasoning of the ICJ in the Nuclear Tests case leads Reisman and Arsanjani to deduce that, based on this and other international jurisprudence, “a unilateral act [that] has given rise to a binding obligation will probably be reinforced if the State making the declaration expects to receive clear benefits on the basis of the declaration.” Id. at 416. Vienna Convention on the Law of Treaties arts. 31-32, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].

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as reflecting customary international law. On the other (and more recent) hand, the ILC in its 2006 Guiding Principles approached “unilateral declarations” as a sui generis area and provided principles of interpretation specifically for unilateral declarations that differ in some respects from the rules of interpretation applicable to treaties. This Part considers the practical application of both the Vienna Convention’s interpretive rules and the ILC Principles to the interpretation of a national foreigninvestment law. Two points should be emphasized. First, as we will see, the two approaches do not, in the final analysis, differ quite so much. The ICJ has applied the Vienna Convention rules to unilateral acts by analogy, but a close reading of the relevant cases shows that it has done so only where appropriate. The ILC’s work calls for a more open and careful approach, but, in effect, ends up in a similar place to that of the ICJ. Second, a fundamental question to bear in mind is what characteristics of a unilateral act led both the ICJ and the ILC not to think that the rules of interpretation applicable to treaties needed substantial adjustment. The primary concern of both the ICJ and ILC, in all likelihood, boils down to a concern that the characterization too easily of the oral declaration of a head of state as binding might chill the conduct of foreign affairs. In this sense, it is important to stress that neither the ICJ nor the ILC appear to address deliberated written national acts, such as national foreign-investment laws, as a part of their consideration. Instead, the relevant primary sources and case law indicate that the concerns of both the ILC and ICJ centered on oral declarations of diplomats, some of which were reduced to notes, rather than formal acts such as investment laws, which would ordinarily be debated and enacted by a domestic legislature. A. The ICJ and the Applicability of the Vienna Convention on the Law of Treaties by Analogy Since the Vienna Convention came into force, the ICJ has dealt, on at least three occasions, with the law applicable to unilateral declarations, specifically addressing the law applicable to qualified acceptances to compulsory jurisdiction. The ICJ’s approach in these three instances has been to hold that, although the rules of the Vienna Convention do not apply per se, they may be applied by analogy where appropriate. In the Nicaragua case, the Court noted in its 1984 judgment on jurisdiction that, as to the issue of termination (rather than interpretation), a unilateral declaration should be analogized to a treaty: Moreover, since the United States purported to act on 6 April 1984 in such a way as to modify its 1946 Declaration with sufficiently immediate effect to bar an Application filed on 9 April 1984, it would be necessary, if reciprocity is to be relied on, for the Nicaraguan Declaration to be terminable with immediate effect. But the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of

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treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity.24

In its 1998 judgment in the Land and Maritime Boundary dispute between Cameroon and Nigeria, the ICJ, again in the context of a declaration of acceptance of compulsory jurisdiction of the Court, reiterated that the Vienna Convention may apply by analogy: The Court notes that the régime for depositing and transmitting declarations of acceptance of compulsory jurisdiction laid down in Article 36, paragraph 4, of the Statute of the Court is distinct from the régime envisaged for treaties by the Vienna Convention. Thus the provisions of that Convention may only be applied to declarations by analogy.25

The question of interpretation of unilateral declarations again arose squarely in the Court’s 1998 judgment on jurisdiction in the Fisheries Jurisdiction case.26 At issue was Canada’s declaration accepting the Court’s jurisdiction and the reservations ap24

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, 419-20, ¶ 63 (Nov. 26). Judge Schwebel, it should be noted, disagreed with the assumption that the Vienna Convention applied by analogy and instead thought a sui generis regime was appropriate in light of the fact that unilateral acts are not negotiated and therefore not subject to agreement. He states in his dissenting opinion: Nor is the Court required to take a position on the allied question of whether declarations under the Optional Clause are subject to the provisions of the law of treaties regulating the termination of treaties or, rather, to a sui generis régime. The Court appears nevertheless to incline towards the view that the law of treaties governs declarations, if only by analogy. My own view is that the argument for a sui generis régime is much stronger. That is because of the nature of declarations under the Optional Clause—unilateral as they are, not subject to negotiation, reservations to which are not subject to agreement. Their nature differs substantially from that of treaties. The Court’s treatment of such declarations is suggestive, notably in the Anglo-Iranian Oil Co. case (jurisdiction), Judgment, I.C.J. Reports 1952, pages 93, 105, where the Court held: the text of the Iranian Declaration is not a treaty text resulting from negotiations between two or more States. It is the result of unilateral drafting by the Government of Iran … . The Court thus held that a rule of the interpretation of treaties for which the United Kingdom argued did not govern the interpretation of the Iranian Declaration (ibid., pp. 102-107). The Court has more than once described declarations under the Optional Clause as “unilateral” (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, pp. 9, 23; Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, pp. 6, 29) … In view of the foregoing considerations, a considerable case can be made out for viewing declarations under the Optional Clause as not governed by the law of treaties, and as inherently terminable … .

25 26

Id. at 620-622, ¶¶ 99, 101 (Schwebel, J., dissenting). Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.), 1998 I.C.J. 275, ¶ 30 (June 11) (citation omitted). Fisheries Jurisdiction (Spain v. Can.), 1998 I.C.J. 432 (Dec. 4).

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pended to it. The ICJ, in addressing the issue, started by noting that “different views were proffered as to the rules of international law applicable to the interpretation of reservations to optional declarations made under Article 36, paragraph 2, of the Statute.”27 It then went on to say that the Vienna Convention’s rules on treaty interpretation applied by analogy, but only to the extent that they were compatible with the sui generis nature of unilateral declarations: A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. … The régime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (ibid., p. 293, para. 30). Spain has suggested in its pleadings that “[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those governing the interpretation of treaties”. The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction.28 The Court expanded on this statement in two ways. First, the Court referred with approval to the interpretive technique used in the Anglo-Iranian Oil case,29 a textual technique quite similar to that eventually adopted as Article 31(1) of the Vienna Convention. The ICJ wrote:In the event, the Court has in earlier cases elaborated the appropriate rules for the interpretation of declarations and reservations. Every declaration “must be interpreted as it stands, having regard to the words actually used” (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105). Every reservation must be given effect “as it stands” (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27). Therefore, declarations and reservations are to be read as a whole. Moreover, “the Court cannot base itself on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text.” (Anglo-Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 104.)30

Second, the Court goes on to suggest that it is precisely the unilateral character of these acts that leads to some difference from the interpretive technique that is appropriately employed for treaties. In particular, the search for the intention of the declaring state may be sought in the “context” of the document itself. The Court writes: At the same time, since a declaration under Article 36, paragraph 2, of the Statute, is a unilaterally drafted instrument, the Court has not hesitated to place a certain emphasis on the intention of the depositing State. Indeed, in the case concerning Anglo-Iranian Oil Co., the Court found that the limiting words chosen in Iran’s declaration were “a decisive

27 28 29 30

Id. at 452, ¶ 43. Id. at 453, ¶ 46 (emphasis added). Anglo-Iranian Oil Co. (U.K. v. Iran), 1952 I.C.J. 93 (July 22). Fisheries Jurisdiction, supra note 26, at 454, ¶ 47.

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

confirmation of the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court” (ibid., p. 107). The Court will thus interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court. The intention of a reserving State may be deduced not only from the text of the relevant clause, but also from the context in which the clause is to be read, and an examination of evidence regarding the circumstances of its preparation and the purposes intended to be served.31

The ICJ approach has also been adopted in arbitral practice. In particular, the SPP tribunal, in approaching the interpretation of Egypt’s Foreign Investment Law No. 43 explained that in deciding whether in the circumstances of the present case Law No. 43 constitutes consent to the Centre’s jurisdiction, the Tribunal will apply general principles of statutory interpretation taking into consideration, where appropriate, relevant rules of treaty interpretation and principles of international law applicable to unilateral declarations.32

B. The ILC and the Interpretive Guidance Provided by its 2006 Guiding Principles Since the time of the authorities cited in the previous section, the ILC has undertaken a general study of “unilateral declarations,” which resulted in the 2006 ILC Guiding Principles. The ILC Guiding Principles offer further guidance as to the interpretation of the unilateral declarations. This guidance has three dimensions in that the Principles provide, in my opinion, for (1) the application by analogy of Article 31(1) of the Vienna Convention, with the addition of (2) an examination of “all the factual circumstances in which they were made” and (3) a “restrictive” interpretation in the case of doubt. In this section, I examine these three aspects of interpretation. Before examining these three aspects of the ILC Guiding Principles, let me note that I approach the Principles with respect but not deference. In a recent article concerning the ILC Articles on State Responsibility, I wrote: In sum, I urge that arbitrators take care not to give the articles undue or unquestioned authority. … The ILC’s work on state responsibility will best serve the needs of the international community only if it is weighed, interpreted, and applied with much care. Indeed, I believe the ILC itself would say it hopes for such real-world testing of its work.33

31 32 33

Id. ¶¶ 44-49 (emphasis added). Decision on Jurisdiction II, supra note 8, ¶ 61. David D. Caron, The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority, 96 Am. J. Int’l L. 872-73 (2002). Partially, in response to this statement, James Crawford, the final Special Rapporteur for the Articles on State Responsibility, wrote that “the ILC’s work is a part of a process of customary law articulation, which—as Caron argues—requires care in its recipients but does not contravene

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I therefore suggest that these principles be approached, not as offering definitive guidance, but as one particularly helpful interpretative aid available to a tribunal in its interpretation of a national foreign-investment law. The ILC Guiding Principles are just that—principles to guide interpretation, and this is particularly so with respect to the few principles addressing unilateral acts. As briefly noted above and discussed at length below, the commentary accompanying these principles devotes considerable attention to the oral declarations of States and diplomats and, of these statements, evinces a further focus on those addressing subjects such as territorial disputes and foreign policy. In this sense, a tribunal examining a national foreign-investment law as a unilateral act should take these principles, in my opinion, for what they are (interpretative guidance), which must be further analogized to the potentially different circumstances at hand. 1. The First Aspect—Application by Analogy of Article 31(1) of the Vienna Convention The ILC Guiding Principles, and the Commentary accompanying them, invoke the language of Article 31(1) of the Vienna Convention and advocate a good faith interpretation of the “ordinary meaning” of the terms in their context and in the light of their object and purpose.34 Principle 7 of the 2006 ILC Guiding Principle reads in relevant part: A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. … In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated.35

The ILC noted in the commentary to Principle 7: With regard, in particular, to the method and means of the interpretation, attention is drawn to the observation by the International Court of Justice that ‘[t]he régime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (...). Spain has suggested in its pleadings that ‘[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those governing the interpretation of treaties’. The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis char-

34

35

any general principle.” James Crawford, The ILC Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect, 96 Am. J. Int’l L. 890 (2002). Article 31(1) of the Vienna Convention provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” ILC, Report of the Working Group, Conclusions of the International Law Commission Relating to Unilateral Acts of States, available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf (emphasis added).

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

acter of the unilateral acceptance of the Court’s jurisdiction’. Applying the Court’s dictum and by analogy with article 31, paragraph 1, of the 1969 Vienna Convention on the Law of Treaties, priority consideration must be given to the text of the unilateral declaration, which best reflects its author’s intentions. In addition, as acknowledged by the Court in its Judgment in the Frontier Dispute case, ‘to assess the intentions of the author of a unilateral act, account must be taken of all the circumstances in which the act occurred’, which constitutes an application by analogy of article 31, paragraph 2, of the 1969 Vienna Convention.36

In emphasizing that “weight shall be given first and foremost to the text of the declaration” and that “priority consideration must be given to the text,” the Principles call for interpretation “by analogy with article 31, paragraph 1, of the 1969 Vienna Convention on the Law of Treaties.”37 This emphasis is likewise apparent in the record of the ILC deliberations. ILC Special Rapporteur Victor Rodriguez Cedeño (Venezuela) prepared a total of nine reports addressing different issues relating to unilateral acts. His Fourth Report was substantially devoted to establishing rules relating to the interpretation of unilateral acts. The Special Rapporteur discussed extensively whether the rules of interpretation of the Vienna Convention should be applicable to unilateral acts or taken as a valid reference in elaborating rules in this area, and he observed: The rules of interpretation on unilateral acts must be based on the consolidated rules laid down in the 1969 and 1986 Vienna Conventions, adapted, of course, to the specific characteristics of unilateral acts. In the first place, there is no doubt that the general rule of interpretation set out in the above-mentioned article 31 of the Vienna Conventions, whereby treaties shall be interpreted in good faith, is entirely applicable to unilateral acts.38

Stressing the importance of the standard of good faith, the Special Rapporteur—using almost exactly the language of the Vienna Convention—appeared to argue that, in a search for intention, “logic dictates” the requirements of Article 31(1) of the Vienna Convention. There is no reason why this basic principle applicable to treaty relations should not be considered in the relations established by the formulation of a unilateral act. An act which is unilaterally formulated by a State must be interpreted in good faith, that is, in accordance with what the author State really intended to say. The task of the interpreter is, precisely, to attempt to identify the intention of the parties or, in this context, of the State which unilaterally formulates the act. Good faith and the meaning of the terms as a starting point are the point of departure of the interpretation process. And, if this is recognized, logic dictates that the ordinary meaning to be given to the terms of the declaration, either orally or in writ36 37 38

Id. at 11 (emphasis added). Id. Victor Rodríguez Cedeño, Special Rapporteur, Fourth Report on Unilateral Acts of States, U.N. Doc. No. A/CN.4/519, ¶ 129 (May 30, 2001) [hereinafter Fourth Report on Unilateral Acts].

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ing, in its context and in the light of its object and purpose, should be mentioned in the first place, which would not per se dispel doubts as to desired and expressed will.39

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Although importing to the analysis of unilateral acts the first half of the Article 31(1), the Special Rapporteur thereafter appeared skeptical as to the applicability of Article 31(1)’s “object and purpose” language to unilateral acts: The situation changes when the object and purpose used in the scope of the Vienna Convention are transposed to unilateral acts. In the Special Rapporteur’s view, there is no place for including this in the context of the interpretation of unilateral acts, since it deals with terms that are specifically applicable to treaty relations. In this context, it is important to highlight the intention of the State which formulates the act; hence, the interpretation should be considered ‘in the light of the intention’ of that State, as reflected in draft article (a) set out below.40

This skeptical view was not shared by other ILC members, however. Mr. Gaja (Italy), for instance, noted: If one wished to state, with regard to unilateral acts, a rule analogous to the basic rule established for treaties by article 31, paragraph 1, of the 1969 Vienna Convention, one would have to say that an act should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the act in that context and in the light of its object and purpose. That rule could be expressed irrespective of the role to be played by intention. In paragraphs 131 and 137 of the report, the Special Rapporteur revealed mixed feelings about the object and purpose criterion, first approving, then disapproving of it, and ultimately not including it in article (a). That criterion was admittedly an elusive one that had a slightly subjective flavour when applied to treaties, and even more so when applied to unilateral acts. If, for unilateral acts, some role was to be attributed to intention that went beyond the role of intention for treaties, a reference to object and purpose should not be omitted. He himself could not see any decisive reason for such an omission. As Mr. Pellet had recalled, a State’s intention when engaging in a unilateral act was relevant in two situations: in determining the existence of a unilateral act, a question that had been central to the Nuclear Tests cases, and in determining how the act was to be interpreted, although ICJ had not always made a clear distinction between the two questions.41

Mr. Gaja’s remarks were echoed by both Mr. Herdocia Sacasa (Nicaragua)42 and Mr. Lukashuk (Russian Federation).43 I too would join in these voices questioning the

39 40 41 42 43

Id. ¶ 131 (footnotes omitted) (emphasis added). Id. ¶ 137. Summary Record of the 2695th Meeting, Yearbook of the International Law Commission, 2001, vol. I, ¶¶ 12-13 [hereinafter Record of the 2695th ILC Meeting]. Id. ¶ 38. Id. ¶ 4.

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

Special Rapporteur’s inconsistent application of Article 31. The question to always bear in mind, in my view, is what are the characteristics of a unilateral act that lead one to conclude that a departure from the rules of the Vienna Convention is needed. The Vienna Convention is not necessarily the end point, but it should be the starting point. Therefore, carefully weighing and applying the principles as advocated above, it would appear that, in accordance with Principle 7, the interpretation of a unilateral act should first draw upon Article 31 of the Vienna Convention that provides the “general rule of interpretation” for treaties.44 “Interpretation under Article 31 of the Vienna Convention is a process of progressive encirclement where the interpreter starts under the general rule with (1) the ordinary meaning of the terms of the treaty, (2) in the context of the entire document as well as closely related documents and (3) in light of the treaty’s object and purpose, and by cycling through this three-step inquiry, iteratively closes in upon the proper interpretation.”45 In approaching this task, it is critical to observe two things about the general rule of interpretation found in the Vienna Convention, as drawn from the holding in Aguas del Tunari: First, the Vienna Convention does not privilege any one of these three aspects of the interpretation method. … Second, the Vienna Convention represents a move away from the canons of interpretation previously common in treaty interpretation and which erroneously persist in various international decisions today. For example, the Vienna Convention does not mention the canon that treaties are to be construed narrowly, a canon that presumes States can not have intended to restrict their range of action. Rather than cataloging such canons (which at best may be said to reflect a general pattern), the Vienna Convention directs the interpreter to focus upon the specific case which may, or may not, be representative of such general pattern. To say a canon reflects a widespread practice does not mean it reflects a universal one.46 44 45

46

See Vienna Convention, supra note 23, art. 31. Aguas del Tunari, S.A. v. Republic of Bolivia, ICSID Case No. ARB/02/3, Decision on Respondent’s Objections to Jurisdiction ¶ 91 (Oct. 21, 2005). It likewise should be observed that the SPP Tribunal took as its “starting point” for the interpretation of treaties and unilateral declarations “the ordinary or grammatical meaning of the terms used.” Decision on Jurisdiction II, supra note 8, ¶ 74. Id. “The Vienna Convention’s directive to look to the ordinary meaning of a word in its context and in light of the object and purpose of the treaty is intended to (1) to find the intent of the parties in the specific instrument, (2) to respect the possibility that the parties have used the instrument to address issues of mutual concern in innovative ways, and (3) to not forcibly conform the specific aims of a treaty to general assumptions about the intent of states, assumptions which necessarily are based on assessments of past practice.” Id. (citing Georg Schwarzenberger, Myths and Realities of Treaty Interpretation: Articles 27-29 of the Vienna Draft Convention on the Law of Treaties, 22 Current Legal Problems 205, 219 (1969)); see also Aharon Barak, Judicial Discretion 341-42 (1987) (“From the standpoint of language, one meaning does not have preference over another. Any meaning which is possible in a semantic sense is also permissible semantically. It would be a mistake to base a doctrine of legal interpretation on dictates, as it were, of

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2. The Second Aspect—An Examination of “All the Factual Circumstances in Which They Were Made, and of the Reactions to Which They Gave Rise” The first departure from the approach of the Vienna Convention by the ILC is to be found in Principle 3 of the ILC 2006 Guiding Principles: “To determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise.” Principle 3’s call for taking account of “all the factual circumstances in which they were made and of the reactions to which they gave rise” is a clear departure from the approach taken by the Vienna Convention. Article 32 of the Vienna Convention allows for recourse to the “preparatory work of the treaty and the circumstances of its conclusion,” but only to confirm the meaning which results from the textual reading called for in Article 31(1) or to determine the meaning if the result of Article 31(1) is ambiguous, manifestly absurd, or unreasonable. Indeed, the ILC Commentary on Article 32 of the Vienna Convention emphasizes the centrality of Article 31: “that the text of the treaty must be presumed to be the authentic expression of the intentions of the parties, and that the elucidation of the meaning of the text rather than an investigation ab initio of the supposed intentions of the parties constitutes the object of interpretation.”47 The 2006 ILC Guiding Principles, in contrast, make such supplemental means of interpretation a core part of the interpretative method. At various occasions, the Special Rapporteur highlighted the role to be attributed to the circumstances as an important factor in the interpretation of a unilateral act. For example, in its Fourth Report, he noted: With regard to the circumstances, the situation is different, as is clear from a review of the Court’s decisions in two particular cases that illustrate the importance of the circumstances to interpreting the intention of the author, where an interpretation is not possible on the basis of the meaning itself of the words used in the respective declarations. In the Nuclear Tests cases, the Court stated in this regard that ‘it is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced’. The Court reached a similar conclusion after examining the declaration made by the Head of State of Mali, in the Territorial Dispute case, when it stated

47

linguistics.”). Lauterpacht, amidst the situation prevailing before the Vienna Convention, observed: “The view which is gaining increasing acceptance seems to be that some of the current rules of construction of treaties … instead of aiding what has been regarded as the principal aim of interpretation, namely, the discovery of the intention of the parties, they end up by impeding that purpose.” Hersch Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 Brit. Y.B. Int’l L. 48, 52 (1949). Report of the International Law Commission on the Work of Its 18th Session, Commentary to Article 28, 1966 I.L.C. Y.B. 223 ¶ 18 (May 4-July 19, 1966). In later iterations of the Vienna Convention on the Law of Treaties, Article 28 became what is now Article 32.

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

that ‘in order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred … .48

From this comment reference to these two particular cases, we can see the justification for the departure from the subsidiary place of Article 32 to reflect the oral context of the statements and therefore the greater importance of using not only the transcribed words, but also the surrounding circumstances, to ascertain the intent of the speaker. 3. The Third Aspect—A Restrictive Interpretation in Case of Doubt The second departure from the approach of the Vienna Convention to interpretation is to be found in Principle 7 of the ILC 2006 Guiding Principles, which reads: A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated.

The ILC noted in the commentary to Principle 7: In case of doubt concerning the legal scope of the unilateral declaration, it must be interpreted in a restrictive manner, as clearly stated by the Court in its Judgments in the Nuclear Tests cases when it held that, ‘when States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for’. The interpreter must therefore proceed with great caution in determining the legal effects of unilateral declarations, in particular when the unilateral declaration has no specific addressee.

In his Fourth Report, the Special Rapporteur observed that a restrictive interpretation appeared necessary with regard to unilateral acts. The Special Rapporteur also cited to the Judgment of the ICJ in Nuclear Tests, where the Court wrote: “When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.”49 In this respect, the Special Rapporteur added: “In accordance with the case law and the doctrine, there is no doubt whatever that the restrictive criterion predominates in this context.”50 While the other members of the ILC were, as noted above, critical towards other parts of the Special Rapporteur’s work, there appeared to be no disagreement on the Special Rapporteur’s position that interpretation of unilateral acts should be restrictive in case of doubt. For example, Mr. Pellet (France) criticized the Special Rap48 49 50

Fourth Report on Unilateral Acts, supra note 38, ¶¶ 149, 151 (footnotes omitted) (emphasis added). Id. ¶ 127 (quoting Nuclear Tests, supra note 16, ¶ 44). Id.

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porteur’s initial draft article on interpretation, which did not expressly include the restrictive canon of interpretation. Mr. Pellet noted that “[t]here should also be a paragraph 1 bis that should spell out the principle of restrictive interpretation …  .”51 It is clear in the ILC deliberations that the principle of restrictive interpretation is drawn from the Nuclear Tests case, which addressed an oral declaration of the French government with respect to limitations on its military strategy and nuclear weapons testing practices.52 Beyond its origin in the Nuclear Tests case, the process by which the canon of restrictive interpretation “in the case of doubt” was inserted in the final Guiding Principles is not entirely clear from the publically available record. Because of the potential importance of this restrictive approach, I trace its emergence in the work of the ILC in some detail. In 1999, in the context of discussions on the differences between treaties and unilateral acts, the Special Rapporteur noted in passing: “It followed that a different approach was required in elaborating rules to govern the operation of unilateral legal acts. In particular, they should be restrictive, particularly as regards the expression of consent, the interpretation and the effects of such acts.”53 In his Fourth Report (2001), which is for the most part devoted to the issue of interpretation of unilateral acts, the Special Rapporteur cited to the statement by the ICJ in Nuclear Tests, for support of his contention that a restrictive interpretation is necessary with regard to unilateral acts: “When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.”54 The importance of a restrictive interpretation was stressed by the Special Rapporteur with reference to a particular type of unilateral acts, i.e., waivers: “In the case of waivers, in particular, it should be noted that the rule of non-presumption would then be a rule of restrictive interpretation: in cases where there is a doubt as to the will to waive, it should be assumed that the subject of law did not wish to do 51

52 53 54

Record of the 2695th ILC Meeting, supra note 41, ¶ 5. Mr. Herdocia Sacasa (Nicaragua) agreed with Mr. Pellet and noted: “Another important rule of interpretation, which arose out of the Nuclear Tests cases, was that when States made declarations that limited their future freedom of action, a restrictive interpretation was required. Mr. Pellet had made much the same point. In the ‘Lotus’ case, the PCIJ had stated that ‘restrictions upon the independence of States cannot be presumed’ [p. 18]; and in 1995, after the resumption of underground nuclear tests on Mururoa, the Court had repeated its decision, in the Nuclear Tests (New Zealand v. France) case, … concluding that New Zealand had no basis for invoking a violation of the commitment made by France, since the new tests had not taken place above ground. Thus, although a State was bound by its unilateral declaration, there could be no presumption of restrictions on its freedom of action. It was important to establish a text reflecting that approach.” Id. ¶ 35. Very similar in this regard is the position taken by Argentina, which, among other States, responded to the questionnaires prepared by the ILC. See The Secretary General, Report of the Secretary General, Replies From Governments to the Questionnaire, at 17-18, U.N. Doc. A/CN.4/511 (2002). Nuclear Tests, supra note 16, ¶ 44. Report of the International Law Commission on the Work of its Fifty-first Session (May 3-July 23, 1999), U.N. Doc. A/54/10, ¶ 497. Fourth Report on Unilateral Acts, supra note 38, ¶ 127 (citing Nuclear Tests, supra note 16, ¶ 44).

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

so.”55 Despite the Special Rapporteur’s words on the need for a restrictive principle of interpretation, the draft article56 on interpretation proposed by him at the end of his Fourth Report did not include such concept. Finally, in its 2002 Report, the ILC turned to the issue of interpretation: Another matter addressed in the report was the interpretation of unilateral acts. The Special Rapporteur was of the view that because expression of will was involved, rules on interpretation could be applied to all unilateral acts, irrespective of their content. Accordingly, he had tried to establish a general rule and one on supplementary means of interpretation, as in the Vienna regime but taking into account the specific features of unilateral acts. Although the draft article on interpretation did not expressly refer to the restrictive character of interpretation, such a reference could be included or the concept could be reflected in the commentary.57

Further, the ILC noted that: Some members had drawn attention to the need to refer explicitly in the text to the restrictive nature of interpretation, doing so might dispel fears that any act at all could be

55

56

57

Id. ¶ 128 (citation omitted). In his Seventh Report, the Special Rapporteur noted in this regard: “Doctrine has also supported the idea that waivers must be explicit, invoking the International Court of Justice decision of 27 August 1952 in the United States Nationals in Morocco case. A restrictive interpretation is called for: silence or acquiescence is not considered sufficient for a waiver to produce effects. In any event, a tacit waiver is deemed acceptable only where it arises from acts which are, or at least appear to be, of an unequivocal nature.” Seventh Report on Unilateral Acts of States, U.N. Doc. A/CN.4/542, ¶ 84 (internal citations omitted). With regard to the form which the ILC would ultimately give to the result of its work, the Special Rapporteur was at the outset instructed to work on “draft articles with commentaries”: “As indicated in paragraph 7 of its report, the Working Group had agreed that, according to the Commission’s usual practice, the Special Rapporteur and the Commission should prepare draft articles with commentaries, without prejudice to the final form it might decide to give to the results of the work on the codification and progressive development of the topic”. See Summary Records of the 2543rd Meeting, U.N. Doc. No. A/ CN.4/SR.2543, in 1 Yearbook of the International Law Commission, ¶ 2 (1998). In 2003, the records of the ILC show the difficulty of pursuing the “draft articles” path: “It was difficult to tell what final form the Commission’s work might take. The Special Rapporteur indicated that, if it proved impossible to draft general or specific rules on unilateral acts, consideration might be given to the possibility of preparing guidelines based on general principles that would enable States to act and that would provide practice on the basis of which work of codification and progressive development could be carried out. Whatever the final product, the Special Rapporteur believed that rules applicable to unilateral acts in general could be established.” ILC Report on the Work of its Fifty-fifth Session (May 5-June 6 and July 7-Aug. 8, 2003), U.N. Doc. A 758/10, ¶ 251. Report of the International Law Commission on the Work of its Fifty-fourth Session (Apr. 29-June 7 and July 22-Aug. 16, 2002), ¶¶ 322-323.

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binding on the State or that the State might be bound by any act formulated by one of its representatives.58

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Therefore, it appears that the fear that any declaration by a diplomat (even the least formal of oral declarations) could bind a State was one of the principal reasons for stressing the need of a restrictive interpretation. This is evident also from Mr. Simma’s (Germany) words: The Special Rapporteur had drawn attention, albeit in varying degrees, to the features of the interpretation of unilateral acts. First, they must be strictly interpreted, with no presumption of any limitations on freedom, an approach that was confirmed by the jurisprudence. If that maxim were not accepted, the unfortunate consequence would be that diplomats would need to be muzzled.59

This is reiterated by the Special Rapporteur who, in his Fifth Report (2002), noted that: Finally, although this is not reflected in the draft article on interpretation, it can be said that the restrictive criterion must predominate in the exercise of the interpretation of such acts, as upheld by legal doctrine, affirmed by Governments and indicated by case law. In this latter context, we note that—although it was in reference to promises only—the International Court of Justice in the Nuclear Tests case concluded: ‘When states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.’60

4. The Third Aspect of a Restrictive Interpretation in Case of Doubt and the Situation of Deliberated National Legislation, and in particular National Foreign Investment Laws In the sense that the ILC Guiding Principles are a suggested interpretative guide, one should delve into the bases upon which these guidelines were drafted in order to ascertain whether investment laws—and indeed domestic legislation generally or other significant categories of deliberated written statements—were a part of the contemplations of the drafters. In this regard, I note three important considerations. First, the ILC noted the difference between oral and written statements, but did not differentiate as to the application of its guidelines to the two and, significantly, appears to have drafted the Guiding Principles with an eye focused on the less formal and non-deliberative oral statements, even if possibly reduced to a note. Second, even in its discussion of written unilateral acts, the ILC did not address domestic legislation addressing investment issues as opposed to, for example, territorial disputes. Third, the restrictive interpretation advocated with respect to unilateral acts appears 58 59 60

Id. ¶ 427. Record of the 2695th ILC Meeting, supra note 41, ¶ 44. Fifth Report on Unilateral Acts of States, Addendum, U.N. Doc. A/CN.4/525/Add.1, (Apr. 20-June 4 and July 22-Aug. 15, 2002), ¶ 134 (quoting Nuclear Tests, supra note 16, ¶ 44).

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to be born of these two prior considerations: it is designed to protect States from significant incursions into their rights as sovereigns from unscripted oral statements of diplomats, and even in those situations, it is only meant to be applied when the implications of such statements are in doubt. First, the history and commentary accompanying the ILC Guiding Principles reveal that, although the difference between written and oral statements was acknowledged by the drafters, no differentiation in the guidelines for interpreting them was included. Indeed, in its final 2006 Guiding Principles, the ILC acknowledged the difference in the form of unilateral declarations and stated in Principle 5: “Unilateral declarations may be formulated orally or in writing.” However, this differentiation between forms did not lead the ILC to establish different rules. On the contrary, the guidelines issued by the ILC represent a set of rules that are intended to be common to both oral and written declarations. The goal of reaching a common set of rules was a constant concern in the Special Rapporteur’s work. As the Special Rapporteur noted in the Addendum to his Fifth Report: “In the fourth report the Special Rapporteur dealt with the interpretation of unilateral acts, which … may be subject to common rules, that is, rules which can be applied to all unilateral acts, irrespective of their classification, content and legal effects.”61 Second, in addressing unilateral acts—both oral and written—neither the Special Rapporteur nor the ILC appeared to contemplate foreign investment laws as an example of unilateral acts. Domestic statutes are only sporadically mentioned in the reports, and they never concern foreign investment. In his overall work on the topic, the Special Rapporteur, and subsequently the ILC, remained primarily concerned with diplomatic acts performed by States in the areas of recognition of States, maritime and terrestrial boundaries, and other questions concerning sovereignty. The Eighth Report by the Special Rapporteur, which considers and analyzes in detail 11 types of unilateral acts, is emblematic in this regard.62 61

62

Id. ¶ 120. In its 2001 Report, the ILC had noted that “Concerning the rules for the interpretation of unilateral acts, the Special Rapporteur reiterated his view that they were applicable to all kinds of unilateral acts and could therefore be included in the general part of the set of draft articles.” Report of the International Law Commission on the Work of its Fifty-third Session (Apr. 23-June 1 and July 2-Aug. 10, 2001), U.N. Doc. A/56/10, ¶ 252. The following examples of unilateral acts were reviewed in detail by the Special Rapporteur in his Eighth Report on Unilateral Acts of States, U.N. Doc. A/CN.4/557: (1) Note dated 22 November 1952 from the Minister for Foreign Affairs of Colombia (concerning Venezuela’s sovereignty over the Los Monjes archipelago); (2) Declaration of the Minister for Foreign Affairs of Cuba of 4 April 2002 (concerning the supply of vaccines to the Eastern Republic of Uruguay); (3) Statement by the King of Jordan on 31 July 1988 (waiving claims to the West Bank territories); (4) The Egyptian declaration of 24 April 1957 (concerning navigation in the Suez Canal); (5) Statements made by various representatives of the Government of France in relation to the Nuclear Tests case considered by the ICJ (concerning the suspension of nuclear tests in the South Pacific); (6) Protests by the Russian Federation against Turkmenistan and Azerbaijan (concerning boundaries and the status of waters of the Caspian Sea); (7) Statements made by nuclear-weapon States (guaranteeing the non-use of such weapons against non-nuclear-weapon States);

669

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Examples of written declarations were taken from a variety of sources, though not from foreign investment laws. The Special Rapporteur noted in his First Report: Among the many written declarations which occur in international practice are the following: declarations whereby a State protests against, renounces or recognizes a right or a situation of fact or promises to conduct itself in a certain way in the future; declarations whereby a State undertakes a commitment to one or more other States or to the international community as a whole; written declarations addressed by States to the SecretaryGeneral of the United Nations accepting the jurisdiction of the International Court of Justice on the basis of Article 36, paragraph 2, of its Statute; unilateral declarations deposited by Member States pursuant to resolutions of the United Nations General Assembly or of other international bodies; declarations made by States in other contexts; and written declarations annexed to international instruments … .63

Third, it is from this perspective of a need to address unilateral acts committed through the statements and notes of diplomats on such weighty matters as territorial boundaries that the ILC’s tendency towards restrictive interpretation in case of doubt appears to be founded. The sentence concerning the principle of restrictive interpretation contained in Principle 7 of the ILC Guiding Principles follows the statement that “A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms” (emphasis added). It is worth noting that in one of his last Reports (the Eighth), the Special Rapporteur instituted an important link between the “clarity” of the unilateral act and the form in which it is formulated. In other words, the form of a declaration (whether oral or written) may have effects on interpretation. The Special Rapporteur noted that: [T]he formality of the act has a role to play in determining the intent of its author. An oral statement made in an informal context may be less clear, in that regard, than an oral statement made before an international body or than a diplomatic note, which is of course drafted in a more formal manner and is therefore clearer, since the addressee can have direct access to its content. The form can have an impact insofar as a statement may be considered to produce legal effects.64

63 64

(8) Ihlen Declaration of 22 July 1919 (concerning sovereignty over Greenland, which was considered by the PCIJ in the Eastern Greenland case); (9) the Truman Proclamation of 28 September 1945 (dealing with the management and exploitation of the resources of the seabed beneath the territorial sea by the coastal State); (10) Statements concerning the United Nations and its staff members (concerning tax exemptions and privileges); (11) Conduct of Thailand and Cambodia with reference to the Temple of Preah Vihear case considered by the ICJ (concerning boundaries). First Report on Unilateral Acts of States, U.N. Doc. A/CN.4/486, ¶ 78 (internal footnotes omitted). Eighth Report on Unilateral Acts of States, U.N. Doc. A/CN.4/557, ¶ 170.

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

In light of this history and the goals of the ILC Guiding Principles, it appears that, in applying these Guiding Principles to a unilateral act such as a national foreign investment law, a tribunal should take into account that such legislation was not the evident focus of the ILC. Such a unilateral act is not an unscripted statement by a diplomat, nor does it limit sovereign rights and powers with respect to such subjects as territorial boundaries or military practices. Its analysis therefore seems not to require a restrictive interpretation. Therefore, although the ILC Guiding Principles with respect to unilateral acts remain a helpful guide in their analogy to Article 31(1) of the Vienna Convention and their focus on the factual circumstances in which they were made, and of the reactions to which they gave rise, I do not view the adoption by the Guiding Principles of a restrictive interpretation in case of doubt to be as readily applicable. In addition to the guidance provided by the ILC and the Vienna Convention as to unilateral acts generally, arbitral tribunals also have wrestled with the standard of interpretation to be applied when assessing a State’s alleged unilateral consent to jurisdiction. In this regard, while respondent governments have often, in their pleadings before ICSID Tribunals, tried to argue in favor of a restrictive interpretation of States’ undertakings to arbitrate, Tribunals have usually rejected this approach,65 supporting instead an interpretative approach that is neither restrictive nor broad.66 Among the cases that examined how the interpretation of a consent clause should be approached,67 the SPP v. Egypt case is again particularly relevant here, as its analysis specifically concerned interpretation of consent contained in national legislation. In this regard, the tribunal noted that “jurisdictional instruments are to be interpreted neither restrictively nor expansively, but rather objectively and in good faith,

65 66

67

See Dolzer & Schreuer, supra note 4, at 251. SOABI v. Senegal, ICSID Case No. ARB/82/1, 2 ICSID Rep. 190, Award, ¶¶ 4.08-4.10 (Feb. 25, 1988); see also Dolzer & Schreuer, supra note 4, at 251 (citing Amco v. Indonesia, 1 ICSID Rep. 389, Award on Jurisdiction, ¶¶ 12-24, (Sept. 25 1983)); SOABI v. Senegal, Award, ¶¶ 4.08-4.10; Cable TV v. St.. Kitts and Nevis, 5 ICSID Rep. 108, Award, ¶ 6.27 (Jan. 13, 1997); CSOB v. Slovakia, Decision on Jurisdiction, ¶ 34; Ethyl Corp. v. Canada, 7 ICSID Rep. 12, Decision on Jurisdiction, ¶ 55, (June 24, 1998); Loewen v. United States, ICSID Case No. ARB(AF)/98/3, 7 ICSID Rep. 425, Decision on Hearing of Respondent’s Objection to Competence and Jurisdiction, ¶ 51 (Jan. 9, 2001); Methanex v. United States, Preliminary Award on Jurisdiction, ¶¶ 103-105 (Aug. 7, 2002); Mondev Int’l. Ltd. v. United States, 6 ICSID Rep. 192, Award, ¶¶ 42, 43 (Oct. 11, 2002); Aguas del Tunari, S.A. v. Bolivia, Decision on Jurisdiction, ¶ 91 (Oct. 21, 2005); El Paso Energy Int’l. Co. v. Argentina, Decision on Jurisdiction, ¶¶ 68-70 (Apr. 27, 2006); Suez, Sociedad General de Aguas de Barcelona S.A. and InterAguas Servicios Integrales del Agua S.A. v. Argentina, Decision on Jurisdiction, ¶¶ 59, 64 (May 16, 2006); PanAmerican v. Argentina, Decision on Preliminary Objections, ¶¶ 97-99 (July 27, 2006)). See, e.g., Amco v. Indonesia, supra note 66, ¶ 12-26; SOABI v. Senegal, supra note 66, ¶¶ 4.08-4.10; Cable TV v. St. Kitts, supra note 66, ¶ 6.27; CSOB v. Slovakia, supra note 66, ¶ 34; Loewen v. United States, supra note 66, ¶ 51; Mondev v. United States, supra note 66, ¶¶ 42-43.

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672

and jurisdiction will be found to exist if—but only if—the force of the arguments militating in favor of it is preponderant.”68 The Tribunal in Amco Asia et al. v. Indonesia joined in this approach, noting that: In the first place, like any other conventions, a convention to arbitrate is not to be construed restrictively, nor, as a matter of fact, broadly or liberally. It is to be construed in a way which leads to find out and to respect the common will of the parties: such a method of interpretation is but the application of the fundamental principle pacta sunt servanda, a principle common, indeed, to all systems of internal law and to international law. Moreover—and this is again a general principle of law—any convention, including conventions to arbitrate, should be construed in good faith, that is to say by taking into account the consequences of their commitments the parties may be considered as having reasonably and legitimately envisaged.69

More recently, the Tribunal in Mondev International Ltd. v. United States noted: In the Tribunal’s view, there is no principle either of extensive or restrictive interpretation of jurisdictional provisions in treaties. In the end the question is what the relevant provisions mean, interpreted in accordance with the applicable rules of interpretation of treaties. These are set out in Articles 31-33 of the Vienna Convention on the Law of Treaties, which for this purpose can be taken to reflect the position under customary international law.70

Finally, similarly to AMCO, the Arbitral Tribunal in SOABI v. Senegal established an explicit link between a good faith interpretation of an expression of consent to ICSID arbitration and the need to take into account investors’ legitimate expectations: In the Tribunal’s opinion, an arbitration agreement must be given, just as with any other agreement, an interpretation consistent with the principle of good faith. In other words, the interpretation must take into account the consequences which the parties must reasonably and legitimately be considered to have envisaged as flowing from their undertakings. It is this principle of interpretation, rather than one of a priori strict, or, for that matter, broad and liberal construction, that the Tribunal has chosen to apply.71

68 69

70 71

Decision on Jurisdiction II, supra note 8, ¶ 63. Amco v. Indonesia, supra note 66, ¶ 14. This passage has been cited frequently with approval. See, e.g., Cable TV v. St. Kitts, supra note 66, ¶ 6.27; CSOB v. Slovakia, supra note 66, ¶ 34; Loewen v. United States, supra note 66, ¶ 51. Mondev v. United States, supra note 66, ¶ 43. SOABI v. Senegal, supra note 66, ¶ 4.10; see also Amco v. Indonesia, supra note 66, ¶ 14 (“Moreover—and this is again a general principle of law—any convention, including conventions to arbitrate, should be construed in good faith, that is to say by taking into account the consequences of their commitments the parties may be considered as having reasonably and legitimately envisaged.”); Cable TV v. St. Kitts, supra note 66, ¶ 6.27; CSOB v. Slovakia, supra note 66, ¶ 34. It is also noteworthy that the ICJ’s interpretation of

34 David D. Caron, The Interpretation of National Foreign Investment Laws as Unilateral Acts Under International Law

Indeed, arbitral practice, if anything, appears to incline toward a liberal interpretation of a foreign investment law that is unclear as to the scope of remedies provided. A national foreign-investment law is intended to induce investment by foreign nationals by making representations as to the substantive treatment foreign investors will enjoy and by providing means for the enforcement of those representations. An unusual aspect of this type of unilateral act is that it has a continuing character. It is not an act that is made as to a particular investment, but is an act that continues from moment to moment indefinitely making representations both as to treatment and remedies regarding foreign investment. For both tribunals and commentators, the burden of uncertainty in these continuing representations and the control of the State over clarification of such uncertainties argues in favor of a broad rather than restrictive interpretation. For example, the arbitral tribunal in SOABI v. Senegal, as quoted above, established an explicit link between a good faith interpretation of an expression of consent to ICSID arbitration and the need to take into account investors’ legitimate expectations. Thus, in this view, if a national foreign investment law is not a crystal-clear provision and incorporates certain grey areas of ambiguity, it is for the state making the unilateral act, which has unilaterally chosen, or chosen to maintain, an equivocal language when it enacted the legislation, to bear the risk of such ambiguity. To quote the words used by the Tradex Tribunal, commenting on the issue of consent given by Albania in its investment law: It would, therefore, seem appropriate to at least take into account, though not as a decisive factor by itself but rather as a confirming factor, that in case of doubt the 1993 Law should rather be interpreted in favour of investor protection and in favour of ICSID jurisdiction in particular.72

In conclusion, in assessing whether the text of a national foreign investment law constitutes a consent to ICSID arbitration: – The text should be approached as a unilateral assumption of an obligation under international law; – The interpretation of the text should be undertaken in accordance with the ordinary rules of treaty interpretation contained in Article 31 of the Vienna Convention with the addition of giving consideration to the totality of circumstances surrounding the act, including the reactions of others to the unilateral act; and – Acknowledging that the 2006 ILC Guiding Principles indicate that in the case of doubt a restrictive interpretation should be chosen, this principle does not appear to have been settled upon having in mind, or to appear justified in the case of, the interpretation of a deliberated written piece of legislation pertaining to either a national foreign investment law or a consent to ICSID jurisdiction.

72

unilateral declarations accepting the jurisdiction of the Court, see Fisheries Jurisdiction, supra note 26, ¶ 29, does not adopt a principle of restrictive interpretation. Tradex v. Albania, supra note 8, at 194.

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IV. Conclusion 674

A national foreign-investment law is best evaluated as a unilateral act under international law. As such, the Vienna Convention and the ILC Guiding Principles on unilateral acts are helpful interpretative aids by which to evaluate them. This approach results in an adoption of a good faith interpretation in accordance with the ordinary meaning to be given to the terms in their context and in light of the act’s object and purpose, as per Article 31(1) of the Vienna Convention, and an examination of the factual circumstances in which an unilateral declaration is made and the reactions to which it gave rise, as per ILC Guiding Principle 3. The approach in ILC Guiding Principle 7 of a restrictive interpretation in case of doubt, however, is likely not necessary, or justified, in the circumstances of a reasoned, debated, public law. Legislatures intend to be bound by their laws and for their laws to be followed. Legislation is discussed at length and is frequently the result of compromise between various constituents. Legal counsel is involved and procedures are followed by which the problems and confusion are (hopefully) removed from the law. The fear addressed by the ILC in its inclusion of the principle of restrictive interpretation appears instead to have been in relation to unscripted, oral statements by diplomats. The ILC acknowledged that there are differences between oral and written unilateral acts, but it desired to adopt comprehensive guidelines that applied to both equally (for better or for worse). Legislation is not similar to a diplomat’s off-the-cuff apparent promise or a leader’s political statements, both of which appear to have been the situations motivating the ILC in its articulation of Principle 7.

Chapter 35 State Succession and Commercial Obligations: Lessons from Kosovo Tai-Heng Cheng*

In the winter of 1999 in New Haven, Connecticut, at his “Public Order of the World Community: A Contemporary International Law” class, Professor W. Michael Reisman stated to assembled seminarians that state succession was a recurring problem that had not been satisfactorily addressed. Students set about examining different aspects of the problem of state succession. A policy-oriented approach to state succession and commercial obligations was in due course proposed,1 and it has generated discussions among associates of the New Haven School and scholars from other methodological traditions.2 This essay reflects on these discussions, and tests the

*

1

2

The author acknowledges the contributions of his research assistants Christopher Harrison, Raymond Girnys, Timothy Martin, and Lina Rodriguez. An expanded version of this article is forthcoming in Tai-Heng Cheng, International Law as Commitment (Oxford University Press, forthcoming 2011). Tai-Heng Cheng, State Succession and Commercial Obligations (2006); TaiHeng Cheng, Renegotiating the Odious Debt Doctrine, 70 Law & Contemp. Probs. 7 (2007). See Robert D. Sloane, The Policies of State Succession: Harmonizing Self-Determination and Global Order in the Twenty-First Century, 30 Fordham Int’l L.J. 1288 (2007); Henry H. Perritt Jr., Book Review, 25 Wis. Int’l L.J. 129 (2007); Roger P. Alford, Book Review, 23 Arb. Int’l 511 (2007); Gregory W. Bowman, Seeing the Forest and the Trees: Reconceptualizing State and Government Succession, 51 N.Y.L. Sch. L. Rev. 581 (2007); Mark A. Drumbl, Book Review, 6 Chinese J. Int’l L. 254 (2007); Jeremy Leong, Book Review, 11 Sing. Y.B. Int’l L. 356 (2007); Christiana Ochoa, From Odious Debt to Odious Finance: Avoiding the Externalities of a Functional Odious Debt Doctrine, 49 Harv. Int’l L.J. 109 (2008); Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties 215 & n.44 (2008); Benjamin E. Brockman-Hawe, A Comment on “State Succession to International Responsibility,” at 10 (forthcoming, Tilberg Rev. Int’l & Foreign L.); Mitu Gulati et al., The Dilemma of Odious Debts, 56 Duke L.J. 1201, 1205 n.5 (2007); Robert Howse, The Concept of Odious Debt in Public International Law, UNCTAD Discussion Papers, UNCTAD/OSG/ DR/2007/4 (July 2007), at 7.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 675-703.

IV Making and Applying Investment and Trade Law

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New Haven proposals against the decisionmaking process concerning international commercial arrangements following Kosovo’s declaration of independence in 2008. Kosovo’s independence supports conceptualizing state succession as a process in which a state’s internal authority structures are fundamentally reconfigured, triggering international claims that require global responses. Traditionally, state successions, like recessions, are often belatedly identified. The U.S. National Bureau of Economic Research identifies a recession only several months after the fact because it waits to observe an extended period of declining economic activity.3 International law scholars of the old school wait until a breakaway territory’s secession dispute is substantially resolved to pronounce that succession occurred some time prior. Mirabile dictu, at a retrospective moment in time, the international legal personality or territory of a state changed and succession occurred. Only after that point in time can questions arise about the termination vel non of public debts and treaties resulting from succession. This formalism fails to account for the reality that a breakaway territory may exercise the full prerogatives of a state with governments, corporations and international organizations that recognize it as a state, and may function less like a state with other entities that oppose its independence. Throughout the dynamic process in which the breakaway territory becomes more or less like a state vis-à-vis other international decisionmakers, disputes about international commercial arrangements may arise and require international solutions, as was the case with Kosovo. It is thus more useful to study state succession as a process of internal reorganization with external effects, which could include adjustments of international commercial arrangements throughout this process, rather than pretend that questions about the continuity of commercial obligations arise only after a date arbitrarily designated as the date of succession. In a sense, Kosovo presents a different paradigm from prior successions. In the dissolutions of the Soviet Union and Yugoslavia, disputes about the continuity of public debts, commercial treaties and private contracts arose only after succession occurred.4 In the independence of East Timor, the dissolution of the Czech and Slovak Federal Republic (the CSFR), and reversions of Hong Kong and Macau to China, adjustments to international commercial arrangements were planned prior to succession.5 In contrast, in the case of Kosovo, disputes about Kosovo’s share of Serbian debt proceeded in tandem, and were intertwined with, international disagreements about whether Kosovo’s declaration of independence was legal and whether it had succeeded from Serbia. Although the sequencing of succession and the transmission of debts and commercial arrangements with respect to Kosovo is different from prior contemporary successions, this essay will suggest that the five previously identified factors influencing outcomes of disruptions to international commercial arrangements caused by 3

4 5

See National Bureau of Economic Research, Determination of the December Peak in Economic Activity 1 (Dec. 11, 2008) (belatedly determining when the U.S. recession began). Cheng, supra note 1, at 343-45 & 268-70. Id. at 192-200, 240-47, 213-15, & 223-25.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

succession apply equally to Kosovo. These five factors are: (1) the density of international relationships; (2) minimum requirements of human rights generally and selfdetermination specifically; (3) supervening geopolitical factors; (4) the relative power and authority of decisionmakers; and (5) collective decisionmaking.6 A small but significant number of other states face separatist movements and oppose secession vigorously. Should provinces breakaway, we can expect the predecessor state to oppose succession. The predecessor state may continue, at least for a period of time, to accept responsibility for its entire public debt rather than hive off a portion to the putative successor state, in order to avoid acknowledging that succession occurred. Kosovo was consistent with this trend, and understanding the international decisionmaking process concerning Serbia and Kosovo’s international commercial obligations could thus help decisionmakers anticipate actions and outcomes in future successions. I. A Recurring Problem In 2005, Reisman anticipated that state succession would remain a recurring and disruptive international problem. He wrote: Successions occur within a state but become international legal problems when they affect governments and individuals in other states. As long as major state actors cultivated a Mercantilist economic policy, the external private commercial effects of radical transformations or personnel, decision structure or myth system within a state were likely to be confined to few other states. Successions had limited foreign impacts. Mercantilism had its day. The first great era of globalization, at the end of the 19th and beginning of the 20th centuries, concluded with a series of major revolutions that introduced new types of command economics and radically new notions of the relation between private property (and, in particular, foreign-owned private property) and the state. Succession controversies abounded. The second half of the 20th century witnessed the dissolution of the major Western empires and the emergence to independence of many formerly colonized lands. Succession controversies multiplied. The 20th century closed with another era globalization, which coincided, this time, with a series of massive counterrevolutions. Among other things, they reversed the by-then discredited comman economy model, replacing it with various approximations of liberal capitalism. There were more succession controversies. Given the international economy’s progression from interdependence to globalization, the impacts of successions on private commercial relations promise to be even greater. And in contrast to the comparatively restricted disruptions experienced during the Mercantilist era, future successions will be disruptive in a polymorphous sense. The velocity of political change within nation-states is quickening. So the international community may expect more and more disjunctive changes in the political structures and political economies of many states. The effects of each succession are likely to have increasing impacts for the rest of the international community. Should authentically Islamic forms or economic organiza6

Id. at 382; see also Drumbl, supra note 2, at 255; Perritt Jr., supra note 2, at 131-32.

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tion be installed in a renascent Caliphate in the dar al Islam, the worldwide effects in private economic relations could prove incalculable.7

678

Reisman’s projections remain prescient today. We can expect to see more successions in future. The Cold War geopolitical dynamic that held states in stasis also no longer exists. Some secessionist movements, cradled within the global human rights and self-determination program, are agitating with vigor. Kosovo is one example that has resulted in a declaration of independence. Other incipient successions, both inchoate and virtually choate, include South Ossetia in Georgia, Chechnya in Russia, and the Republic of Srpska in Bosnia. There are also long standing questions about Tibet, the Basque separatists in Spain and even Quebec in Canada. The potential for Islamist transformation in some countries also remains present, although it is unclear if Al Qaeda in the Middle East and the Taliban in Afghanistan and Pakistan are any closer to achieving their revolutionary goals. The commercial impact of succession has also intensified. The magnitude of debts owed by transitional states can be enormous,8 the web of commercial treaties dense,9 and the volume of private contracts with international counterparties immense.10 Consequently, every instance of state succession that threatens international commercial arrangements could potentially disrupt the global economy and the myriad activities it supports. Jurists should address with alacrity the contemporary law of state succession and commercial obligations. II. Prior Theories of State Succession Prior theories of state succession and commercial obligations have not gained universal acceptance.11 Most of these theories have attempted to deduce legal rules from interpretations of past successions, but these ex post derivations have not controlled ex ante the disposition of commercial obligations when state succession occurs.

7 8

9 10

11

W. Michael Reisman, Foreword to Cheng, supra note 1, at ix-x. President George W. Bush, State of the Union Address (Jan. 29, 2002), in 38 Wkly. Compilation of Presidential Documents, at 345; Presentation of the Iraqi Government at the Meeting with Iraq’s Commercial Claimants, Dubai, May 4, 2005 at 4 (on file with author); Joanna Chung & Stephen Fidler, Restructuring Under Fire: Why Iraq Debt is No Longer a Write Off, Fin. Times , July 17, 2006, at 15; Bureau of W. Hemisphere Aff., U.S. Dep’t of State, Cuba’s Foreign Debt (2003). See, e.g., Cheng, supra note 1, at 242-47 (discussing various commercial treaties that were confirmed, modified or terminated upon the dissolution of Czechoslovakia). See, e.g., Giuseppe Di Vittorio, [1998] 1 Lloyd’s Rep. 136 (Eng. Ct. App. 1997); Petrotimor Companhia De Petroleos v. Australia, 197 A.L.R. 461 (Austl. Fed. Ct. 2003); 767 Third Avenue Assocs. v. Consulate General of Socialist Federal Republic of Yugoslavia, 218 F.3d 152 (2d Cir. 2000). See Drumbl, supra note 2, at 254 (“International Law has not yet satisfactorily delineated the legal effects of State succession, especially on commercial obligations.”).

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

From the nineteenth century, theories of state succession distinguished between state and government succession.12 State succession involves a change in the territory or international legal personality of a state.13 Government succession involves a change in government, even a revolutionary reconfiguration of the internal power structures and personalities, without an accompanying change in the international legal personality of a state.14 Government successions are not thought to affect preexisting international commercial obligations.15 In contrast, jurists are divided on whether state succession disrupts international obligations when state succession occurs. Universal succession theorists in general propose that obligations that are extinguished from the predecessor state now bind the successor state.16 They advance various justifications, ranging from their selection and interpretation of state practice, to references to natural law and equitable notions of unjust enrichment.17 Clean-slate theorists in general propose that obligations of the predecessor state do not bind the successor state, except by the successor’s election.18 Contemporary state practice does not fully support the universal theories or the clean-slate theories.19 In the dissolution of the Soviet Union, Russia claimed to be 12

13 14 15 16

17 18

19

1 Daniel Patrick O’Connell, State Succession in Municipal Law and International Law 5 (1967) (“Until the middle of the nineteenth century, both [state and government succession] were assimilated, and the problems they raised were uniformly solved.”) (citing, inter alia, Grotius and Pufendorf ). Lee C. Buchheit, G. Mitu Gulati & Robert B. Thompson, The Dilemma of Odious Debts, 56 Duke L.J. 1201, 1206 (2007). Id. Id. at 1205. See Hugo Grotius, II De Jure Belli Ac Pacis, ch. ix., §§ 8, 12 (1625), translated in Hugo Grotius, of the Rights of War and Peace 221-22, 229-30 (J. Morice trans., 1715); Ernst H. Feilchenfeld, Public Debts and State Succession 25-29 (1931) (discussing Grotius’ theory); Arthur B. Keith, The Theory of State Succession: With Special Reference to English and Colonial Law 2-3 (1907) (discussing classical universal succession theories); Buchheit, Gulati & Thompson, supra note 13, at 1201. Patrick Dumberry, State Succession to International Responsibility 263-79 (2007) (discussing unjust enrichment). Matthew Craven, The Problems of State Succession and the Identity of State under International Law, 9 Eur. J. Int’l L. 142, 148 (1998) (explaining the obligations of the predecessor did not pass to the successor state); see also Keith, supra note 16, at 58-77 (arguing that successor states are not ipso jure bound by the obligations of the predecessor state, although for reasons of expediency, in some instances, the successor may opt to be bound); Yilma Makonnen, The Nyerere Doctrine 53-73 (1984) (discussing that the newly independent state may opt to renew any lapsed obligations by exercising its legally autonomous choice); Yilma Makonnen, Namibia: Its International Status and the Issue of Succession of States, 3 Lesotho L.J. 183, 198-203 (1987) (discussing the Nyerere Doctrine). Ochoa, supra note 2, at 126 n.89 (“neither of these absolutist theories is appropriate at this time”).

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automatically bound by the entire liabilities of the Soviet Union, in part to support its claim to the entirety of Soviet assets, military arsenal and seat in international organizations, such as the United Nations.20 Although some actors initially opposed this claim, such as Ukraine, which had an interest in the Black Sea Fleet,21 eventually Russia’s position prevailed with creditors, or successor states to the Soviet Union, and third parties.22 In contrast, when East Timor achieved independence, the commercial treaty that Indonesia had entered into with Australia to divide the spoils from energy resources extracted from the Timor Gap did not automatically continue to bind East Timor.23 Instead, the UN Transitional Administration for East Timor (UNTAET) and Australia negotiated a new treaty that more equitably divided Timor Gap revenues between Australia and East Timor,24 which the government of East Timor accepted upon its independence.25 These two case studies support contradictory theories of succession. Other contemporary incidents of succession could be interpreted to favor either the clean-slate or universal succession theories. In the dissolution of the CSFR into the Czech Republic and Slovakia, the respective successor states divided up the preexisting debt between them and accepted these debts by express agreement or notification to the creditors, such as the IMF, World Bank, and Paris and London clubs.26 20

21 22 23

24

25 26

See Paul Williams & Jennifer Harris, State Succession to Debts and Assets: The Modern Law and Policy, 42 Harv. Int’l L.J. 355, 382-83 (2001); Benedicte Vibe Christensen, The Russian Federation in Transition: External Developments 24-25, 34-36 (1994); see generally Stefan Oeter, State Succession and the Struggle Over Equity, 38 German Y.B. Int’l L. 73 (1995); Patrick Julliard, The Foreign Debt of the Former Soviet Union: Succession or Continuation?, in Dissolution, Continuation, and Succession in Eastern Europe 67 (B. Stern ed., 1998). See Cheng, supra note 1, at 352-53. Id. at 353-55. Exchange of Notes Constituting an Agreement Between the Government of Australia and the United Nations Transitional Administration in East Timor (UNTAET) Concerning the Continued Operation of the Treaty Between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area Between the Indonesian Province of East Timor and Northern Australia of 11 December 1989 (Feb. 10, 2000), 2000 Austl. T.S. 9; see also Vivian Forbes, Conflict and Cooperation in Managing Maritime Space in Semi-Enclosed Seas 219-20 (2001); Michael White & Jeffrey Weeks, Australian Maritime Law Update: 2000, 32 J. Mar. L. & Com. 371, 382-84 (2001); Ivan Shearer, International Law Weekend Proceedings: A Pope, Two Presidents and a Prime Minister, 7 ILSA J. Int’l & Comp. L. 429, 439 (2001). See UNTAET, Press Release: Timor Sea arrangement, negotiated by U.N., approved by East Timor Cabinet, July 3, 2002, available at http://www.un.org/peace/etimor/news/ N030701.htm. Timor Sea Treaty Between the Government of East Timor and the Government of Australia 2002, 2003 Austl. T.S. 13. Constitutional Law on the Division of Czechoslovakia Property Between the Czech Republic and the Slovak Republic, Constitutional Act No. 541/1992 (Nov. 13, 1992), reprinted in Central & Eastern European Legal Materials Release 19 (July 1993); see

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

This outcome could support the universal succession theory, since the CSFR’s debts were in fact accepted by its successor states. It could also support the clean-slate theory, because if the debts were transmitted ipso jure, no further acts or confirmations by the successor states should have been necessary. In the dissolution of the Socialist Federal Republic of Yugoslavia (the SFRY), the successor states eventually accepted their respective proportionate shares of the SFRY’s external debts in the Agreement on Succession Issues Between the Five Successor States of the Former Yugoslavia of 2001 (the 2001 Yugoslavia Agreement).27 This outcome indicates a tendency towards universal succession, yet the need for an international agreement to finally resolve a succession dispute that raged on for almost a decade equally supports an argument that, upon succession, commercial obligations do not automatically pass to successor states except by their consent. When Hong Kong reverted from the United Kingdom to China, the parties confirmed with treaty partners that many of the commercial treaties entered into by the United Kingdom concerning Hong Kong continued to apply to Hong Kong after its handover.28 Like the 2001 Yugoslavia Agreement, the acts and outcomes in the succession of Hong Kong support both universal succession and clean slate theories. Using contemporary incidents of state succession to derive purported legal rules governing the transmission vel non of commercial obligations upon succession is fraught with the perils of interpretative argument—as any seasoned advocate in court well knows. The absence of customary law guiding the disposition of commercial obligations when state succession occurs is not alleviated by treaties on the subject.29 In 1961, the UN General Assembly asked the International Law Commission (ILC) to study state succession as a pressing international problem.30 After decades of discussions, the ILC finally proposed draft articles on state succession in respect of treaties and

27

28

29

30

also Letter from Jan Klak, Minister of Finance CSFR, Ivan Kacarnik, Deputy prime Minister and Minister of Finance Czech Republic and Julius Toth, Minister of Finance Slovak Republic, to Lewis Preston, President of the World Bank Group, Dec. 4, 1992, cited in Paul R. Williams, State Succession and the International Financial Institutions: Political Criteria v. Protection of Outstanding Financial Obligations, 43 Int’l & Comp. L.Q. 776, 805 n.176 (1994). Agreement on Succession Issues Between the Five Successor States of the Former Yugoslavia 2001, 41 I.L.M. 3 (2002); see also Arthur Watts, Introductory Note to Agreement on Succession Issues Between the Five Successor States of the Former Yugoslavia, 41 I.L.M. 1 (2002). See The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, art. 153, reprinted in 29 I.L.M. 1519 (1990) (providing that international agreements to which the PRC is not a party, but which were previously implemented in Hong Kong prior to its restoration to the PRC, would continue to have legal effect in the Hong Kong SAR after the handover). See generally Cheng, supra note 1, chs. 3 & 4 (discussing the Vienna Convention on State Succession in Respect of Treaties of 1978 and the Vienna Convention on State Succession in Respect of Treaties, Archives and Debts of 1983, respectively). G.A. Res. 1686 (XVI), U.N. Doc. A/RES/1686 (XVI) (Dec. 18, 1961).

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on state succession in respect of property, archives and debts, in 1978 and 1983, respectively.31 These two sets of articles proposed elaborate taxonomies of types of state succession and rules governing the effect of each category of succession on treaties, property, archives and debts. With some modifications, UN member states voted to finalize these provisions as the Vienna Convention on Succession of States in Respect of Treaties of 1978 (the 1978 Convention) and the Vienna Convention on Succession of States in Respect of Property, Archives and Debts of 1983 (the 1983 Convention).32 Neither of these treaties resolves the issue of state succession and commercial obligations. The 1983 Convention lacks the requisite number of states parties and never entered into force.33 The 1983 Convention therefore does not formally bind any state. The 1978 Convention did enter into force, but to date it has only 22 parties.34 The 1978 Convention binds its parties, but successor states will not be parties prior to their succession. The 1978 Convention does not therefore address whether it binds successor states, and accordingly it may not control whether successor states are bound by its substantive provisions on the continuity or discontinuity of treaties upon succession. Both the 1983 Convention, which has seven parties,35 and the 1978 Convention, which has 22 parties,36 have not acquired the status of customary law through widespread acceptance of its provisions indicated by acceding to the convention. They do not therefore bind any successor state as a matter of customary law.

31

32

33

34

35 36

Draft Articles on Succession of States in Respect of Treaties with Commentaries Adopted by the International Law Commission at Its Twenty Sixth Session, U.N. Doc. A/ CONF.80/4, reprinted in 3 United Nations Conference on Succession of States in Respect of Treaties Official Record 5 (1979); Draft Articles on Succession of States in Respect of State Property, Archives and Debts with Commentaries Adopted by the International Law Commission at Its Thirty-Third Session, U.N. Doc. A/CONF.117/15, reprinted in 1 United Nations Conference on Succession of States in Respect of State Property, Archives and Debts Official Record 191 (1995). See Vienna Convention on Succession of States in Respect of Treaties 1978, 1946 U.N.T.S. 3 [hereinafter 1978 Convention]; U.N. Treaty Database, Vienna Convention on Succession of States in Respect of State Property, Archives and Debts 1983 [hereinafter 1983 Convention]. 1983 Convention supra note 32, art. 50(1). Only Croatia, Estonia, Georgia, Liberia, Slovenia, Macedonia, and Ukraine have acceded to this treaty. Available at http://treaties. un.org/doc/publication/mtdsg/volume i/chapter iii/iii-12.en.pdf (last visited Oct. 12, 2009). 1978 Convention supra note 32, at art. 49(1); Bosnia and Herzegovina, Croatia, Cyprus, Czech Republic, Dominica, Ecuador, Egypt, Estonia, Ethiopia, Iraq, Liberia, Montenegro, Morocco, Republic of Moldova, Serbia, Seychelles, Slovakia, Slovenia, St. Vincent and the Grenadines, Macedonia, Tunisia, and Ukraine have all ratified, acceded or succeeded to this treaty. Available at http://treaties.un.org/doc/publication/mtdsg/volume ii/chapter xxiii/xxiii-2.en.pdf (last visited Oct. 12, 2009). See supra note 33. See supra note 34.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

III. A Policy-Oriented Approach Even though there is limited positive law on the disposition of commercial obligations when state succession occurs, policy-makers and corporate officers nonetheless have to decide the status of debts, contracts and commercial treaties when succession occurs, with or without default legal rules. Their legal advisors, in-house attorneys and outside counsel may decide that their role is purely to provide advice on positive law. There being none, they may conclude that there is no role for law or lawyers in a problem they characterize as a purely political or business issue. Although this is a possible approach, it does not provide significant assistance in resolving a persistent and important problem. An alternative is to think about problem-solving more broadly, and systematically analyzing prior successions to provide guidance in future successions, which implicate legal relationships and are thus reasonably within the province of law, even if there are no bright-line answers prescribed by hard legal rules. In this way, attorneys and jurists may continue to contribute to the solution to problems of state succession when policy-makers and corporate officers look to them for guidance. A. State Succession Reconceptualized The absence of legal rules provides an opportunity to address the problem from its foundations, thereby potentially providing useful guidance unconstrained by formalistic taxonomies, which do not correspond closely to the dynamics of decisionmaking in succession and do not fully address the global policies at stake.37 Distinguishing government succession from state succession, and then claiming that commercial obligations are unaffected by government succession, ignores the reality that some debt and commercial obligations may be disrupted in government succession if preexisting commercial arrangements are obsolete or if they would debilitate the successor entity. Formalisitic reasoning may also fail to achieve the correct context-specific balance between global order, which is generally preserved by continuity of obligations, and the human rights of the people of the territory in question, which may be promoted by the termination of oppressive prior obligations. The United States’ invasion of Iraq in 2003 and replacement of Saddam Hussein with a new government would, under traditional legal taxonomies, be considered government and not state succession. Yet, such a classification, with its attendant claim that government successions do not disrupt preexisting international obligations, fails to account for, explain, and appraise the process in which Saddam-era debt was intensely negotiated among creditor states, private lenders, and leading law 37

See Sloane, supra note 2, at 1296 (“the lexicon of State succession, despite its veneer of analytic and organizational precision, offers little practical guidance to decision makers.”); see also Brockman-Hawe, supra note 2, at 10 (noting that Patrick Dumberry’s 2007 monograph on state succession to international responsibility maintained the distinction between state and government succession, “result[ing] in a work that comes off at times as somewhat strained.”).

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firms, leading eventually to claims settlements at ten to twenty percent of the original debts.38 The application of automatic and absolute continuity in government succession is too blunt to account for nuances in specific successions that require restructuring debts to promote the interests of creditors, debtors and the world community. In order to include in the scope of inquiry all incidents in which deep changes in international governance may potentially disrupt international commercial arrangements, state and government successions should be considered as the same type of international problem, and state succession should be defined to include government succession. The author has previously proposed that: “[S]tate Succession” includes any fundamental internal governance reorganization that causes, or may potentially cause, disruptions to international commercial arrangements and that requires an authoritative international response. Internal governance reorganizations are changes in power and authority over the people of the territory in succession.39

This approach is not novel. Daniel Patrick O’Connell, Chichele Professor of Public International Law at All Souls College, Oxford University, documented: “Until the middle of the nineteenth century both [state and government succession] were assimilated, and the problems they raised were uniformly solved.”40 Contemporary jurists and judges are once again rejecting the artificiality of distinguishing between state and government succession and are instead addressing the problem of succession writ large.41

38

39 40 41

Press Release, Republic of Iraq, Ministry of Fin., Iraq Announces Terms of Commercial Debt Settlement Offer (July 26, 2005); Republic of Iraq-JP Morgan Chase Bank Trust Indenture (Nov. 16, 2005) (providing terms); Press Release, Republic of Iraq, Ministry of Fin., Iraq Announces Launch of Debt-for-Debt Exchange Offer (Nov. 16, 2005), http:// www.eyidro.com/doc/TRUSTINDENTURE.pdf (discussing terms) (all copies on file with author). Cheng, supra note 1, at 50. See 2 O’Connell, supra note 12, at 5. See Bowman, supra note 2 at 584-85; Cheng, supra note 1, at 10-12; Robert J. Delahunty & John Yoo, Statehood and the Third Geneva Convention, 46 Va. J. Int’l L. 131, 160-61 (2005); Johannes Chan, State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights, 45 Int’l & Comp. L.Q. 928, 929 (1996); Roda Mushkat, One Country, Two Legal Personalities: The Case of Hong Kong 1 (1997); Brockman-Hawe, supra note 37, at 10 (favoring broader definition of state succession that includes government succession); Ochoa, supra note 2, at 125-26 (adopting the view that distinction between government and state succession is obsolete and conceiving of state and government succession interchangeably). But cf. Sloane, supra note 2, at 1302 (“[A] distinction between State and governmental succession may at times offer normative guidance on how participants should respond to geopolitical changes in the territorial or personal character of a State.”); Mortimer v. Federal Republic of Germany, No. 1:05-cv-10699, slip op. at 2 (S.D.N.Y. Apr. 9, 2008) (holding that state succession includes any fundamental reorganization of a state’s internal governance).

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

B. Policies, Trends and Conditioning Factors Having reconceptualized state succession to cover all fundamental reorganizations of internal power structures that result in international claims concerning preexisting commercial arrangements requiring an international response, the inquiry can turn to examine how such claims are likely to be presented and addressed. Here, searches for legal rules to assess claims that commercial obligations are disrupted or that they continue are unlikely to yield conclusive results, as discussed above. Instead, lawyers can provide policy-makers and corporate executives useful guidance by extrapolating from past succession incidents likely outcomes in future successions based on the presence or absence of similar interests and pressures in the succession at issue, and appraising these trends against relevant policy preferences.42 A multi-faceted analysis and appraisal of five interlocking factors affecting succession outcomes has been mapped elsewhere,43 and a distilled exposition is provided here in lieu. 1. Density of Relationships A prior study of contemporary successions has indicated that a baseline trend in succession issues relating to commercial arrangements is to promote global order by avoiding the complete disruption of preexisting arrangements.44 The explanation for this trend also has normative appeal: states and non-state actors are so interconnected and mutually dependent that totally destroying preexisting commercial arrangements would impose tremendous and unacceptable costs to all parties. The denser preexisting relationships, the stronger the impulse to avoid tearing them apart through succession. The associative relationships among the policy (promoting world order), the factor (density of relationship), and trend (protecting international arrangements) apply to commercial treaties. In the restoration of independence of the Baltic states in the early 1990s, even though preexisting commercial treaties had been imposed by their Soviet overlords, the Baltic states nonetheless elected to confirm those treaties as continuing to apply to them so long as their commercial purposes were still relevant.45 In the dissolution of the CSFR, a contentious dispute emerged between Hungary and Slovakia concerning the continuation or termination of the GabcikovoNagymaros Project on the Danube River, which was partially constructed pursuant to an international agreement entered into by their communist predecessors.46 The International Court of Justice ruled that the obligations to properly construct the 42 43

44 45 46

Perrit Jr., supra note 2, at 132 (“good lawyers analyze politics and economics as well as law.”). See Cheng, supra note 1, at 382. These factors have been discussed by other scholars. See Perritt Jr., supra note 2, at 131-32; Drumbl, supra note 2, at 255; Bowman, supra note 2, at 588; Leong, supra note 2, at 356-57. See Cheng, supra note 1, at 382. See id. at 359-60. Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1997 I.C.J. 7, 31-32 (I.C.J. Sept. 27, 1997).

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dam remained in force,47 and explained that the alternative would cause unacceptable environmental damage and disruption to the populations along the entire stretch of the Danube River.48 This importance of global order does not, however, translate into the slavish continuation of all prior commercial treaties on their old terms. Because the raison d’être in commercial negotiations following succession is often the pragmatic pursuit of mutual interests, commercial treaties that are still relevant tend to remain in force, obsolete treaties are terminated, and treaties that need adjusting to accommodate new economic and political realities are modified. These legal outcomes may be achieved through various procedures, ranging from confirmation by an exchange of letters, unilateral declarations of continuity, or formally acceding to the treaty at issue. The succession of Hong Kong had minimal impact on commercial obligations. Commercial treaty obligations were generally preserved. Article 153 of the Basic Law of Hong Kong provides that international agreements to which the People’s Republic of China is, or becomes a party to, would apply to Hong Kong if so decided by the government of the People’s Republic of China, after seeking the views of the Hong Kong government.49 Macau is another example. Macau was a member of the WTO prior to its succession and remained a member after it dissolved to China on December 20, 1999.50 Macau also remained bound by the General Agreement on Tariffs and Trade (GATT), to which it was a party as of January 11, 1991.51 In the dissolution of the Soviet Union, the treaty partners of Russia and the Soviet Union wished to benefit from prior arrangements involving the Soviet Union, and recognizing Russia as the continuity of the Soviet Union provided a basis to give legal effect to these intentions. Many states accordingly supported Russia’s claim to be the continuing international legal personality of the Soviet Union.52 The preservation of commercial obligations after succession applies to private contracts as well. In Russian Federation v. Pied-Rich B.V., the Netherlands Court of Appeal held that Russia had succeeded to the rights and obligations of the Soviet Union and was bound by the Soviet Union’s guarantor obligations under its contract with Pied-Rich, an Amsterdam company.53

47 48 49 50 51 52 53

Id. at 72, ¶ 123. Id. at 77-78, ¶ 140. Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, art. 153, 29 I.L.M. 1519 (1990). See World Trade Organization, Trade Policy Review: Macau, China 7 (2001). See id. at 11. See Cheng, supra note 1, at 356. Russian Federation v. Pied-Rich B.V., S & S (1993) No. 93 (Neth. Ct. App. 1992), partial translation in 24 Neth. Int’l L. Rev. 156 (1993), aff ’d, S & S (1993) No. 91 (Neth. Sup. Ct. 1993), partial translation in 25 Neth. Int’l L. Rev. 512 (1994). But see 767 Third Avenue Assocs. v. Consulate General of Socialist Federal Republic of Yugoslavia, 218 F.3d 152 (2d Cir. 2000) (holding question of successor states liabilities of Yugoslavia’s rent obligations in New York were not justiciable).

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

The trend towards general continuity is also apparent in succession to public debts. In every succession since the end of the Cold War, successor states have divided the predecessor’s debts among themselves if the predecessor disintegrated. In the dissolution of the Soviet Union, Russia accepted the entirety of Soviet debt.54 In the dissolution of CSFR, the Czech Republic and Slovakia divided up IMF, World Bank and Paris Club debts in a ratio of roughly 2:1, reflecting their relative populations.55 In the dissolution of the SFRY into five successor states, each state eventually accepted its equitable share of Yugoslavia’s debt.56 In the regime change in Iraq, the new government became responsible for the prior regime’s debt.57 2. Human Rights and Self-Determination The trend towards continuity to promote global order is not, however, absolute and does not constitute an inviolable rule. Minimum requirements of human rights are generally aligned with the self-interest of state and non-state actors to avoid global disruptions from states failing. These considerations often compel counterparties in commercial arrangements and debtors in loans to avoid burdening successor states with untenable commercial obligations. Thus, the public debts inherited by Russia,58 the five successor states of the SFRY, 59and the government of Iraq60 were all rescheduled to extend the repayment timeline or discounted through claims settlements when it became apparent the repayment of preexisting debt became practically impossible. International commercial arrangements that are wholly unjust but which serve some commercial purpose may be adjusted to more fairly distribute economic benefits. During the process through which East Timor gained independence, the Timor

54 55 56

57

58 59

60

See Williams & Harris, supra note 20, at 382-83. See supra note 26. See Agreement on Succession Issues Between the Five Successor States of the Former State of Yugoslavia 2001, pmbl., 41 I.L.M. 3 (2002) (stating that SFRY has five equal successor states). See Presentation at Meeting with Iraq’s Commercial Claimants 5 (May 4, 2005) (noting “restructuring agreement reached with [Iraq’s] Paris Club creditors in November 2004, providing for eighty percent debt reduction”); Paris Club, Debt Treatment, Comparability of Treatment Provision (Nov. 21, 2004); Press Release, Republic of Iraq, Ministry of Fin., Iraq Announces Terms of Commercial Debt Settlement Offer (July 26, 2005); Republic of Iraq-JP Morgan Chase Bank Trust Indenture (Nov. 16, 2005) (providing terms); Press Release, Republic of Iraq, Ministry of Fin., Iraq Announces Launch of Debt-for-Debt Exchange Offer (Nov. 16, 2005) (discussing terms) [hereinafter Iraq Debt Settlement Documents]. See Cheng, supra note 1, at 355 (discussing IMF and World Bank’s use of fresh loans as leverage for repayment by the Russian Federation of Soviet loans). See Cheng, supra note 1, at 24 (“In 2005, Serbia and Montenegro accepted their portion of SFRY debt and effectively rescheduled it by refinancing it with bonds due in 2010 and 2024.”) (citing Republic of Serbia Offering Circular, (Mar. 7, 2005)). Iraq Debt Settlement Documents, supra note 57.

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Gap Treaty was renegotiated to increase East Timor’s benefits from Timor Gap exploration with Australia.61 When Iraq underwent regime change, the international human rights movement revived the idea that odious debts imposed by a dictator to oppress his population should not be inflicted on the population when they break free from oppression and establish their own government. It is doubtful this idea ever gained sufficient traction with private lenders and states,62 and the final debt settlement documents do not mention odious debt.63 Instead, the policy of promoting human rights and selfdetermination, which is broader and more nuanced than a putative doctrine of odious debts, was embedded in the final solution to Saddam-era debt. Iraq’s debt was deeply discounted, in an effort to enable Iraq to repay its loans within an extended time frame necessary to avoid undermining its economy and ultimately, its ability to repay outstanding debts and to transition to a stable state. 3. Supervening Political Factors Supervening political factors may distort the trends to preserve international commercial arrangements and to adjust them if necessary to prevent a successor state from failing in its transition to full and effective statehood. International commercial disputes are not often resolved in isolation from other geopolitical issues surrounding succession. Russia’s insistence on assuming the entirety of Soviet debt was not motivated purely by a desire to preserve preexisting commercial arrangements; it was principally to stake a claim over the Soviet nuclear and conventional arsenal, as well as the Soviet Union’s position in key international decisionmaking bodies like the UN Security Council. The delays in distributing the SFRY’s debt among its five successor states was caused by the alienation of Serbia while Slobodan Milosevic was in power and committing genocidal acts on Muslim minorities, which was unacceptable to the international community. When state succession implicates greater interests or global policies than commercial arrangements, commercial disputes may become an instrument in broader negotiations and their final resolution is likely to be contingent upon a wider geopolitical settlement. The sequencing of events can affect the influence of geopolitical factors over questions about commercial arrangements. Where a succession is anticipated and the relevant state and non-state actors have ample time to plan for the succession, the adjustment of preexisting commercial arrangements is more likely to be orderly and immunized from abrupt geopolitical disagreements. In the transfers of Hong Kong and Macau from the United Kingdom and Portugal, respectively, to China, the predecessor states negotiated and planned the transfers, years in advance, and addressed many questions regarding the continuity or termination of commercial and 61 62

63

See UNTAET Press Release, supra note 24; Cheng, supra note 1, at 199; Cheng, supra note 1, at 25. Vikram Nehru & Mark Thomas, The Concept of Odious Debt: Some Considerations, World Bank Economic Policy & Debt Dept. Discussion Paper (May 22, 2008). But cf. Howse, supra note 2. Iraq Debt Settlement Documents, supra note 57.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

other treaties.64 Expectations of continuity or adjustment were crystallized through exchanges of letters and other diplomatic communications.65 Consequently, upon the successions of Hong Kong and Macau, international commercial agreements were seamlessly adjusted, minimizing disruptions to the global economy.66 In February 1992, the Czech and Slovak Republics realized that the constitutional framework set up under the CSFR would no longer serve the interests of either individual republic. On August 27, 1992, Vladimir Meciar, the Prime Minister of the Slovak Republic, and Vaclav Klaus, the Czech Republic Prime Minister, agreed that the CSFR would dissolve into two separate republics on January 1, 1993. In preparation for the dissolution of the CSFR, the two republics concluded over 25 intergovernmental agreements concerning the division of federal powers and obligations and the basis of their cooperation after dissolution.67 In the succession of East Timor from Indonesia’s occupation, the transition to independence was managed by UNTAET, pursuant to UN Security Council Resolutions 1272, under Chapter VII of the UN Charter.68 UNTAET administered East Timor from 1999 to 2002.69 In this period of time, it renegotiated the Timor Sea Agreement, so that the arrangements between Australia and an independent East Timor were in place almost immediately upon independence, and largely insulated from animosity against Australia’s complicity with Indonesia’s occupation of East Timor.70 There is much to commend about such a planned approach to succession. However, not all successions proceed smoothly. Often successions emerge from popular uprisings and find the predecessor state in denial. In such instances, disputes 64

65

66 67 68 69 70

See Draft Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Future of Hong Kong, reprinted in 23 I.L.M. 1366 (1984); Joint Declaration of the Government of the People’s Republic of China and the Government of the Republic of Portugal on the Question of Macau 1987. See Note from the Permanent Representative, People’s Republic of China, to the Secretary-General, United Nations, June 20, 1997, 36 I.L.M. 1675 (1997); Note From the Permanent Representative, United Kingdom, to the Secretary-General, United Nations, June 20, 1997, 36 I.L.M. 1684 (1997). See generally Cheng, supra note 1, 216-22, 225-26 (discussing the impact of the successions of Hong Kong and Macau, respectively, on commercial obligations). See Williams & Harris, supra note 20, at 400-01; Cheng, supra note 1, at 240-41. See S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999). See S.C. Res. 1410, U.N. Doc. S/RES/1410 (May 17, 2002). See Cheng, supra note 1, at 199 (“On July 5, 2001, UNTAET and Australia signed a memorandum of understanding on the ‘Timor Sea Agreement.’ Under the Timor Sea Agreement, East Timor and Australia would share the production of oil or gas in the ratio of 9:1. This ratio compared very favorably to the Timor Gap Treaty, which shared production between Australia and Indonesia equally.”). Compare Treaty Between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area Between the Indonesian Province of East Timor and Northern Australia 1989, 29 I.L.M. 475 (1990), with Timor Sea Treaty Between the Government of East Timor and the Government of Australia 2002, 2003 Austl. T.S. 13.

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about dividing up debt may be acrimonious and drawn out. In the case of the SFRY, no resolution could be reached on the question of succession to debts until Milosevic was no longer in power, years after the SFRY had dissolved. 4. Relative Power and Authority of Decisionmakers The balance among the density of relationships, minimum requirements of human rights, and supervening geopolitical factors is mediated by the relative power and authority that decisionmakers apply in pursuing their own policy preferences and interests. In the restorations of Hong Kong and Macau to China from the United Kingdom and Portugal, respectively, the interests of predecessor states, territories undergoing succession, the successor state, investors, and corporations were generally aligned towards minimizing disruptions to commercial arrangements. Thus the power and authority of decisionmakers supported, and achieved, continuity in commercial obligations.71 In the dissolution of the SFRY, the interests of most of the successor states and creditors were to minimize disruptions to commercial arrangements so that the successor states could meaningfully participate in the global economy. The Federal Republic of Yugoslavia (the FRY), however, did not share these interests, and had the power to stall resolution on the issue of SFRY’s debt, because global settlement could not be achieved with one successor state holding out. It was only when Milosevic was no longer in power and Belgrade became keen to reintegrate itself into the community of nations that settlement was achieved with relative speed.72 Another clear example on the distorting effect of power and authority is the dissolution of the Soviet Union, in which there was no distribution of debts among the successor states. Russia was overwhelmingly powerful, and it was thus able to deploy its immense power and authority to secure control over Soviet assets together with the entirety of its debts, which creditors had to reschedule on terms acceptable to Russia.73 5. Collective Decisionmaking To fully account for power and authority that mediates between human rights, world order, and the interests of decisionmakers, collective decisionmaking must be considered. Collective decisionmaking can be part of the process to achieve an outcome in state succession. Interested parties, through negotiations, may reach explicit agreements on the continuation or termination of prior commercial arrangements, such as when the Czech Republic and Slovakia each confirmed through diplomatic notes with CSFR’s treaty partners the international agreements that remained in force, including many treaties regarding commercial matters.74

71 72 73 74

See Cheng, supra note 1, at 233-36. See id. at 304-05. See id. at 353-54. See id. at 259-61.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

Implicit collective decisionmaking may also significantly influence outcomes. In recent state successions, the IMF and World Bank have had a strong influence on the division of the predecessor state’s debt among its successor states. Following the dissolution of the CSFR, the IMF and World Bank allocated its debts to the two institutions between the Czech Republic and Slovakia in a two-to-one ratio.75 Although other private creditors were free to distribute their CSFR debt differently, the IMF and World Bank allocations implicitly provided a decision to follow, and allowed for a smooth transition of private debts according to the IMF allocation.76 IV. Reflections on Kosovo Kosovo’s succession is the latest critical case study to further develop the law of state succession and commercial obligations. Although succession is a recurring problem, state successions do not occur with great frequency. Every new succession provides additional important data to examine and appraise. Studying the relationship between Kosovo’s declaration of independence and disruptions to international commercial arrangements is also useful because, somewhat surprisingly, in the relatively copious scholarly works on Kosovo,77 scant attention has been paid to issues concerning its commercial obligations.78 Kosovo’s succession is unusual in that disruptions to international commercial arrangements have been raised and partially addressed, even though Kosovo’s succession is in dispute at the time of this writing. Presently, although the United States and some fifty states have recognized Kosovo as a state,79 Serbia and other important states such as Russia have denied that succession occurred and have refused recognition,80 and many other states have neither recognized nor withheld recognition of Kosovo. The International Court of Justice is considering a request from the 75 76 77

78

79

80

See id. at 259. Id. at 260-61. See, e.g., William Thomas Worster, Law, Politics, and the Conception of the State in State Recognition Theory, 27 B.U. Int’l L.J. 115 (2009); Robert J. Delahunty & Antonio F. Perez, The Kosovo Crisis: A Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft, 42 Vand. J. Transnat’l L. 15 (2009); Jure Vidmar, International Legal Responses to Kosovo’s Declaration of Independence, 42 Vand. J. Transnat’l L. 779 (2009). See also Perritt, Jr. supra note 2, at 134 (recommending that “international and local decision makers involved with Kosovo … organize a constructive approach to working out the complicated succession issues embedded in a decision over the final status of Kosovo.”). See Christopher J. Borgen, The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia, 10 Chi. J. Int’l L. 1, 4 (2009) (noting 58 recognitions as of Summer 2009); Kosovo Thanks You, http://www.kosovothanksyou.com (noting 62 recognitions as of October 10, 2009); Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, ¶ 1, U.N. Doc. S/2009/300 (June 10 2009). Press Release, Security Council, Security Council Meets in Emergency Session Following Kosovo’s Declaration of Independence, with Members Sharply Divided on Issue: Serbia’s

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UN General Assembly for an advisory opinion on the legality of Kosovo’s independence.81 Although a final outcome in its succession has not been reached, albeit that may simply be a matter of time, disputes about its succession to commercial treaty arrangements, international contracts, and Serbia’s public debt have already emerged and require international attention. Although there are other recent successions, such as the dissolution of the SFRY, that also required some years to finally resolve questions of whether and when succession occurred, questions about the disposition of international commercial arrangements were addressed only when there were no serious questions about whether succession occurred, and certainly not while the legality of a declaration of independence was the subject of ICJ deliberation. It is appropriate to consider whether under the inverted sequencing of events in Kosovo’s succession, the policy-oriented law of state succession and commercial obligations discussed in Part III holds, or whether it requires adjusting. A. Geopolitical Context To understand the ongoing decision process in Kosovo regarding state succession and commercial obligations, it is necessary to situate the legal issues in their geopolitical context.82 The Balkans is a multi-ethnic and multi-religious region. It has been ruled at different times by the Byzantines, Croats, Serbs, Hungarians and Turks. In the midfourteenth century, the Ottoman Empire was expanding, and in 1369, Sultan Murad I advanced his army deeper into Serbia. The Serbian Prince Lazar, together with other noblemen and their troops, met the Ottoman force at Kosovo. The Serbs were heavily outnumbered, and the Ottoman army prevailed, but both sides suffered heavy causalities, including the Prince and Sultan. The Battle of Kosovo became a symbol of Serbian independence, for it temporarily halted the Ottoman’s advance.83 To some Serbs, Kosovo is the considered the birthplace of their identity,84 the cradle of the great Serbian medieval empire, and a symbol of Serbian civilization and culture.85

81 82

83

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President, Russian Federation Say Declaration Illegal; United States, United Kingdom, France, Others Favour Recognition of New State, U.N. Doc. SC/9252 (Feb. 18, 2008). See G.A. Res. 63/3, U.N. Doc. A/RES/63/3 (Oct. 8, 2008). See generally Vidmar, supra note 77; Milena Sterio, The Kosovar Declaration of Independence: “Botching the Balkans” or Respecting International Law, 37 Ga. J. Int’l & Comp. L. 267 (2009); Security Council Report, Kosovo Historical Chronology, http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5471333/k.280/October_2009brKosovo. htm (last visited Oct. 12, 2009) (listing events over the past thirty years that have lead to Kosovo’s declaration of independence). See Hajredin Kuci, The Legal and Political Grounds for, and the Influence of the Actual Situation on, the Demand of the Albanians of Kosovo for Independence, 80 Chi.-Kent L. Rev. 331, 336 (2005); Vidmar, supra note 77, at 784; Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 Am. J. Int’l L. 161, 167-68 (1999). See Sterio, supra note 82, at 270. Henry H. Perritt, Jr., Final Status for Kosovo, 80 Chi.-Kent L. Rev. 3, 6 (2005).

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

This symbolism does not reflect present-day Kosovo. Serbia is predominantly Serb and Christian. Kosovo is mostly Muslim and Albanian, with a Serbian minority isolated in the northern part of Kosovo. Additionally, Kosovo is very poor; the unemployment rate hovers at more than fifty percent overall, and more than seventy percent for youth. The economy remains the poorest in Europe outside of the former Soviet Union and the average monthly salary does not exceed 250.86 One in six Albanians lives in poverty.87 In World War Two, the Axis forces occupied Yugoslavia. In 1943, the SFRY, firmly under the Soviet sphere of influence, was proclaimed. It comprised six republics: Bosnia-Herzegovina, Croatia, Slovenia, Montenegro, Macedonia and Serbia, which included the autonomous region of Kosovo.88 Except for Bosnia, each of the republics roughly represents a distinct ethnic group. Today each of the republics of the former Yugoslavia uses their own language, but they are all Slavic languages similar to SerboCroatian.89 By the end of the 1980s, Communism was waning. Milosevic came to power in 1987 with the rise of Serbian nationalism following the fall of the Berlin Wall and Soviet communism. He became a hero in Serbia in 1987 when he went to Kosovo to qualm the fears of local Serbs amid a strike by Kosovar Albanian miners that was paralyzing the province. By 1989, Milosevic was firmly in control of the Serbian republic and embarked on a campaign to consolidate his power throughout Yugoslavia. On the 600th anniversary of the Battle of Kosovo, Milosevic presided over a massive rally attended by more than a million Serbs at Kosovo Polje, the location of the historic battle.90 One of his first acts following this historic event was to rescind the autonomy enjoyed by Kosovo and institute draconian martial law in the province. Kosovar Albanians were fired from their jobs, their schools were closed, they were denied access to state-run health care, and they lost administrative control of the province. 91 As Milosevic pushed for more power over Yugoslavia, the other republics began to break away. In 1990, Slovenia, Croatia and Macedonia issued declarations of independence. Efforts by Slovenia and Croatia to secede led Serbia to invade them. Eventually, however, Slovenia and Croatia achieved succession. Bosnia-Herzegovina

86 87 88 89 90

91

See Sterio, supra note 82, at 275. See Sterio, supra note 82, at 274. See Economic Intelligence Unit, Country Profile: Bosnia and Herzegovina 1998-1999, at 4-5 (1998). See generally Robert D. Greenberg, Language and Identity in the Balkans: The Serbo-Croatian Disintegration (2004). Robert F. Carolan, An Examination of the Role of Hybrid International Tribunals in Prosecuting War Crimes and Developing Independent Domestic Court Systems: The Kosovo Experiment, 17 Transnat’l L. & Contemp. Probs. 9, 12-13 (2008). See Sterio, supra note 82, at 271; Borgen, supra note 79, at 3; Michael T. Kaufman, Crisis in the Balkans: The History; Two Distinct Peoples With Two Divergent Memories Battle Over One Land, N.Y. Times, April 4, 1999, § 1, at 10.

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followed suit. More civil wars followed until the Dayton Peace Agreement in 1995. The SFRY had broken up into the FRY, Slovenia, Croatia and Bosnia-Herzegovina.92 Kosovo, too, began to agitate against Milosevic’s oppression. In 1998 fighting broke out between Serbian forces and Kosovar Albanian forces resulting in a bloody crackdown by Milosevic. Under international pressure, the violence waned in late 1998 and NATO called off planned airstrikes. Violence flared up again in 1999 resulting from provocations on both sides and the use of excessive force by the Serbs. Milosevic used brutal tactics of oppression in response to more ethnic upheavals in Kosovo staged by the Kosovo Liberation Army (KLA), a separatist movement. Eventually, NATO countries launched a series of airstrike on Serbian territory, which ultimately forced Milosevic into a peace agreement in Rambouillet, France in June of 1999.93 Under the terms of the Rambouillet Peace Agreement and subsequently UN Security Council Resolution 1244, the UN Mission in Kosovo (UNMIK), a United Nations provisional authority, was to administer Kosovo.94 Resolution 1244 struck a careful balance between self-determination and sovereignty. It reaffirmed both: “the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region,” as well as “substantial autonomy and meaningful self-administration for Kosovo.”95 It also set in motion a process for Kosovo’s self-governance. It established an international civil presence, which would be responsible for “[p]romoting the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo.”96 On September 30, 2000, Vojislav Kostunica was elected President of the FRY. With the removal of Milosevic, Belgrade’s outlook turned favorable. From 2003, the FRY existed as the Union of Serbia and Montenegro. This union proved short lived. With EU involvement, Montenegro by referendum voted to secede and became an independent republic and the Republic of Serbia remained as the continuing legal entity.97 Kosovo did not transition to independence as smoothly as Montenegro, and negotiations over Kosovo’s status remained inconclusive for years. The parties involved, including the Serbian leadership, Kosovar representatives, and UN and EU representatives tried negotiating repeatedly. Due to strong differences of opinion concerning the future of Kosovo, they were never able to reach a consensus. While pragmatically 92

93

94 95 96 97

Case Concerning the Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91, at 231-34, ¶ 88 (Feb. 26). Rambouillet Accords: Interim Agreement for Peace and Self-Government in Kosovo, U.N. Doc. S/1999/648 (June 7, 1999), available at http://www.state.gov/www/regions/ eur/ksvo_rambouillet_text.html. See S.C. Res. 1244, U.N. Doc. S/RES/1244, ¶ 10 (June 10, 1999). Id. pmbl. Id. ¶ 11(a). Case Concerning the Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 91 at 29, ¶ 67 (Feb. 26).

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

recognizing the need to accommodate to Western demands, Serbia maintained its position that Kosovo remain a territorial part of Serbia with strong regional autonomy. Kosovo insisted on independence.98 The United States strongly favored Kosovo’s independence to promote stability in the Balkans while Russia favored the Serbs.99 In 2005, the former Finnish President Martti Ahtisarri was appointed Special Envoy of the UN Security General.100 Although negotiations continued to make only limited headway, on March 26, 2007, Ahtisarri produced a Report of the Special Envoy of the Secretary General on Kosovo’s Future Status (the Ahtisarri Plan), which UN Secretary General Ban Ki Moon transmitted to the Security Council.101 The Ahtisarri Plan proposed independence for Kosovo, supervised by the international community.102 The Security Council did not endorse the Ahtisarri Plan because Russia made clear it would veto any resolution expressing support for Ahtisarri’s proposal to grant Kosovo independence. In August 2007, in a further effort at a diplomatic solution, the UN Secretary General requested a troika comprising the European Union, United States and Russia broker further talks for 120 days. 103 After yet more futile talks,104 the United States and the European Union expressed their willingness to recognize Kosovo as an independent state. The European Union also created the European Union Rule of Law Mission in Kosovo (EULEX), which was to assist Kosovo in building its legal institutions without supplanting UNMIK’s peace keeping role. It was no secret that with the support of the United States and the European Union, Kosovo planned to declare its independence on February 17, 2008.105

98 99

100

101

102 103

104 105

See Sterio, supra note 82, at 272-73. Press Release, U.S. Dep’t of State, Condoleezza Rice, U.S. Recognizes Kosovo as Independent State (Feb. 18, 2008) (“In light of the conflicts of the 1990s, independence is the only viable option to promote stability in the region.”). Press Release, Security Council, Secretary-General Appoints Former President of Finland as Special Envoy for Future Status Process for Kosovo, U.N. Doc. SG/A/955, BIO/3714, (Nov. 15, 2005), available at http://www.un.org/News/Press/docs/2005/sga955.doc.htm. Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status, Martti Ahtisaari, Delivered to the Security Council, U.N. Doc. S/2007/168 (Mar. 26, 2007) (the “Ahtisaari Plan”). Id. at 4, ¶ 13. Security Council Report, Kosovo Historical Chronology, supra note 83; Press Release, Secretary-General Welcomes Agreement on New Kosovo Initiative, U.N. Doc. SG/ SM/11111 (Aug. 1, 2007). Press Release, Troika, Troika Press Statement on Kosovo, S336/07 (Nov. 20, 2007). Vidmar, supra note 77, at 804.

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When that date came, the Kosovo Assembly declared independence and adopted a constitution.106 Article 143 of the Kosovo Constitution expressly gave overriding legal effect to the Ahtisarri Plan as a matter of Kosovo constitutional law.107 The United States, along with France, Germany, the United Kingdom, and other countries, promptly recognized the existence of the new state. On February 18, U.S. President Bush issued a letter granting Kosovo recognition. It stated: On behalf of the American people, I hereby recognize Kosovo as an independent and sovereign state. I congratulate you and Kosovo’s citizens for having taken this important step in your democratic and national development. I am pleased to accept your request that our two countries establish diplomatic relations. The United States would welcome the establishment by Kosovo of diplomatic representation in the United States and plans to do likewise in Kosovo.

Following on U.S. recognition of Kosovo, the existing U.S. office in Pristina was designated as an embassy in April 2008. Kosovo’s succession was however disputed by other countries, including China, Greece, Russia, and Spain.108 On October 8, 2008, Serbia brought a draft resolution to the Sixty-Third Session of the UN General Assembly, proposing that the General Assembly request an advisory opinion on the legality of Kosovo’s declaration of independence.109 The question Serbia proposed was carefully worded: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?110

Posing this question to the ICJ for an advisory opinion avoided explicitly addressing whether Kosovo had succeeded, since the United States and the European Union supported Kosovo’s succession. It also avoided bringing a contentious dispute against Kosovo, because that would entail at least implicitly recognizing Kosovo had attained

106 See Dan Bilefsky, Kosovo Declares Its Independence, N.Y. Times, Feb. 18, 2008, at A1; Kosovo’s MP Proclaim Independence, BBC News Online, Feb. 17, 2008, http://news.bbc. co.uk/go/pr/fr/-/2/hi/europe/7249034.stm (last visited Oct. 9, 2009); see also Kosovo Adopts a New Constitution, BBC News Online, Apr. 9, 2008, http://news.bbc.co.uk/go/ pr/fr/-/2/hi/europe/7339239.stm (last visited Oct. 9, 2009); Radio Free Europe/Radio Liberty, Kosovo: Constitution born amid fears of turmoil, June 13, 2008, http://www.unhcr.org/refworld/docid/4864eab5c.html (last visited Oct. 9, 2009); Dan Bilefsky, Kosovo’s New Constitution Takes Effect, N.Y. Times, June 16, 2008, at A8. 107 Republic of Kosovo Constitution, art. 143. 108 Vidmar, supra note 77, at 834-35, n.378. 109 U.N. GAOR, Request for an Advisory Opinion of the International Court of Justice on whether the Unilateral Declaration of Independence of Kosovo is in Accordance with International Law, 63rd Sess., 22nd plen. mtg., U.N. Doc. A/63/PV.22 (Oct. 8, 2008). 110 G.A. Res. 63/3, U.N. Doc. A/RES/63/3 (October 8, 2008).

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

statehood, as only states can be sued before the ICJ.111 Nonetheless, this strategy was intended to have a chilling effect on other states that might have been considering recognizing Kosovo. Ceterus paribus, few states would wish to be perceived as supporting an illegal act. The General Assembly voted in favor of the resolution with 77 states in favor, six states against—including the United States and the United Kingdom—and 74 abstentions.112 At the time of this writing, Kosovo functions in many ways as a state. More than fifty states have recognized Kosovo.113 Over a dozen countries have established embassies in Pristina.114 Kosovo’s internal governance also resembles a state. As according to a UNMIK report dated June 10, 2009: Although many Kosovo Serbs reject the authority of Kosovo institutions derived from the “Constitution of the Republic of Kosovo,” as does the Government in Belgrade, increasing numbers continue to apply for Kosovo identity cards, driver’s licenses and other Kosovo documentation, and sign contracts with the Kosovo Energy Corporation in order to facilitate their daily lives in Kosovo.115

At the same time, however, Serbia, Russia and other states continue to oppose Kosovo’s independence and have not recognized it as a state. The ICJ advisory opinion is pending. B. External Public Debts Although there remain questions surrounding Kosovo’s succession, its declaration of independence almost immediately triggered claims about whether international public debts owed by Serbia, but for the benefit of Kosovo, remained with Serbia or passed to Kosovo. These claims are still in the process of being fully resolved, but preliminary indicators suggest that the five factors influencing the disposition of commercial obligations, discussed above at Part III, provide an adequate framework to understand, and are confirmed by, the Kosovo succession. In 2001, when the FRY became a member of the World Bank, it signed a loan agreement with the World Bank to restructure its portion of outstanding SFRY debt owed to the World Bank. A portion of this debt, known as “Consolidation Loan C,” had been taken out by the SFRY for activities in Kosovo. Through this restructuring, the FRY became the borrower of record for Consolidation Loan C. As recently as 111 Statute of the International Court of Justice, art. 34(1) (June 26, 1945). 112 G.A. Res. 63/3, supra note 110; see Press Release, United Nations General Assembly, Backing Request by Serbia, General Assembly Decides to Seek International Court of Justice Ruling on Legality of Kosovo’s Independence, U.N. Doc. GA/10764 (Oct. 8, 2008). 113 Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, ¶ 1, U.N. Doc. S/2009/300 (June 10, 2009). 114 See Ministry of Foreign Affairs of the Republic of Kosovo, Foreign Missions in Kosovo, http://www.ks-gov.net/mpj/?page=2,50. 115 Supra note 113, ¶ 7.

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November 13, 2007, the World Bank continued to take the view that Serbia, as the continuing legal personality of the FRY, “has legal responsibility to ensure continued service of this loan, as well as similar Paris and London Club obligations.”116 As of 2009, Consolidation Loan C amounted to some  380 mn.117 Normally, when a territory achieves independence, its predecessor state has an economic interest passing off as much of its external debt as possible. This economic interest was particularly strong in the case of Serbia, because it was a transitional economy faced with high debts as a proportion of gross domestic product (GDP). From 2002 to 2007, Serbia’s GDP increased from 15.8 to 40.8. However, its external debt as a percentage of GDP only fell only from 70.9 to 59.6.118 The succession of Kosovo was not however the normal case. A national priority for Serbia was to retain Kosovo as a province and to oppose its secession. When Kosovo declared independence in 2008, had Serbia claimed that Kosovo became responsible for Consolidation Loan C, that might have implied acceptance that Kosovo had achieved statehood. Without succession, there could be no other reason for Kosovo assuming the localized debt that Serbia had hitherto been responsible for under the 2001 World Bank debt rescheduling. Belgrade calculated that the political cost of such a claim was too high, and instead opted to incur the economic costs of Consolidation Loan C to bolster its objections to Kosovo’s succession. On June 9, 2008, the National Bank of Serbia issued a statement stating that it planned to repay Kosovo debt, and that the Serbian government had set aside the budget to do so. For its part, Kosovo’s priority was establishing statehood. Membership in international organizations such as the IMF and World Bank would provide further evidence of its succession. As a practical matter, it would also connect Kosovo with the international financial system and help provide access to much needed loans for development. As for becoming responsible for Consolidation Loan C, it could avoid an excessive drag on its economy if patron states, such as the United States, would provide financial assistance and diplomatic support in obtaining debt cancellation or rescheduling. On July 10, 2008, Kosovo applied for IMF and World Bank membership. The IMF issued a press release stating that it determined that Kosovo “has seceded from Serbia as a new independent state and that Serbia is the continuing state. Accordingly, Serbia continues its membership in the International Monetary Fund (IMF) and retains … all assets in, and liabilities to, the IMF.”119

116 World Bank, International Bank for Reconstruction and Development, International Finance Corporation Multilateral Investment Guarantee Agency: Country Partnership Strategy for the Republic of Serbia for the Period FY08- FY11, Report No. 41310-YF, p. 28, ¶ 101 (Nov. 13, 2007). 117 Id. at 27, ¶ 95. 118 Id. at 4, tbl.1. 119 Press Release, Statement on Membership of the Republic of Kosovo in the IMF, No. 08/179 (July 15, 2008), available at http://www.imf.org/external/np/sec/pr/2008/pr08179.htm.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

By May 2009, it became apparent that Kosovo would be granted membership to the World Bank and IMF.120 With limited mileage left in continuing to service Kosovo’s debt, and the world economic crisis affecting Serbia’s economy, passing Kosovo’s debt became a priority. Serbia’s deputy Prime Minister Mladjan Dinik issued a statement insisting that Kosovo would have to assume the portion to Serbian debt to the World Bank allocated to Kosovo upon Kosovo’s accession to the IMF and World Bank.121 He argued this was fair because Kosovo had not paid taxes to Serbia for a decade.122 One year later, on June 29, 2009, Kosovo became a member of the IMF and World Bank.123 Although Kosovo’s accession to the World Bank was not formally conditioned on an agreement regarding assumption of Consolidation Loan C, the two issues were closely linked. Without Kosovo’s agreement to assume repayment obligations, it is doubtful that it would have gained membership to the IMF and World Bank. Immediately after signing the membership agreement with the World Bank, representatives of Kosovo gathered at the Treaties Room of the U.S. Department of State to sign a loan assumption agreement in the presence of U.S. Deputy Secretary of State James Steinberg.124 Under the agreement, Kosovo would become responsible for repaying Consolidation Loan C, Serbia would be correspondingly released from those repayment obligations.125 This decisionmaking process did not result in Kosovo becoming responsible for any portion of Serbia’s general debt. An argument could have been made, based on state practice, that on succession a proportionate share of general debt, as opposed to localized debt for the benefit of the seceding territory, should also pass to the successor state. Yet, it does not appear as of this writing that any portion of Serbia’s general debt has passed to Kosovo. An analysis of the decision-making process involving Kosovo’s succession to debts would be incomplete without accounting for international efforts to assist Kosovo in repaying its debts. At Kosovo’s signing of the loan agreement with the World Bank, 120 Press Release, World Bank, Kosovo Joins World Bank Group Institutions, No: 2009/448/ ECA (June 29, 2009), available at http://go.worldbank.org/JQDFZZ9RM0; Press Release, IMF, IMF Offers Membership to Republic of Kosovo, No. 09/158 (May 8, 2009), available at https://www.imf.org/external/np/sec/pr/2009/pr09158.htm. 121 Kosovo to Pay Off 1bn Dollar Debt if It Joins IMF, World Bank—Serbian Minister, BBC Monitoring Europe, May 8, 2009. 122 Id. 123 Press Release, Kosovo Becomes the International Monetary Fund’s 186th Member, No. 09/240 (June 29, 2009), available at http://www.imf.org/external/np/sec/ pr/2009/pr09240.htm.; Press Release, Kosovo Joins World Bank Group Institutions, No. 2009/448/ECA (June 29, 2009), available at http://web.worldbank.org/WBSITE/ EXTERNAL/NEWS/0,,contentMDK:22230081~pagePK:34370~piPK:34424~theSite PK:4607,00.html?cid=ISG_E_WBWeeklyUpdate_NL. 124 Transcript of Remarks of U.S. Deputy Secretary of State James Steinberg, June 29, 2009, http://www.state.gov/s/d/2009/125480.htm (last visited Oct. 10, 2009). 125 Id.

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U.S. Deputy Secretary of State Steinberg announced that the U.S. would pay 150 mn. of Kosovo’s debt to the World Bank.126 The World Bank has also sought further donors to assist Kosovo in its debt repayment, and the European Commission has pledged assistance.127 C. Commercial Treaties After Kosovo came under international administration pursuant to UN Security Council Resolution 1244, UNMIK concluded a range of international commercial treaties on behalf of Kosovo. These include free trade agreements with Albania (2003), Macedonia (2005), Croatia (2006) and Bosnia and Herzegovina (2006).128 On December 19, 2006, Kosovo became a member of the Central European Free Trade Agreement, a multilateral free trade agreement between non-EU countries in Southern and Central Europe.129 Issues concerning the continuity or disruption of these treaties when Kosovo declared independence have not generally arisen. This is not surprising. UNMIK had concluded the commercial treaties on behalf of Kosovo. At the time the treaties were signed, both Kosovo and UNMIK lacked a state’s international legal personality. Yet Kosovo exercised economic functions autonomously. Practically speaking, the international agreements memorialized and consolidated expectations among Kosovo and its treaty partners as to their respective international trade regulations. Kosovo’s declaration of independence may have changed its international legal personality, or not. But any change in legal personality should not, in these circumstances, render the agreements obsolete or raise questions about whether the newly-formed Kosovo government or state would not wish to be bound by the agreements. There might also appear to be a formalistic reason for the absence of any disruptions. UNMIK is an international mission created through UN Security Council’s Chapter VII powers and it accordingly reflects the position of the Security Council on Kosovo. Because Russia and the United States cannot agree on Kosovo’s status, UNMIK accordingly remains “status neutral” on Kosovo. If Kosovo has not achieved independence, then the question of whether CEFTA and other commercial treaties have been disrupted as a result of succession does not arise. This logic is ultimately flawed. Although UNMIK facially seems “status neutral,” to presume that there has been no disruption could imply that there has not been succession. If UNMIK were truly status neutral, it would regard the status of Kosovo was undetermined, and the question of whether disruptions to free trade agreements had arisen would be correspondingly indeterminate.

126 Id. 127 Press Release, European Commission, European Commission and Government Seal 103m Assistance Deal for Kosovo, Sept. 25, 2009, http://www.delprn.ec.europa. eu/?cid=2,103,586 (last visited Oct. 12, 2009). 128 Kosovo Customs Website: Free Trade Agreements, http://www.dogana-ks.org/?cid=2,43. 129 Id.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

The functional explanation for the lack of disruptions provides a solution. When succession might have, but not necessarily, occurred, if the continuity or termination of commercial treaties is determined by whether the treaties continue to serve their purposes regardless of the legal personality of the treaty parties, then the status of Kosovo is immaterial. In such a case, UNMIK would be free to remain status neutral without necessarily confronting whether the question of whether disruptions to commercial treaties had arisen. D. Appraisal The unfolding succession of Kosovo and its impact on international commercial arrangements comports with the five relevant factors under a policy-oriented approach to state succession and commercial obligations. As to the density of relationships, the interconnectedness of the global economy has rendered it impractical to completely disrupt international debts and commercial arrangements through the process of succession. Although there were initially questions about whether Kosovo or Serbia should be responsible for Consolidation Loan C owed to the World Bank, there was never any doubt that one of them would be responsible and the World Bank would not be left holding debt without a debtor. Even though lawyers may debate the technicalities of whether free trade agreements remain in force when Kosovo’s succession claims have yet to be fully resolved, the necessity of continuing to trade internationally and regionally dictates that all parties to the agreements treat them as remaining in force. The alternative of incurring transaction costs to renegotiate useful commercial treaties when there are many other priorities of nation building in Central Europe is simply impractical. As to the importance of human rights and self-determination, the demands of freeing Kosovo from Serbian oppression aligned with global interest in stability in the Balkans and avoiding yet another failed state. Consequently, even though Kosovo assumed SFRY debt localized to the territory of Kosovo, the United States and the European Union have taken it upon themselves to subsidize Kosovo’s loan repayments, providing Kosovo with a fighting chance at economic development without an unsustainable debt overhang. As to distortions caused by supervening geopolitical considerations, this factor is clearly demonstrated by Serbia’s initial insistence on servicing Kosovo’s debt in order to bolster its claim that Kosovo remained a Serbian province. Yet, the immense economic pressure of additional debt on Serbia’s transitional economy, particularly in a time of global recession, eventually contributed to Serbia’s capitulation to the more normal pattern of passing debt localized in the breakaway province to its independent government. The last two factors, the relative power and authority of decisionmakers, and collective decisionmaking, can be addressed together. In the succession of Kosovo, there were opposing blocs of states. Kosovo itself was supported by the United States and the European Union. Serbia was supported by Russia and other states. Because Russia and the United States are both permanent members of the UN Security Council with veto powers, the Security Council could not take a position on Kosovo’s inde-

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pendence and UNMIK remains status neutral. Backed by the substantial power of the United States and the European Union behind it, however, Kosovo’s government was able to declare independence. With financial, infrastructure and manpower support offered by the United States and EU states, directly as well as through the International Civilian Office and EULEX, Kosovo has been able to function increasingly like a state in internal and external affairs. The question of Kosovo’s legal status, presently pending before the ICJ, has not stopped Kosovo, the United States and the European Union from finding workarounds to continue to transition Kosovo towards sustainable independence, including membership to the IMF and World Bank, as well as responsibility for its portion of SFRY debt coupled with debt assistance from donor states. In addition to understanding the international decisionmaking process concerning commercial arrangements when succession occurs, it is important to also appraise whether the process achieves relevant policy goals in the service of world order and human dignity. The author has previously expressed satisfaction with the balance between minimizing disruptions to the global economy and avoiding debilitating obligations for the successor state.130 In contrast, Robert Sloane has suggested that the present accommodation may inadequately promote human dignity, such as the human rights of the people in the transitional successor state.131 Sloane’s view reflects a different policy emphasis, and it may not be possible to address differences in normative orientations without extended debate beyond the scope of this essay. If Zasloff and Steinberg are correct that law ultimately is less of a science and more of “a disciplined craft requiring practical wisdom and sophisticated judgment,”132 then scholars may reasonably judge the importance of global policies differently. Even without resolving whether the law of state succession should place greater emphasis on human rights than it currently does, it is possible to draw from the Kosovo experience an observation that the human rights dimensions are unlikely to ever be fully addressed through adjustments to international commercial arrangements alone. Even if Kosovo’s succession is eventually universally recognized, there are real questions about whether Kosovo could be independently sustainable without perennial financial and manpower support from the United States and the European Union. The economic and social difficulties that the East Timorese have continued to face after they achieved independence in 2003,133 even with its energy resources in the Timor Gap, underscores the perils of secession. Human rights matter. If contemporary successions indicate that independence may be an ineffective modality to maximize the well-being of minority groups concentrated in small territories within states, because the heavily-independent states may be too small to succeed, then the 130 Cheng, supra note 1, at 405. 131 Sloane, supra note 2, at 1316. 132 Richard H. Steinberg & Jonathan M. Zasloff, Power and International Law, 100 Am. J. Int’l L. 64, 87 (2006). 133 International Monetary Fund, Democratic Republic of Timor-Leste, Staff Report for the 2009 Article IV Consultation, IMF Country Report No. 09/219 (July 8, 2009), available at http://www.imf.org/external/pubs/ft/scr/2009/cr09219.pdf.

35 Tai-Heng Cheng, State Succession and Commercial Obligations: Lessons from Kosovo

law of succession may need to promote human rights by reconsidering or inventing forms of self-governance in which territories remain associated with other states and international organizations.134 Full independence may not be the appropriate solution in every case. Such a transformation of the law of state succession will undoubtedly require scholars to consider how to adjust international commercial arrangements when hybrid forms of quasi-succession occur. But altering the decisionmaking process concerning commercial obligations alone cannot invent the sort of alternatives to state succession that may be called for here. V. Conclusion One of the chief advantages of New Haven jurisprudence is that it provides guidance to decisionmakers and their advisors about what to do in international problems with legal dimensions. It is hoped that this essay about state succession, commercial obligations, and Kosovo has illustrated the utility of methodologically canvassing available data to understand decisionmaking dynamics, to appraise them against relevant global policies, and to make recommendations accordingly. Skeptics may continue to point out, as they have for half a century now, that this is well and good, but it is not law.135 Indeed, it may be impossible to prove them correct or wrong.136 They may also imply that the role of the legal scholar and jurist is to identify legal rules as such and to leave political decisionmaking to decisionmakers. Certainly, there is a proper place for this role, such as advocacy before courts. But, for a nascent cabinet vexing over independence in secret, and for the chief executive of an international bank facing a debtor state on the brink of dissolution, the guidance they seek from legal counsel may not be simply: What are the applicable laws? More likely, they also want to know: What should we do? New Haven jurisprudence helps to provide answers to these questions.

134 See generally Obiora Chinedu Okafor, Re-Defining Legitimate Statehood (2000); Ralph Wilde, International Territorial Administration (2008); Robert Trisotto, Seceding in the 21st Century: A Paradigm for the Ages, Brooklyn J. Int’l L. (forthcoming), available at works.bepress.com/cgi/viewcontent. cgi?article=1000&context=robert_trisotto. 135 Oscar Schachter, Panel Remarks, McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 Am. Soc’y Int’l L. Proc. 266, 273 (1985); Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 Am. J. Int’l L. 302, 303 (1999). 136 See generally Tai-Heng Cheng, International Law as Commitment (forthcoming 2011, Oxford University Press) (proposing that different international law theories do not meaningfully disagree at a conceptual level because they are derived from different ontological and normative commitments).

703

Chapter 36 Emergency Clauses in Investment Treaties: Four Versions Rudolf Dolzer

I. Michael Reisman: His Magisterial Horizon Michael Reisman’s standing as a towering intellectual figure among international lawyers essentially results from three different qualities. He commands a superb wealth of knowledge of international legal doctrine and practice, based on wide-ranging research and studies in most diverse areas and corners. This magisterial horizon is informed by his deep sense of order and policy that guides his sharp analytic skill. And his search for a compass (instead of a compilation of facts) is driven by intellectual roots that spread way beyond the realm of international law, indeed, beyond the realm of law. Together, these qualities of knowledge, of the sense for order, and of intellectual openness allow him to leave his imprint on the landscape of international legal doctrine, to influence legal practice, and to fascinate students from all over the world by his teaching. Our paths have crossed in general ways in our work on international investment law, and it is therefore appropriate that I direct this contribution in his honor to a topic in this rapidly growing field of international law. In this area, as in others, he belongs to the foremost experts; with masterly publications in demanding style, his skills are sought internationally in all areas of international practice. His special contribution to the field is his overreaching perspective of the technicality of the subject matter, its broad links to general rules of international law, and the peculiarities of international investment practice. The status of emergency clauses in investment treaties lies at one of those intersections of investment law, of general international law, and of economics, which is characteristic of the field. II. The Text of Article XI of the Argentina-U.S. BIT We shall here focus specifically on Article XI of the bilateral investment treaty (BIT) between Argentina and the United States, against the background of recent diverse awards of international arbitral tribunals on their understanding and application.1 The text of Article XI, by now famous in investment circles, reads: 1

The author has served as an expert in a number of proceedings against Argentina.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 705-718.

IV Making and Applying Investment and Trade Law

This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.

706

At first sight, an approach focusing on Article XI only may not allow for a broader judgment on emergency clauses generally, inasmuch as other BITs contain different clauses, many of them contain no clause at all, and the position of the United States itself has significantly evolved since the BIT with Argentina was concluded in 1991. However, discussion of the various approaches to the interpretation of Article XI of the BIT underlying the existing awards will necessarily touch upon policy perspectives that go beyond Article XI and throw some light on the broader questions of the nature, content, and suitability of emergency clauses generally in investment treaties. At least to a limited extent, Professor Reisman’s interest in order and policy can thus be captured in this contribution about the specific emergency clause in one particular treaty. III. The “Ordinary Meaning” of the Terms Article XI of the BIT is phrased in words to be understood in accordance with generally accepted rules of interpretation. Not surprisingly for a clause aiming broadly to address situations of an extraordinary character, often called emergency clauses, the provision is drafted so as to rely on terms such as “public order,” “the maintenance or restoration of international peace or security,” and the “protection of its own essential security interests.” Moreover, the assessment of “measures necessary” to safeguard these interests, as provided in the text also will call for interpretation and application in the light of the circumstances. For understandable reasons of flexibility, the BIT’s drafters stated a principle with a clear meaning but did not define the individual terms under consideration.2 Looking at the understanding and application of Article XI as a whole, its phrasing entails that the relevant terms have to be interpreted in accordance with the general rules of interpretation of treaties laid down in Article 31 of the Vienna Convention on the Law of Treaties (Vienna Convention).3

2

3

For other examples of similar, broadly phrased clauses, see Sempra Energy Int’l v. Argentine Republic, ICSID Case No. ARB/02/16, ¶ 375 (Sept. 28, 2007) (Award); Enron Creditors Recovery Co. v. Argentine Republic, ICSID Case No. ARB/01/3, ¶ 333 (May 22, 2007) (Award); and CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, ¶ 333 (May 12, 2005) (Award), reprinted in 44 I.L.M. 1205 (2005). Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331.

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IV. The Object and Purpose of the BIT Tribunals have rightly turned to the preambles of treaties for the determination of their object and purpose.4 The preamble to the BIT between Argentina and the United States reads: The United States of America and the Argentine Republic, hereinafter referred to as the Parties; Desiring to promote greater economic cooperation between them, with respect to investment by nationals and companies of one Party in the territory of the other Party; Recognizing that agreement upon the treatment to be accorded such investment will stimulate the flow of private capital and the economic development of the Parties; Agreeing that fair and equitable treatment of investment is desirable in order to maintain a stable framework for investment and maximum effective use of economic resources; Recognizing that the development of economic and business ties can contribute to the well-being of workers in both Parties and promote respect for internationally recognized worker rights; and having resolved to conclude a Treaty concerning the encouragement and reciprocal protection of investment;

Both the substance of this preamble and the content of the BIT resemble those of other treaties. The general description of the object and purpose of an investment treaty applies to the present BIT as well: It is reasonable to assume that the object and purpose of investment treaties is closely tied to the desirability and to the nature of foreign investments, to the benefits for the host state and for the investor, to the conditions necessary for the promotion of foreign investment and, conversely, to the removal of obstacles which may stand in the way of allowing and channelling more foreign investment into the host states. Thus, the purpose of investment

4

See Saluka Inv. B.V. v. Czech Republic, ¶ 299 (Mar. 17, 2006) (Partial Award), available at http://www.pca-cpa.org/showfile.asp?fil_id=105; Continental Casualty Co. v Argentine Republic, ICSID Case No. ARB/03/9, ¶ 80 (Feb. 22, 2006) (Decision on Jurisdiction); CMS Gas Transmission Co., ICSID Case No. ARB/01/8, ¶ 274; Aguas del Tunari, S.A. v Bolivia, ICSID Case No. ARB/02/3, ¶¶ 153, 240-41, 247 (Oct. 21, 2005) (Decision on Jurisdiction); Noble Ventures v Romania, ICSID Case No. ARB/01/11, ¶ 52 (Oct. 12, 2005) (Award); MTD Equity Sdn. Bhd. v. Chile, ICSID Case No. ARB/01/7, ¶¶ 104-05 (May 25, 2004) (Award), reprinted in 44 I.L.M. 91 (2005); Siemens v Argentina, ICSID Case No. ARB/02/8, ¶ 81 (Aug. 3, 2004) (Decision on Jurisdiction), reprinted in 44 I.L.M. 138 (2005); Lauder v. Czech Republic, ¶ 292 (Sept. 3, 2002) (Award), reprinted in 9 ICSID Rep. 66 (2006).

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treaties is to address the typical risks of a long-term investment project, and thereby to provide for stability and predictability in the sense of an investment-friendly climate.5

708

One of the key objectives of the United States in negotiating BITs in the 1980s and early 1990s was to strengthen and reinforce, not just treaty standards, but also the rules of customary law, which had been questioned in the previous decade.6 Given the BIT’s particular object and purpose, it is evident that any interpretation of Article XI that would seriously affect the operation of the BIT’s guarantees would conflict with the purpose for which it was concluded. We shall return to this setting of Article XI below in discussing how the provision serves as an exception to the general purpose of the BIT. V. Article XI in the Context of the BIT: A Fundamental Exception to the Basic Scheme The Vienna Convention requires that Article XI’s context within the BIT also be considered in the process of interpretation. Beyond relying on broad terms in need of interpretation, Article XI is characterized within the BIT by the fact that it prescribes that under the exceptional conditions set forth in the provision, the power of the host state to act in a lawful manner is broader than during regular times. This is obvious from the text of Article XI. Beyond its general nature as an exception, Article XI will be recognized as a rule that stands in contrast to the very object and purpose of the BIT, which is, inter alia, to agree upon the protection of the investment of the foreign investor and thereby to stimulate the flow of investment. Article XI contains an exception to this scheme, which is fundamental in light of the purpose of the BIT as a whole: the host state may take measures under Article XI that aim specifically to protect interests of the host state rather than interests of the investor. Consequentially, Article XI, by its very nature as a rule valid for emergency periods only, will allow the host state to take measures inconsistent with the general purpose of the BIT during such times in which the investor’s interest may be more vulnerable than during other periods. It is not implausible to assume that during times of unrest, a host government may turn to measures that are more targeted at groups of foreigners than to the nationals of the host state. In general terms, the European Court of Human Rights has pointed to the vulnerability of aliens in the political process as follows: Especially as regards a taking of property effected in the context of a social reform, there may well be good grounds for drawing a distinction between nationals and non-nationals as far as compensation is concerned. To begin with, non-nationals are more vulnerable to 5 6

Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 22 (2008). In U.N. resolutions, developing countries had in the previous decade sought to establish new standards.

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domestic legislation: unlike nationals, they will generally have played no part in the election or designation of its authors nor have been consulted on its adoption. Secondly, although a taking of property must always be effected in the public interest, different considerations may apply to nationals and non-nationals and there may well be legitimate reason for requiring nationals to bear a greater burden in the public interest than non-nationals.7

As regards the situation of the foreign investor in particular, the situation is no different.8 Looking in conjunction at these considerations concerning the position of the alien in general and the purpose of a BIT in particular, the fundamental character of Article XI as an exception to the guarantees in the BIT becomes obvious. From a policy viewpoint, the pros and cons of such a clause from the diverse viewpoints of the host state and the investor are easily recognized, and a general assessment of the desirability of such a clause in the BIT will be subject to diverse viewpoints. This ambivalence in the evaluation of a clause such as Article XI also becomes apparent in the fact that not all BITs contain an emergency clause. In conclusion, a rule for an emergency such as Article XI bears all the marks of a fundamental exception within a BIT scheme, and the interpretation of such a clause in a BIT must correspondingly take that nature into account by way of special emphasis on a restrictive approach of interpretation. Similarly, as regards the customary rule of necessity, the Gabčíkovo decision of the International Court of Justice (ICJ) has reached the parallel decision that the conditions for necessity must be “strictly defined.”9 The manner of interpretation of Article XI also has to take into account this setting of Article XI as an exception within the BIT as a whole. It is widely recognized that special rules of interpretation apply to provisions in a treaty scheme that serve as exceptions to one or more principles laid down in a treaty. In particular, such provisions have to be interpreted and applied in a restrictive manner. This method of interpretation has long been recognized and serves to ensure that the principle on which the parties have agreed will be respected and safeguarded as the primary concern of the agreement, and that the substance of principle will have priority over the borders for the principle established by the exception.10 7 8 9

10

James v. United Kingdom, 98 Eur. Ct. H.R. (ser. A) 14, 63 (1986). See CMS Gas Transmission Co., ICSID Case No. ARB/01/8, ¶¶ 331, 336. Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 I.C.J. 7, 31 (Sept. 25). The ruling in Gabčíkovo is approvingly cited in Bernardus Henricus Funnekotter v. Zimbabwe, ICSID Case No. ARB/05/6, ¶ 105 (Apr. 22, 2009) (Award). See, e.g., German Interests in Polish Upper Silesia, 1926 P.C.I.J. (ser. A) No. 7, at 76 (May 25) (“It should be observed, moreover, that the liability to expropriation of rural property constitutes, under the Geneva Convention, an exception; in case of doubt as to the scope of this exception, its terms must therefore be strictly construed.”); see also D.P. O’Connell, International Law 257 (2d ed. 1970); Oppenheim’s International Law 1279 (R. Jennings & D. Watts eds., 9th ed. 1992); 6 J.H.W. Verzijl, International Law in Historical Perspective 317 (1973); W.J. Ganshof van der Meersch, Reflexion

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VI. Article XI in the Context of General International Law 710

In the process of interpreting Article XI, regard must also be paid to the rules of general international law. The BIT, being an international legal agreement, is embedded in the rules of general international law. These rules provide context in the process of interpretation when the treaty’s terms are not clear or when gaps in the treaty become apparent. The role of a rule’s context in the process of its interpretation has also been highlighted from a policy perspective in the recent debate on issues caused by the increasing fragmentation of international rights and obligations, the unnecessary divergence of norms and the increasing need for consistency, transparency and manageability of the international legal order.11 Early on, Asian Agricultural Products Ltd. v. Sri Lanka12 recognized that the interpretation of a BIT will take into account general international law: [A BIT] is not a self-contained closed legal system limited to provide for substantive material rules of direct applicability, but it has to be envisaged within a wider juridical context in which rules from other sources are integrated through implied incorporation methods, or by direct reference to certain supplementary rules, whether of international law character or of domestic law nature.

In MTD Equity Sdn. Bhd. v. Chile, an ICSID Tribunal expressed itself clearly on this point.13 It concluded that the dispute before it, “being a dispute under the BIT, the parties have agreed that the merits of the dispute be decided in accordance with international law,” and that “the parties have agreed to this arbitration under the BIT. This instrument being a treaty, the agreement to arbitrate under the BIT requires the Tribunal to apply international law.”14

11 12 13 14

sur les Methods d’Interprétation de la Cour Européenne des Droits de l’Homme, 11 Documentacao e Direito Comparado 107, 116 (1982); J. Souberyrol, The International Interpretation of Treaties and the Consideration of the Intention of Parties, 85 J. du Droit Int’l 687, 693 (1958). See Int’l L. Comm’n, Report of the International Law Commission ¶ 251, U.N. Doc. A/61/10 (Sept. 21, 2006). Asian Agric. Prod. Ltd. v. Sri Lanka, ICSID Case No. ARB/87/3, ¶ 257 (June, 27 1990) (Award), reprinted in 30 I.L.M. 577 (1991). MTD Equity Sdn. Bhd. v. Chile, ICSID Case No. ARB/01/7, ¶ 86 (May 25, 2004) (Award), reprinted in 44 I.L.M. 91 (2005). Id.; see also Sempra Energy Int’l v. Argentina, ICSID Case No. ARB/02/16, ¶ 378 (Sept. 28, 2007) (Award); CMS Gas Transmission Co. v. Argentina, ICSID Case No. ARB/01/8, ¶ 334 (May 12, 2005) (Award), reprinted in 44 I.L.M. 1205 (2005); Loewen Group Inc. v. United States, ICSID Case No. ARB(AF)/98/3, ¶ 160 (June 26, 2003) (Award), reprinted in 42 I.L.M. 811 (2003); Elettronica Sicula S.p.A. (ELSI) (U.S./Italy), 1989 I.C.J. 67 (July 20).

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Also, in regard to a treaty between Iran and the United States, the Iran-U.S. Claims Tribunal found that [a]s a lex specialis in the relations between the two countries, the Treaty supersedes the lex generalis, namely customary international law. This does not mean, however, that the latter is irrelevant in the instant Case. On the contrary, the rules of customary law may be useful in order to fill in a possible lacunae of the Treaty, to ascertain the meaning of undefined terms in its text or, more generally, to aid interpretation and implementation of its provision.15

Considerations pointing to general international law as context of Article XI are also reinforced by specific provisions within the BIT outside Article X. Several provisions of this BIT speak directly to the significance to be attached to general international law. Given that the U.S. program was meant to strengthen rules of customary law, the emphasis on general international law is not surprising. Thus, Article II of the BIT states that an investment “shall in no case be accorded treatment less favourable than that required by international law,” in line with practice in other treaties as they promote the protection by international law.16 Article X also clarifies that the BIT is not meant in any way to lower the standards of international law: “[t]his Treaty shall not derogate from … b) international legal obligations … that entitle investments or associated activities to treatment more favourable than that accorded by this Treaty in like situations.” Turning specifically to the same subject matter that is regulated in Article XI, it will be noted that Article IV(3) specifically addresses the legal status of investors in periods of emergency. Nationals or companies of either Party whose investments suffer losses in the territory of the other Party owing to war or other armed conflict, revolution, state of national emergency, insurrection, civil disturbance or other similar events shall be accorded treatment by such other Party no less favorable than that accorded to its own nationals or companies or to nationals or companies of any third country, whichever is the more favorable treatment, as regards any measures it adopts in relation to such losses.

As confirmed by arbitral jurisprudence, Article IV’s only object is to broaden the protection accorded to the investor beyond the guarantees provided by customary law during periods of emergency.17 Thus, the substance of Article IV is to provide additional protection for the investor and not to reduce protection otherwise available. 15 16 17

Amoco Int’l Fin. Corp. v. Iran, 15 Iran-U.S. Cl. Trib. Rep. 222 (1987). See Rudolf Dolzer & Margrete Stevens, Bilateral Investment Treaties 47 (1995). “It is evident … that the purpose of Article IV is not to exclude compensation for losses arising from, among other situations, national emergency but rather the contrary. The commitment of the parties is to ensure that their respective investors do not lose out in such situations.” Nat’l Grid P.L.C. v. Argentine Republic, UNCITRAL Case 1:09-cv-

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712

In general policy terms, therefore, Article IV(3) shows the parties’ desire to grant investors higher rights than those under customary law. In particular, Article IV(3) reflects the parties’ desire to extend this endeavour during periods of emergency. Together, Articles II and X of the BIT provide specific treaty-based evidence that the rules of general international law are to be considered as “context” in the interpretation of the BIT in general, including Article XI. In contrast, Article IV indicates that during periods of emergency, the Treaty will grant broader protection for the investor covered by the treaty than the general rules. Comparing Article IV with Article XI shows that all Article XI does is not exclude certain measures taken by the host state during a period of emergency. Nowhere does the wording state that the non-preclusion of such measures should be read as tantamount to elimination of customary international law’s protection for the foreign investor. Indeed, since customary international law is the sphere of rules deemed generally applicable to all investors, the concept of non-preclusion of certain measures is, in its nature, certainly not identical to the suggestion of removing the investor from customary international law. To jump from the text of Article XI to such a different and radical conclusion would find no support in the wording of Article XI. In view of this particular setting of the BIT, it is appropriate to conclude that during extraordinary periods, such as those addressed in Article XI of the BIT, general rules of international law will serve as the floor of the degree of protection, possibly modified in favor of a higher degree of protection. In contrast, this setting will clearly speak against any attempt to interpret Article XI in a manner that would grant less protection to the investor covered by the BIT than do the rules of general international law. The BIT’s object and purpose, and especially the context of Article XI, will stand in the way of such a lowering of the standard. VII. The History of Article XI Apparently, no minutes or documents pertaining to the negotiations of the BIT are available. It will be recalled, however, that Article XI stems nearly verbatim from the U.S. Model Treaty issued in 1984. This affinity between the BIT and the U.S. Model Treaty must be taken into account in the interpretation in the sense that, as regards Article XI, the intentions pursued by the U.S. with the inclusion of the provision must not be disregarded. Had Argentina disagreed with the U.S. positions regarding the substance of Article XI, a wording different from the one in the U.S. Model Treaty would have been negotiated. VIII. Rules of General International Law as a Floor of Protection Looking at the components of interpretation of Article XI prescribed by the rules of treaty interpretation, it is obvious that the BIT’s object and purpose cautions against any view that would seriously affect the protection of the investor by compromising 00248-RBW, ¶ 252 (Nov. 3, 2008) (Award), available at http://ita.law.uvic.ca/documents/ NGvArgentina.pdf.

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the guarantees provided under the BIT. More specifically, the context of Article XI establishes that the protection extended by the BIT is either higher than or identical to the protection under general international law, but it is never below the level of these rules. In addition, the history of Article XI, with its wording substantially stemming from the U.S. Model Treaty, also indicates that the protection under Article XI must not fall below the level of general international law, given that U.S. policy at the time was to strengthen the rules of general international law. IX. Interpreting Article XI: Four Diverse Viewpoints Having thus established the appropriate parameters for the method of interpretation of Article XI, it is now appropriate to turn to specific issues raised by the text of Article XI. Given that the construction of Article XI has in practice already been subject to a wide-ranging diversity of views, it will be convenient here to address these views in the light of the principle of interpretation established above. Essentially, four different viewpoints will have to be considered in the analysis of this segment of Article XI. Broadly speaking, a basic divergence exists between those decisions and voices that, on the one hand, rely on the construction of the terms in the light of the rules of customary law that pertain to extraordinary periods or events, and those, on the other hand, that base their understanding of Article XI on the rules of international trade law.Among those approaches establishing their positions in relation to the rules of customary law, three different routes of argumentation may be distinguished. On one end of the spectrum, it may be assumed that the rules regarding necessity are by their very nature inapplicable within a treaty regime designed for the long-term protection of interests covered by the treaty. On the other end stands the argument that the BIT must be seen as a lex specialis and that its construction may even lead to a result that grants a lesser degree of protection to the foreign investor than do the rules of customary law. In between these two viewpoints has emerged the position that the terms of Article XI under consideration must be understood as rephrasing the substance of existing customary law, and therefore must be interpreted as giving expression to the current state of the customary rules on necessity as a floor of protection. The view that rules on necessity have no place within a BIT may arguably rest on the unmistakable tension between the object and purpose of such a treaty and the purpose of the rule on necessity to safeguard the state’s interests by way of reducing the investor’s protection. The potential tension between certain types of treaties and the rule on necessity is far from novel. Thus, the International Law Commission’s (ILC) Articles on State Responsibility provide, in Article 25(2)(a), that the rule on necessity may not be invoked if “the international obligation in question excludes the possibility of invoking necessity”18.

18

The ILC’s Articles on State Responsibility recognizes that this quality of a treaty may be implicit and that the object and purpose of the treaty will be the decisive criterion. See

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714

In the context of a BIT, the purpose is to provide protection to the investor so that long-term projects remain manageable and calculable. If the BIT does not apply in periods of unrest and instability, as they may occur periodically, the investor’s business plan may be eviscerated and the BIT’s purpose frustrated. In fact, this danger will plausibly explain why most existing treaties refrain from including an emergency clause, so as to avoid any suggestion that the intended protection of the investor may be questioned and interrupted. This line of reasoning appears to be reasonable and convincing as long as it is assumed that the consequences of an emergency must be borne by the investor. This is not, however, the correct position on the state of the law. Furthermore, as long as it is recognized that the host state, and not the investor, will cover the costs following from the host state’s measures, and as long as the rule on emergency is construed in a narrow manner, it appears difficult to argue that the purpose of an investment agreement is frustrated by the recognition that the customary rule of necessity may apply in the context of a BIT. A second, very different point of view will also argue that, as lex specialis, the BIT excludes the application of general international law. This second view, however, draws a very different conclusion from this starting point and argues that Article XI may lead to a result that is not more, but rather less, favorable to the investor than the general rules of international law. Essentially, the decision of the ad hoc Committee in CMS Gas Transmission Co. v. Argentine Republic follows this route.19 The underlying assumption in the decision is that Article XI of the BIT is drafted in a different manner than Article 25 of the ILC Articles. The Committee supports its view by assuming that the requirements laid out in the two provisions are not identical. Without any elaboration or reference to jurisprudence, the Committee simply states a position on this point: Article XI and Article 25 are substantively different. The first covers measures necessary for the maintenance of public order or the protection of each Party’s own essential security interests, without qualifying such measures. The second subordinates the state of necessity to four conditions. It requires for instance that the action taken “does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole”, a condition which is foreign to Article XI. In other terms the requirements under Article XI are not the same as those under customary international law as codified by Article 25, as the Parties in fact recognized during the hearing before the Committee. On that point, the Tribunal made a manifest error of law.20

The clear implication of this passage is that Article XI should be construed in a way that grants less protection to the investor than customary international law. The Tri-

19 20

James Crawford, The International Law Commission’s Articles on State Responsibility 185 (2002). CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, ¶ 130 (Sept. 25, 2007) (Decision on Application for Annulment). Id. (footnotes omitted).

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bunal in no way takes note of the requirement that the BIT should strengthen the investor’s protection.21 The point of interest here is not a broad review of the Annulment Decision, but a much more limited examination of the relationship between Article XI of the BIT and the rules of customary law. The only conclusion here is that the decision of the Annulment Committee cannot be taken as authority for this question. Of course, identifying a deficiency in that decision does not answer the substantive question under consideration: is it plausible to read Article XI in a manner that departs from the rules of customary law so that the investor receives less protection under Article XI than he would have enjoyed in the absence of the BIT? In considering this question, it will be recalled initially that the content of the Argentina-U.S. BIT is largely identical to that of the 1984 U.S. Model Treaty. In other words, the entire regime, design, and the intentions pursued by the BIT should not be understood in a manner contrary to the views held at the time of the negotiations by the U.S. Government. In this regard, it must again be noted that the purpose of the U.S. program underlying the 1987 Model BIT (on which the Argentina-U.S. BIT was patterned) was to strengthen the rules of customary law. Returning to the appropriate principles of interpretation applicable to Article XI discussed above, it is anticlimactic to return to the question whether an article such as Article XI, or any article in the BIT, should be interpreted so as to reduce the protection of the investors below the level of customary law. The straightforward conclusion is that the will of the parties in every respect speaks against the assumption that Article XI was meant to lower the protection that the investor enjoyed before the BIT was concluded. In every respect, a different approach would be alien to the very foundations of the BIT’s regime. The conclusion that Article XI should be construed so that it incorporates the general rule of international law as a floor on necessity is not contradicted by a comparison of the wording of Article XI with the rule on necessity laid down in Article 25 of the ILC Articles on State Responsibility. As regards the specific wording of Article XI, it will be recalled that the negotiations took place before the adoption in 1991. At that point, the ILC dealt with the matter in the context of state responsibility, but was far from the point of adopting the content, let alone the text, which it adopted a de-

21

It is also remarkable to note the difference in the reasoning in paragraphs 130 and 131 of the Annulment Decision. While in paragraph 130 the Committee finds that the Tribunal’s interpretation was erroneous in terms of the result (that is, that the Tribunal should have concluded that Article 11 of the BIT was different in content from Article 25 of the ILC Rules), paragraph 131 finds that the Tribunal was in error because it failed to analyze the relationship between the two provisions. Needles to say, the statements in paragraphs 130 and 131 are inconsistent. Either it is true that the interpretation given by the Tribunal was wrong (that is, that Article XI is different), or it is true that the interpretation must be seen as open and the error consists in the lack of an analysis of the relationship between the two norms. Only one of the two propositions can be correct, even though they stand next to each other in the Committee’s Decision.

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cade later. Generally, the state of the law was settled much less than is the case today. Details concerning the conditions for a state of necessity remained vague.22 The relevant question here is whether the general purpose of Article XI is consistent with the general confines of the concept of necessity as it was under discussion around 1990. The pertinent comparison will indicate a parallel content in nature and substance. In both documents, the central concern is that under extraordinary circumstances affecting the stability of the host state’s order, the host state is granted broader powers to take remedial action affecting interests of foreign nationals than is the case during normal times, so as to allow the host state more latitude for an effective response. As regards the purposes of both Article XI and the BIT in general, no discrepancy arises when Article XI is understood so as to reflect the general rules of international law. Indeed, as has been pointed out earlier, difficulties would arise if it would be assumed that, in comparison to customary law, a lower level of protection had been introduced in Article XI. The most appropriate way to do justice to the intentions of the BIT as expressed in the wording of Article XI, in the purpose of the BIT and in the context of Article XI, is to read and interpret it in the light of the general rules of international law embodied in the current understanding of the state of necessity. Treatment of the foreign investor must not fall below the floor set by the rules of customary law and may be higher if the text so requires. Turning to the fourth viewpoint of Article XI, it is appropriate to turn here to a special view of the provision that has been expressed in Continental Casualty Co. v. Argentine Republic.23 The award in this case is based on the view that Article XI should be interpreted by way of following the jurisprudence on international trade law as opposed to investment law. The Tribunal begins its analysis, without further explanation, by stating, “The Tribunal will therefore focus on the analysis of Article XI and the conditions of its application, referring to the customary rule on state of necessity … only insofar as the concept there used assists in the interpretation of Article XI itself.”24 In the following parts, the Tribunal indeed discusses the content of customary law at some points. The award, however, nowhere clarifies why customary law will be applicable in some areas but not in others. Thus, the award suffers from an internal contradiction that affects its persuasive authority. More fundamentally, the award nowhere offers a plausible explanation as to why precedents of trade law rather than investment law should serve as a guide to Article XI of the BIT. Along the same lines, the Tribunal nowhere recognizes that Articles XX and XXI are built on terms and concepts that find no parallel in the ArgentinaU.S. BIT. The Tribunal simply reads concepts of trade law into Article XI, ignoring that investment law and trade law are not based on analogous issues and principles.25 22 23 24 25

For the history of the ILC Articles, see Crawford, supra note 18. Continental Casualty Co. v Argentine Republic, ICSID Case No. ARB/03/9 (Feb. 22, 2006) (Decision on Jurisdiction). Id. ¶ 168. See Dolzer & Schreuer, supra note 5, at 184.

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Rudolf Dolzer, Emergency Clauses in Investment Treaties: Four Versions

As pointed out by the tribunal in Methanex Corp. v. United States26 (of which Professor Reisman was a member), trade law and investment law are not based on identical regulatory patterns and must therefore not be considered interchangeable. States have therefore not merged the two areas of law into one conglomerate body. When the two areas are both negotiated in free trade agreements, as is recent practice, they are treated in different chapters with different rules, including different approaches to dispute settlement. Against this background of different purposes, structures, and rules, it must be presumed that rules in one area should not be understood in the same way as they have existed in the other area. The reasoning of the award in Continental Casualty is not persuasive because it fails to recognize these differences. X. Balancing Interests in the Context of Necessity At the end of these considerations concerning the interpretation and application of Article XI, some remarks may be added as regards the difficult policy choices facing the drafters of investment treaties when considering matters of emergency in an investment treaty. Obviously, a decision for one or the other approach or version will involve sensitive considerations pertaining to the balance of stability and flexibility of a treaty regime, based on experience in international dispute settlement and on expectations concerning future developments and policies pursued at the domestic level, both at home and in the legal order of the contracting partner. In general, the object and purpose of an investment treaty, being the stability and protection of long-term projects, will caution against a clause that opens the door for the host state to escape from its treaty obligations as soon as difficulties appear on the horizon, be they economic or political. One does not have to go so far as concluding that a broad escape clause will in practice undermine the very foundations of an investment treaty as an instrument of agreed stability. But it cannot be overlooked that, as pointed out earlier, a serious tension exists between the potential use (or abuse) of a broad escape clause and the concern for long-term stability underlying investment agreements. The century-old experience of the international community embodied in customary law pertaining to the role of necessity and the need for stability of binding agreements carries obvious lessons, particularly for a treaty regime meant to provide stability. The balance of interests underlying the rules of customary law represents a compromise between competing interests, safeguarding in an adequate manner the fundamental role of treaties for international relations. To shift this traditional balance of interest toward a point allowing a lesser role for treaties, be it as a matter of treaty-drafting or treaty-interpretation, is a serious matter of policy, for all areas of international law, but for investment treaties in particular. More thought must be given to this seemingly marginal topic before overturning century-old experience addressing interests of not just one partner to one treaty in a particular situation, but

26

Methanex Corp. v. United States, UNCITRAL (Aug. 5, 2005) (Award), available at http://www.state.gov/documents/organization/51052.pdf.

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also affecting the interests of the general international community in the role of treaties and of law in general.

Chapter 37 Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines: The Strange Persistence of a Martial Law Syndrome Florentino P. Feliciano*

I. Preliminary Considerations This article proposes to identify and address certain Philippine constitutional law problems that originated during the Martial Law period (1972-1986) which former President Ferdinand E. Marcos imposed upon the Philippines. These problems which lie in the zone of contact between constitutional law and trade law relate to certain consequences brought about by the disregard of constitutional standards and norms relating to the tariff system of the country. The consequences of these problems in the real world, their impact upon important sectors of the national economy, and the prospects of economic development of the Republic of the Philippines are dealt with by a colleague elsewhere.1 In this essay, we will observe and analyze constitutional mandates and policies which help shape the permissible strategies and courses of action available in trade law. It is widely known that the realities under which the application of trade law takes place have profound effects upon the application of constitutional principles and policies. It is much less widely known that certain measures taken by Mr. Marcos in 1978 during Martial Law in the internal public order have had structural consequences which persist today. Those measures continue to be invoked and utilized, largely unnoticed, more than two decades after the end of martial law in the Philippines.

*

1

This essay is based on the 2007 George A. Malcolm Lecture in Constitutional Law, University of the Philippines, delivered by the author. The permission granted by the Board of Trustees, Malcolm Fund, to submit this essay to the editors of this volume is gratefully acknowledged. Mr. Justice V.V. Mendoza, Associate Justice, Supreme Court of the Philippines (retired) and Professorial Lecturer in Law, U.P. and M.L.A. Sereno, Director, Policy Center, Asian Institute of Management and former Associate Professor of Law, U.P., read this essay and commented on it. The author is most grateful for their comments. The research assistance rendered by May Ann R. Rosales (B.A., M.A. – U.A.&P.; LL.B. – U.P.) is here recognized with appreciation. See Maria Lourdes A. Sereno, Impact of the Unilateral Tariff Reduction Program of the Philippines on its Flexibility in Trade Negotiations and Industrial Policy (2007) (unpublished manuscript).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 719-740.

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II. The Delegated Tariff-Setting Power of the President— A Limited Legislative Power

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We begin by noting that the power to establish, modify and terminate tariff rates— including import and export quotas, tonnage and wharfage dues, and other duties and charges—is essentially legislative in nature. The 1987 Constitution of the Philippines, like the constitutions of many other sovereign states, distributes and allocates governmental powers and functions among the three major institutions of government: the Legislative Department (Article VI), the Executive Department (Article VII), and the Judicial Department (Article VIII).2 Article VI, Section 1 of the Constitution begins by stating that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.” Certain types of legislation are required to originate not just from the Legislative Department but from a particular component House of that Department. Thus, Article VI, Section 24 prescribes that “all appropriation, revenue, and tariff bills” as well as “bills authorizing increase of the public debt” shall “originate exclusively in the House of Representatives.” However, the other House of Congress, i.e. the Senate—may propose or concur with amendments to such types of bills. The authority of the Executive Department in respect of tariff bills (as well as appropriation and revenue bills) enacted into law by the Legislative Department is generally limited to vetoing a particular item or items of the statute establishing or revising tariff rates.3 The item veto power of the President in respect of tariff bills is confined to the particular item objected to by the President. Items to which he does not object are specifically saved from the consequences of an exercise of the presidential item veto power. The power to enact legislation fixing or revising tariff rates, import and export quotas, tonnage and wharfage, and other dues and impositions is thus clearly lodged by the Constitution in the Legislative Department. Nevertheless, there is express constitutional authorization to Congress to delegate exercise of this power to the President, subject however, to certain limitations and restrictions. Article VI, Section 28(2) of the Constitution sets out this authorization in the following terms: The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

This constitutional authorization to Congress to delegate some of its own powers and functions to the President in respect of the setting and modification of tariff rates, 2

3

Unless otherwise indicated, references to the Constitution of the Philippines are to the Constitution adopted by the people of the Philippines in a plebiscite held on February 2, 1987 and hereafter referred to as the 1987 Constitution of the Philippines. 1987 Const. art. VI, § 27 (2).

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

quotas, and other duties and impositions, is not unlimited. To the contrary, examination of this authorization reveals that it is subject to certain important limitations and restrictions. Analysis of this authority may be carried out on at least two levels. The first level relates to textuality, that is to say, the language actually utilized by the Constitution in authorizing Congress to delegate exercise of the power to set or revise tariff rates. The second level is concerned with general limitations which flow from the essentially legislative nature of the power to fix and modify tariff rates. We examine first the actual language employed by the Constitution. The relevant provision states that: “[t]he Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts … .” The provision stresses that it is Congress itself that must decide whether or not, or to what extent, it will delegate to the President the power to fix or revise tariff rates, import and export quotas, and so on. The Constitution withholds that power from the President. It follows that, constitutionally, the President has no power or authority to order that Congress delegate that power to set or revise tariff rates to him. The power to decide here is vested in Congress itself. The constitutional provision requires Congress—should it in fact decide to delegate to the President authority to establish or revise tariff rates—to set out “specified limits” and “such limitations and restrictions as it may impose” on the power delegated to the President and on that exercise of that power. It appears entirely clear therefore that Article VI, Section 28(2) of the Constitution does not contemplate that the delegation of power to the President to fix and modify tariff rates is either plenary or permanent. The determination of the substantive contents of the “limits” of, and the “limitations and restrictions” on, the authority delegated to the President is a power and function that is not delegable to the President. To suppose that such determination may be left to the President as delegate, is to reduce those “limitations and restrictions” to inutility and redundancy. The permission to Congress to delegate found in Article VI, Section 28(2) is not a permission or authority to Congress to abandon the power clearly lodged in it in the first instance. It is not, in other words, an authority to Congress to divest itself of a significant portion of its sovereign legislative power. It is, still further, not a license to the President to take over that power and keep it for himself or herself for an unlimited or unspecified period of time. There is another category of limitation and restriction on the delegated authority which is referred to textually in Article VI, Section 28(2): the establishment of tariff rates, import and export quotas, and other duties and imposts must be done “within the framework of the national development program of the Government.” The strong inference arising from this language is that the President, by wielding his delegated power to fix or revise tariff rates, may not drastically redo or revise the “framework of the national development program of the Government.” This limitation is new for it is not found in the versions of Article VI, Section 28(2) that existed in the 1935 nor in the 1973 Constitution. Further, there appears no single statute or code setting out a comprehensive social and economic development program for the Republic of the Philippines. In this situation, it seems of particular importance to stress that the Constitution itself states, albeit in language of high abstraction and generality, certain basic goals

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of national, social, and economic development programs of the Government. Article XII, Section 1 of the Constitution outlines these goals in the following terms: The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. (Emphasis added.)

It is also important to note that the formulation and articulation of the “national development program of the Government” is specified in the Constitution as a power and function vested in the Legislative Department. Thus, Article XII, Section 9 of the Constitution states that: The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the Government. (Emphasis added.)

The basic thrust of the textual limitations may thus be seen to be that the exercises of power by the President under a delegation of power by Congress under Article VI, Section 28(2) of the Constitution must be consistent with the pluralistic, multisectoral “framework” of the national development program or programs adopted by Congress. The extent to which this limitation may be substantial and not merely notional may be expected to depend on, among other things, the existence of a fairly detailed and comprehensive national development program prescribed in statutory form by Congress. Such a program has yet, however, to be formulated, considered and adopted by Congress. We turn to a second level of analysis of the requirements of Article VI, Section 28(2) of the Constitution. The principal reference here is to the widely known principle of democratic government designated as the separation of powers and the institution of checks and balances.4 We earlier referred to this principle in noting the 4

Government v. Springer, 50 Phil 259 (1927); Angara v. Electoral Commission, 63 Phil 139 (1936); In re Lansang v. Garcia, 42 SCRA 448 (1971); Scott v. Inciong, 160-A Phil 1107, 68

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

distribution of the powers and functions of Government among three major departments of Government: the Legislative, the Executive, and the Judicial Departments. It is commonly understood that the allocation of these powers among the three major departments of Government is indispensable if a government is to be or to remain a democratic and representative government.5 Most simply put, a government which, instead of separating and distributing the functions and powers of government among several departments, consolidates and concentrates those powers and functions into one department, is the antithesis of a government of limited powers. It is of course also frequently argued that the principle of separation of powers is not an absolute and immutable principle, like principles of mathematics. Because the separation principle is to be applied in the world of men and women by institutions staffed by human beings, that principle must contain in itself a certain amount of flexibility if it is to survive in a world marked by a high degree of change and development. For this reason, among others, the principle of separation of powers is widely held to be consistent with the competing principle that legislative power may be delegated by the original repository of that power, as the requirements of evolving time and circumstances may demand.6 Delegation of legislative power, if it is to remain consistent with the principle of separation of powers, must, however, be circumscribed by limitations. Those limitations may be limitations ratione materiae, limitations ratione temporis, or limitations ratione personae. Unlimited or permanent delegation amounts to abandonment by the original locus of that power. Unlimited or permanent delegation is simply and fundamentally repugnant to and inconsistent with the principle of separation of powers and the republican nature of the Philippine constitutional system. All authorizations for delegation of power by the Legislative Department are subject to express or implied limitations found in the Constitution itself. Delegation of power to the President by the Congress “in times of war or other national emergency” is perhaps the best known of this species of constitutional permission.7 Article XI, Section 23(2) of the Constitution sets forth this permission to Congress:

5

6

7

SCRA 473 (1975); In re Laureta, 232 Phil 353, 148 SCRA 382 (1987); Bengzon v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991); In re Neri v. Senate Committee on Accountability of Public Officers and Investigations, 549 SCRA 77 (2008). The Federalist Papers No. 47 (James Madison); Abueva v. Wood, 45 Phil 612 (1924); Angara v. Electoral Commission, 63 Phil 139 (1936); Rodriguez v. Gella, 92 Phil 603 (1953); Kilosbayan, Inc. v. Guingona, 232 SCRA 110 (1994); Macalintal v. COMELEC, 405 SCRA 614 (2003); Lambino v. COMELEC, 505 SCRA 160 (2006). People v. Rosenthal, 68 Phil 328 (1939); Pangasinan Transportation Co., Inc. v. Public Service Commission, 70 Phil 221 (1940); Calalang v. Williams, 70 Phil 726 (1940); Echegaray v. Secretary of Justice 297 SCRA 754 (1998); Equi-Asia Placement, Inc. v. Department of Foreign Affairs, 502 SCRA 295 (2006); Gerochi v. Department of Energy 527 SCRA 696 (2007); Soriano v. Laguardia, G.R. Nos. 164785 & 165636, April 29, 2009. The constitutional limitations surrounding delegation of legislative power in times of war or other national emergency are dealt with in, for example, Araneta v. Dinglasan, 84 Phil 368 (1949); Rodriguez v. Gella, 92 Phil 603 (1953); Republic v. Court of Appeals, 359 Phil 530, 299 SCRA 199 (1998); and David v. Arroyo, 489 SCRA 160 (2006).

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In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Emphasis added.)

724

The principal limitations upon this delegated “war power” of the President are both substantive and mandatory in character: firstly, delegation may take place only in the most pressing of circumstances, such as war or “other national emergency.” Much like Article VI, Section 28(2), it is Congress that must decide whether an appropriate occasion for delegation of authority to the President has arisen. In such exigencies as war or “other national emergency,” Congress itself must impose the limitations upon the authority it delegates to the President: (1) the delegation must be limited in point of time and in point of substantive content, and (2) the powers delegated must be “necessary and proper” for the carrying out of an identified “national policy.” The limitations ratione temporis are independent of the will of the delegate—the President: the delegated powers terminate ex proprio vigore “upon the next adjournment of [Congress],” although they may expire sooner should Congress enact a new and separate resolution on the duration thereof.8 A second category of delegation by Congress of some power ordinarily vested in itself, expressly recognized in the Constitution, is said to be the delegation of power to the people at large to propose amendments to the Constitution. Amendments or revision of the Constitution may be proposed by Congress itself or by a constitutional convention called by Congress. A distinct mode of amendment is provided for in Article XVII, Section 2 which provides as follows: Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered votes therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. (Emphasis added.)

There has been some debate as to whether the power to initiate a process of amendment of the Constitution constitutes a delegation of constituent power, or whether it is in fact a reservation to the people of power that properly belongs to them and not originally granted to Congress. The more relevant point appears to be that the power of initiative itself is circumscribed by limitations expressly articulated in Article XVII, Section 2, not all of which are procedural. In Lambino v. Commission on

8

The limited period of effectiveness of the emergency powers delegated to the President is a fundamental basis of the decisions in Araneta and Rodriguez.

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

Elections,9 the Supreme Court discussed at great length the limitation imposed upon exercise by the electorate itself of this power to initiate a process of amendment (but not of revision) of the Constitution. Although in a loose sense the constituent power to amend or revise the Constitution might be considered as “legislative” in nature, it is not a power that is granted to Congress in the allocation of governmental powers and then delegated by it to the people. But if there is here a delegation at all of power by Congress to the people at large, it is certainly a limited delegation. Delegation by Congress of power and authority recognized as legislative in nature to local government units is expressly referred to in Article X, Section 5. Once more, however, the pertinent provision makes clear that the delegable power is a limited power and that Congress in effecting such delegation must specify such limitation. Article X, Section 5 provides as follows: Each local government unit shall have the power to create its own sources of revenues and to levy duties, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local government. (Emphasis added.)

In People v. Vera,10 the Supreme Court clarified that legislation creating municipalities “is not regarded as a transfer of general legislative power but rather as the grant of authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior, in cases of necessity.”11 Still another kind of permissible delegation by Congress of some portion of its sovereign legislative power is constituted by the delegation through an enabling statute of quasi-legislative power of the power of “subordinate legislation” to executive and administrative officials, for the crafting and promulgation of regulations to implement statutory objectives defined in the enabling statute itself. This particular species of permissible delegation is so well entrenched in constitutional law doctrine as not to have called for embodiment in an express provision of the Constitution.12 In this category of permissible delegation, the mechanism of restraint and limitation is built into the doctrine itself. What is said to be delegable is only the power to “implement” or “fill in the details” and not the power to determine the content of, or to revise, the legislative policy objective itself. The statute to be implemented must be “complete in itself ” so that the executive and legislative officials are said to be charged with the implementation merely of the statutory policy, and not with the determination of the shape and 9 10 11

12

505 SCRA 160 (2006). 65 Phil 56 (1937). 65 Phil 56, 113-14 (1937); see also Pepsi-Cola Bottling Company v. Municipality of Tanauan, 69 SCRA 460 (1976); Solicitor General v. Metropolitan Manila Authority, 204 SCRA 837 (1991). See, e.g., Edu v. Ericta, 35 SCRA 481 (1970); Bautista v. Juinio, 127 SCRA 329 (1984); Tablarin v. Gutierrez, 236 Phil 768, 152 SCRA 730 (1987); Echegaray v. Secretary of Justice 297 SCRA 754 (1998); Gerochi v. Department of Energy 527 SCRA 696 (2007); Abakada Guro Party List v. Purisima, 562 SCRA 251 (2008).

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content of the statutory goal or goals to be enforced. Whether or not these broadly cast classical judicial standards impose effective restraints upon the officials charged with their implementation and enforcement may be a matter for spirited debate. What is crystal clear, however, is that while the scope of and frequency of recourse to delegated subordinate legislation tend to grow as the needs of society multiply and become increasingly complex, the fundamental need for circumscribing the discretion delegated to executive and administrative officials continues to be recognized and insisted upon. It is also helpful to note the history of Article VI, Section 28(2) of the Constitution. This provision was not an invention of the 1986 Constitutional Commission created by President Corazon C. Aquino after the martial law regime of former President Ferdinand E. Marcos had come to an end. Even a cursory look into this history reveals a remarkable degree of consistency in the formulation and expression of the authorization to Congress to delegate the power to set tariff duties to the President. The 1935 Constitution of the Commonwealth of the Philippines—promulgated for the period when the Philippines remained a territory of the United States, although vested with a high degree of autonomy in respect of its internal affairs—provided in Article VI, Section 22(2) as follows: The Congress may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix, within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues. (Emphasis added.)

In the 1973 Constitution which was promulgated during the Martial Law regime invented by former President Marcos, Article VIII, Section 17(2) set out the same authorization to the Batasang Pambansa (the national legislature) to delegate to the President its authority to exercise its tariff-setting power: The Batasang Pambansa may by law authorize the President to fix within specified limits, and subject to such limitations and restrictions at it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts. (Emphasis added.)

The close similarity of the pertinent provision of the Martial Law Constitution of Mr. Marcos, both to the provision of the 1935 Constitution of the Commonwealth of the Philippines and to the subsequent 1987 Constitution of the Republic of the Philippines, is noteworthy. That similarity was not merely inadvertent. The 1987 postmartial law provision may be quoted once more: The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (Emphasis added.)

The constitutional limitations, which emerge from both textual examination of Article VI, Section 28(2) of the 1987 Constitution and its counterpart provisions in the 1935 and 1973 Constitutions, and from consideration of the other instances of express

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

permission in the same 1987 Constitution to the Legislative Department to delegate a portion of its legislative power to the President, may be outlined in the following terms. That power to delegate is: – a power that belongs to Congress itself: whether or not delegation is to take place and, if so, the extent thereof, is to be determined by Congress alone; – the substantive scope of the power delegated is to be prescribed by Congress alone and not by the President who as delegate must act within the limits established by the delegating authority; – the power delegated does not, by the fact of its delegation to the President, cease to be a legislative power. As such, it belongs fundamentally and properly to the Legislative Department of Government. This constitutional permission to delegate tariff-fixing power to the President is not a power to impose structural, that is, permanent, changes in the distribution of the fundamental powers of Government among the major Departments; – like all other constitutional permissions to the Legislative Department to delegate a portion of its lawmaking power, the tariff-setting authority so delegated must be circumscribed by limitations: limitations ratione materiae, limitations ratione temporis or limitations ratione personae. It is scarcely necessary to stress that the appropriate exercise of the power to fix tariff rates is of high importance for the charting of the economic course of the country and accordingly for the economic development of the Republic. It is not only the power to control access to the internal market of the Republic; it is also an essential bargaining mechanism in negotiations for securing access to the markets of other countries for the exports of the Republic. It is, moreover, effectively a power to determine which sectors are to be allowed to slide into the oblivion of bankruptcy, or to be encouraged to survive and improve their competitiveness and productivity. III. Congressional Exercise of the Constitutional Permission to Delegate TariffSetting Powers to the President: Republic Act No. 1937, the Pre-Martial Law Tariff and Customs Code of 1957 A. Section 401, Tariff and Customs Code of 1957 In the course of enacting the Tariff and Customs Code of 1957 (hereinafter 1957 Code), the Congress of the Philippines wielded for the first time its power to delegate tariff-fixing authority to the President. Two provisions of this 1957 Code are of particular importance in this connection. Section 401 of the 1957 Code—frequently called the “Flexible Tariff Clause”—represents the first and still the only exercise by Congress of its power to delegate tariff-fixing authority to the President. The relevant portions of Section 401 read: a.

The President, upon investigation by the Commission and recommendation of the National Economic Council, is hereby empowered to reduce by not more than fifty per cent or to increase by not more than five times the rates of import duty expressly fixed

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c. d.

… g. h. i.

by statute (including any necessary change in classification) when in his judgment such modification in the rates of import duty is necessary in the interest of national economy, general welfare and/or national defense. Before any recommendation is submitted to the President by the Council pursuant to the provisions of this section, the Commission shall conduct an investigation in the course of which it shall hold public hearings wherein interested parties shall be afforded reasonable opportunity to be present, to produce evidence and to be heard. The Commission may also request the views and recommendations of any government office, agency or instrumentality, and such office, agency or instrumentality shall cooperate fully with the Commission. The President shall have no authority to transfer articles from the duty-free list to the dutiable list nor from the dutiable list to the duty-free list of the tariff. The power of the President to increase or decrease rates of import duty within the limits fixed in subsection “a” shall include the authority to modify the form of duty. In modifying the form of duty the corresponding ad valorem or specific equivalents of the duty with respect to imports from the principal competing foreign country for the most recent representative period shall be used as basis. Any order issued by the President pursuant to the provisions of this section shall take effect thirty days after its issuance. The provisions of this section shall not apply to any article the importation of which into the Philippines is or may be governed by Section 402 of this Code. The authority herein granted to the President shall be exercised only when Congress is not in session. (Emphasis added.)

The limitations on the exercise by the President of the power delegated to him are of two kinds: substantive limitations relating to the extent to which pre-existing tariff rates could lawfully be modified by the President thereunder; and procedural limitations to be observed by the President and officials under his supervision and control in the process of exercising the delegated tariff-fixing authority. 1. Substantive Limitations The substantive limitations imposed by Section 401 are specific limitations on the extent to which pre-existing tariff rates could be revised by the president. Firstly, Section 401 set a floor below which no tariff rate could be reduced or dropped: the tariff rate may not be reduced by more than 50 of the import duty rate fixed in the statute (the Most Favored Nation (hereinafter MFN) rates established in Section 104 of the 1957 Code). Secondly, Section 401 established a ceiling on permissible increases of import duty tariffs at not more than five times (i.e. 500) the relevant MFN import duty rate fixed under Section 104 of the 1957 Code. A second substantive limitation established in Section 401 requires the President, in effecting revisions in the rates of import duties, to have determined that such revision “is necessary in the interest of national economy, general welfare and/or national defense.” In itself, the limitative clause may not seem a robust limitation. This clause, however, must be taken in conjunction with the requirement, noted below, of certain

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

findings having been made by the Tariff Commission and recommendations by the National Economic Council. Cast in somewhat different terms, findings by the Tariff Commission and the recommendations by the National Economic Council must sustain the actions of the President as “necessary,” in terms of consequences for the “national economy, general welfare and/or national defense.” A third substantive limitation imposed on the President was that the President has no authority to transfer articles from the “duty-free list” to the “dutiable list,” nor any authority to transfer items from the “dutiable list” to the “duty-free list,” of the Tariff and Customs Code. Reading “duty-free list” as goods with 0 import tariff duty rate, this limitation may be seen to be consistent with the floor and ceiling rates set in Section 401. 2. Procedural Limitations Other limitations, which might be called procedural in nature, were also established by Section 401 of the 1957 Code. Thus, prior to modification by the President of any tariff rate, inquiry or investigation by the Tariff Commission must have been carried out of the “necessity” of the proposed revised tariff rates.13 Such investigation must have included a public hearing where parties, public or private, affected by the proposed tariff changes are given an effective opportunity to present their views and positions, to produce evidence for or against the proposed modified tariff rate, and to be heard. It is submitted that the right to be heard of affected parties in this connection was intended to be a meaningful right, a right to have their views considered and taken into account, a right that goes beyond the submission of “position papers” which are then duly stored and preserved in the desk drawers of bureaucrats.14 A second requirement is a recommendation by the National Economic Council that sustains the “necessity” of the revised tariff rates, considered from comprehensive perspectives that we call national interest.

13 14

See Southern Cross Cement Corp. v. Cement Manufacturers Association of the Philippines, 465 SCRA 532 (2005). In Ang Tibay v. Court of Industrial Relations, 69 Phil 635 (1940), the cardinal primary rights which must be respected even in administrative proceedings are the following: (1) the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof; (2) the tribunal must consider the evidence presented; (3) the tribunal must have something to support its decision; (4) the evidence must be substantial; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision; and (7) the board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. See also Commissioner of Internal Revenue v. Court of Appeals, 257 SCRA 200 (1996); Globe Telecom, Inc. v. National Telecommunications Commission, 435 SCRA 110 (2004); Solid Homes v. Laserna, 550 SCRA 613 (2008).

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Procedural limitations include time limitations—limitations ratione temporis—on the exercise by the President of his delegated power to modify tariff rates. Thus, any order issued by the President under Section 401 of the 1957 Code may take effect, not immediately, but on the 30th day after issuance thereof. More importantly, the delegated power cannot be exercised while Congress is in session. That is to say, the delegated power may be exercised by the President only while Congress is not in session. The evident purpose of this limitation is to avoid the concurrent or parallel or countervailing exercise of legislative power by Congress on the one hand and the President on the other hand in respect of tariff rates. Further, this time limitation gives Congress the opportunity to take back its delegated authority, or to modify the limitative provisions in that delegation, and even to modify the tariff rates prescribed by the President in exercise of his delegated power. The limitation ratione temporis is far from a meaningless limitation. B. Section 402, Tariff and Customs Code of 1957: The Trade Agreement Clause The 1957 Code authorized the President to establish or modify tariff rates by two modes: first, by the issuance of executive orders under Section 401, dealt with above; and second, by entering into executive agreements with other countries. The use of executive agreements is authorized in Section 402 of the 1957 Code, the relevant terms of which are as follows: a.

b.

For the purpose of expanding foreign markets for Philippine products as a means of assisting in the economic development of the country, in overcoming domestic unemployment, in increasing the purchasing power of the Philippine peso, and in establishing and maintaining better relationships between the Philippines and other countries, the President, upon investigation by the Commission and recommendation of the National Economic Council, is authorized from time to time: (1) To enter into trade agreements with foreign governments or instrumentalities thereof; and (2) To modify import duties (including any necessary change in classification) and other import restrictions, as are required or appropriate to carry out and promote foreign trade with other countries: Provided, however, That in modifying import duties no increase shall exceed by five times nor the decrease be more than fifty per cent of the rate of duty expressly fixed by this Code. The proclaimed duties and other import restrictions shall apply to articles the growth, produce or manufacture of all foreign countries, whether imported directly or indirectly: Provided, That the President may suspend the application of any concession to articles the growth, produce or manufacture of any country because of its discriminatory treatment of Philippine commerce or because of other acts (including the operations of international cartels) or policies which in his opinion tend to defeat the purposes set in this section; and the proclaimed duties and other import restrictions shall be in force and effect from and after such time as is specified in the proclamation. The President may at any time terminate any such proclamation in whole or in part.

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

c.

d.

e.

f.

Every trade agreement concluded pursuant to this section shall be subject to termination upon due notice to the foreign government concerned at the end of not more than five years from the date on which the agreement comes into force and, if not then terminated, shall be subject to termination thereafter upon not more than six months’ notice. The authority of the President to enter into trade agreements under this section shall terminate on the expiration of five years from the date of enactment of this Code: Provided, That trade agreements concluded pursuant to the provisions of this section and subsisting as of the date of the expiration of this authority shall remain in full force for the period fixed in the agreement [in] and may not be extended but may sooner be terminated in accordance with the preceding subsection. Nothing in this section shall be construed to give any authority to cancel or reduce in any manner any of the indebtedness of any foreign country to the Philippines or any claim of the Philippines against any foreign country. Before any trade agreement is conducted with any foreign government or instrumentality thereof, reasonable public notice of the intention to negotiate an agreement with such a government or instrumentality shall be given in order that any interested person may have an opportunity to present his views to the Commission which shall seek information and advice from the Department of Agriculture and Natural Resources, the Department of Commerce and Industry, the Central Bank of the Philippines and from such other sources as it may deem appropriate. … (Emphasis added.)

Section 402 of the 1957 Code, known as the “Trade Agreement Clause,” authorized the President to enter into trade agreements with foreign countries, subject, once more, to certain substantive, procedural and other related limitations.15 The substantive limitations on the power to agree with foreign countries to modify tariff rates and other restrictions are substantially the same as those established upon the delegated power of the President to issue executive orders modifying tariff rates under Section 401. The MFN rates set out in Section 104 of the 1957 Code could be increased by a trade agreement to the maximum extent of 500, while the maximum decrease of those same MFN rates was set at 50 of those rates. It will be noted that these are the same floor and the same ceiling on revised tariff rates established by Congress in Section 401. The procedural limitations applicable in respect of executive orders under Section 401 of the 1957 Code were also applicable in respect of executive trade agreements entered into by the President pursuant to Section 402 of the 1957 Code. Thus, prior notice of intent to negotiate a trade agreement with a foreign state must be published by the President. A public hearing where private sector parties that may be affected by any proposed revised tariff rates are given the opportunity to present their views must be held by the Philippine Tariff Commission. The Tariff Commission itself is required to seek information and advice from executive departments whose respective sectors may be expected to be affected: the Department of Agriculture and Natural Resources, the Department of Trade and Industry, the Central Bank of the Philippines, and so on. A substantive legislative standard was also set out in Section 402 15

Akbayan v. Aquino, 558 SCRA 468 (2008).

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732

of the 1957 Code. The trade agreement must have for its purpose the expansion of foreign markets for Philippine products “as a means of assisting in the economic development of the country, in overcoming domestic unemployment, and increasing the purchasing power of the Philippine peso.” Limitations ratione temporis on the exercise of power by the President to enter into executive trade agreements were also established. The authority of the President under Section 402 had a terminal date: upon expiration of five (5) years from the date of enactment of the 1957 Code, no additional trade agreement could be negotiated and concluded. The presidential authority under Section 402 thus would have expired under its own terms in 1962.16 Further, the trade agreements entered into by the President under Section 402 had limited life spans. Such a trade agreement was subject to termination by the Philippines at the end of not more than five years from the date on which it came into force. If such trade agreement was not so terminated, it could nevertheless be terminated thereafter by the Philippines upon not more than six months’ notice to the other state party thereto. IV. Deconstruction During Martial Law of Sections 401 and 402 of the 1957 Code—Presidential Decree No. 1464 as Amended, the Tariff and Customs Code of 1978 Martial law was imposed in the Philippines in September 1972 by former President Marcos. Five years later, on December 21, 1977, Mr. Marcos began the process of deconstructing Sections 401 and 402 of the pre-martial law 1957 Code. In his first decree amending Section 402 of the 1957 Code, Mr. Marcos was relatively restrained. He issued Presidential Decree No. 1268 (hereinafter P.D. 1268) amending Section 402 but not Section 401 of the 1957 Code, and then only in respect of the tariff adjustments called for by the Agreement on ASEAN Preferential Trading Arrangement ratified by the Philippines a few months later.17 Section 402, as first amended by Mr. Marcos, read as follows: a.

16

17

For the purpose of expanding foreign markets for Philippine products as a means of assistance in the economic development of the country, in overcoming domestic unemployment, in increasing the purchasing power of the Philippine peso, and in establishing and maintaining better relations between the Philippines and other countries, the President is authorized from time to time: (1) To enter into trade agreements with foreign governments or instrumentalities thereof;

See however the Agreement on the Common Effective Preferential Tariff (CEPT) Scheme for the ASEAN Free Trade Area (AFTA) (1992), and the Framework Agreement on Comprehensive Economic Cooperation between ASEAN and China (2002); both these agreements were entered into by the Philippines purportedly under the authority of Section 402 of the 1978 Code. Pres. Dec. No. 1268 (1977).

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

(2)

To modify import duties (including any necessary change in classification) and other import restrictions, as are required or appropriate to carry out and promote foreign trade with other countries: Provided, however, that in modifying import duties or fixing import quota[s] the requirements prescribed in subsection “a” of Section 401 shall be observed: Provided, further, That any modification of import duties and any fixing of import quotas made pursuant to the agreement on ASEAN preferential trading arrangements ratified on August 1, 1977 shall not be subject to the limitations of the aforesaid subsection “A” of Section 401. (Emphasis added.)

It is important to observe that in issuing P.D. 1268, Mr. Marcos did not purport to exercise the power delegated to him by Section 402 of the 1957 Code. He did not purport to act as the delegate of the Congress contemplated in Article VIII, Section 17(2) of the 1973 Constitution (the martial law counterpart provision of Article VI, Section 28(2) of the 1987 Constitution). Mr. Marcos instead in effect acted as the delegating authority; he purported to exercise legislative power which he had unilaterally taken over from Congress when he declared martial law in the Philippines on September 21, 1972. In so acting, Mr. Marcos also delegated to himself as President the tariffsetting power that he was at the same time enlarging considerably. The following year, Mr. Marcos undertook to carry out a far more extensive revision of both Sections 401 and 402 by issuing Presidential Decree No. 1464, the Tariff and Customs Code of 1978 (hereinafter 1978 Code). It is necessary to quote extensively from this 1978 Code, which as we shall see later, has persisted in effect up to today: Section 401. Flexible Clause a. In the interest of national economy, general welfare and/or national security, and subject to the limitations herein prescribed, the President, upon recommendation of the National Economic and Development Authority (hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce or remove existing protective rates of import duty (including any necessary change in classification). The existing rates may be increased or decreased to any level, in one or several stages but in no case shall the increased rate of import duty be higher than a maximum of one hundred (100) per cent ad valorem; (2) to establish import quota[s] or to ban imports of any commodity, as may be necessary; and (3) to impose an additional duty on all imports not exceeding ten (10) per cent ad valorem whenever necessary; Provided, That upon periodic investigations by the Tariff Commission and recommendation of the NEDA, the President may cause a gradual reduction of protection levels granted in Section One Hundred Four of this Code, including those subsequently granted pursuant to this section. …. Section 402. Promotion of Foreign Trade a. For the purpose of expanding foreign markets for Philippine products as a means of assistance in the economic development of the country, in overcoming domestic un-

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734

employment, in increasing the purchasing power of the Philippine peso, and in establishing and maintaining better relations between the Philippines and other countries, the President, is authorized from time to time: (1) To enter into trade agreements with foreign governments or instrumentalities thereof; (2) To modify import duties (including any necessary change in classification) and other import restrictions, as are required or appropriate to carry out and promote foreign trade with other countries: Provided, however, That in modifying import duties or fixing import quota the requirements prescribed in subsections “a” of Section 401 shall be observed : Provided, further, That any modification of import duties and any fixing of import quotas made pursuant to this agreement on ASEAN Preferential Trading Arrangements ratified on August 1, 1977 shall not be subject to the limitations of aforesaid section “a” of Section 401. … (Emphasis added.)

The most important change which Mr. Marcos wrought on the original delegation (in 1957) by the Congress of the Philippines of its tariff-fixing power to the President was the elimination of the quantitative limits—the floor and ceiling of the reduced and increased tariff rates—on the tariff-setting delegated power of the President. The floor limitation of decreases of tariff rates was removed: the original floor in Section 401 of 50 of the MFN rates set out in Section 104 of the 1957 Code was reduced to 0 of those rates. At the same time, the ceiling on increases of tariff rates was lowered from 500 to 100 ad valorem. The prohibition under the same Code of shifting by executive order of articles from the “duty-free” (i.e. 0 tariff ) list to the “dutiable” list, and vice versa, was also dispensed with. The limitation ratione temporis which prohibited exercise by the President of his delegated tariff power while Congress was in session was simultaneously done away with by Mr. Marcos. Turning to the trade agreements clause (Section 402), the limitation ratione materiae imposed by the 1957 Code was eliminated: the floor of permissible decreases of tariff rates was set by Mr. Marcos at 0 of the MFN rates. At the same time the ceiling on increases of tariff rates was dropped from 500 to 100 ad valorem. This appeared to say that the import tariff rates could at most either remain where Section 104 had placed them, or be brought back to original levels if they had previously been reduced. Accordingly, no quantitative limits on decreases of tariff rates remained, whether the revision was effected by executive orders (Section 401) or by executive trade agreements (Section 402). The time limitations established in Section 402 were also eliminated. The five-year time period within which the President could carry out tariff-fixing or tariff modification via the executive trade agreement route was stricken off. So also was the five-year limitation on the life span of the executive agreements concluded with foreign countries under Section 402 wiped out. All the limitations on tariff reductions textually embodied in Sections 401 and 402 of the 1957 Code were thus torn down. The practical effect was to make possible the collapsing of the entire tariff regime of the country at any time the President might think that desirable. That former President Marcos retained the legislative standard

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

originally prescribed by Congress for exercise by the President of his tariff-setting power might seem strange to non-Philippine observers. Mr. Marcos, a lawyer of marked astuteness, however, well understood that the interpretation of that legislative standard was subsumed in the legislative power he had unilaterally vested upon himself. He could therefore afford to maintain in place the rhetoric of the legislative standard since the content of that standard depended upon the will and intent of Mr. Marcos as the Administrator of Martial Law. V. The Constitutional Status of Sections 401 and 402 of the (Martial Law) 1978 Code A. Some Considerations Relating to the 1973 Constitution Sections 401 and 402 of the Tariff and Customs (Martial Law 1978) Code, we have stressed earlier, were shorn of all the limitations found in the pre-martial law (1957) Code. Those limitations and restrictions were, it may be recalled, expressly anticipated and authorized in both the Commonwealth Constitution of 1935 (Article VI, Section 22(2)) and the 1973 Marcos Constitution (Article VIII, Section 17(2)). It would follow, it is submitted, that former President Marcos plainly disregarded not only the pre-martial law 1935 Constitution but also the 1973 Constitution, the ceremonial adoption of which he went to great lengths to have the people of the Philippines go through. It has been suggested by a few local observers that former President Marcos, by promulgating the 1978 Code, could be regarded as having acted pursuant to Amendments Nos. 5 and 6 of the 1973 Constitution. This suggestion, however, does not withstand scrutiny. Amendment No. 5 of the 1973 Constitution, read as follows: The incumbent President shall continue to exercise legislative powers until martial law shall have been lifted.

Amendment No. 6 of the 1973 Constitution provided: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue

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IV Making and Applying Investment and Trade Law

the necessary decrees, orders, or letters of instructions, which shall form part of the law of the land.18

736

It is at once apparent that in neither Amendment No. 5 nor in Amendment No. 6 is there any reference to the effectiveness of the constitutional limitations set out in the body of the 1973 Constitution (Article VIII, Section 17(2)) upon decrees and issuances of former President Marcos (like P.D. No. 1464, the 1978 Code). The relevant issue is of course whether or not Mr. Marcos was bound by the terms of the 1973 Constitution. Amendment No. 6 does not purport to authorize former President Marcos to amend the 1973 Constitution. In any case, by issuing P.D. No. 1464, he did not claim to be amending Article VIII, Section 17(2) of his Martial Law Constitution. Once more, the critical issue is whether he was obligated to follow the terms of the 1973 Constitution. To contend that because Amendments Nos. 5 and 6 did not expressly subject acts of Mr. Marcos to the limitations of the 1973 Constitution, he was not bound by such limitations—is in substance to say that Mr. Marcos could lawfully amend the 1973 Constitution by himself, at his own will and pleasure. That in effect is to concede that the 1973 Constitution essentially was elaborate theatre, an Alice-in-Wonderland Constitution, compliance with which was optional on the part of Mr. Marcos legally as well as factually. It might be supposed that Amendments Nos. 5 and 6 constituted autonomous direct grants of legislative power from the people at large to former President Marcos, not burdened with the express restrictions set out in the 1973 Constitution. So to suppose is to posit that during the effectivity of that Constitution, there were parallel streams of legislative power—one the martial law Legislature (the Batasang Pambansa) burdened with the limitative provisions of the 1973 Constitution; and the other, Mr. Marcos hypothetically exercising unlimited powers given to him directly by the people. It is here submitted that such a position is in effect to say once more that the 1973 Constitution was grand theatre, a vast stage play that actually imposed no limits, legal or otherwise, so far as the presidential issuances of Mr. Marcos were concerned.

18

These two provisions were proclaimed by former President Marcos to have been ratified by the Filipino people in a “referendum-plebiscite” held on October 16-17, 1976 and in full force and effect as of October 27, 1976. See Proclamation No. 1595 (Oct. 27, 1976). See in this connection Sanidad v. Commission on Elections and National Treasurer, 165 Phil 303-447 (1976). The Supreme Court, in a decision revealing deep multiple fractures, held that Mr. Marcos, after the effectivity of the 1973 Constitution but before the organization of the Interim Batasan Pambansa (National Legislature) could propose amendments to the 1973 Constitution, a task vested in the National Legislature. The Court did not say that Mr. Marcos could by himself put his own proposals for amendment into effect.

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

B. Some Considerations Relating to the 1987 Constitution Going beyond constitutional history, it may be assumed, arguendo merely, that Sections 401 and 402 of the Martial Law Tariff and Customs Code of 1978, were de facto in effect while martial law persisted in the Philippines. The critical question is this: do Sections 401 and 402 of the 1978 Code continue in effect today—23 years after the 1973 Constitution and Amendments 5 and 6 thereof passed into history, and 22 years after the 1987 Constitution went into effect? The submission here made is that Sections 401 and 402 of the 1978 Code are plainly inconsistent with Article VI, Section 28(2) of the 1987 Constitution. The (a) wiping away of the “specified limits” within which the President may fix or revise tariff rates by executive orders or executive trade agreements, and (b) the removal of the time limitations when the President’s tariff-fixing power may not be exercised by executive order or executive agreement, are not reconcilable with the constitutional mandate that the delegation of tariff power to the President shall be subject to limitations and restrictions imposed by Congress. The Transitory Provisions of the 1987 Constitution addresses the problem posed by presidential issuances inconsistent with constitutional limitations. Article XVIII, Section 3 states: All existing laws, decrees, executive orders, proclamations, letters of instruction, and other executive issuances not inconsistent with this constitution shall remain operative until amended, repealed, or revoked. (Emphasis added.)

The Supreme Court in its case law has given robust effect to the above-quoted provision. Presidential decrees found to be in collision with applicable provisions of the 1987 Constitution, are held to be bereft of legal effect,19 at least after the cessation of martial law. There is a second basis for the submission above made. Sections 401 and 402 as revised by former President Marcos are inconsistent with the fundamental principle of separation of powers and its companion principle of checks and balances. As noted earlier, Sections 401 and 402, in their martial law reinvented form, were bereft of all the substantive limitations and restrictions that the pre-martial law Congress of the Philippines, complying with Article VI, Section 22(2) of the 1935 Constitution, had built into them. Further, those limitations and restrictions had been carried over in the 1973 Marcos Constitution and into the present day 1987 Constitution—compelling if silent evidence of the fundamental nature of the principles involved. Neverthe19

For instance, Sec. 44, par. 1 of Presidential Decree No. 1177 (July 30, 1977) in Demetria v. Alba, 148 SCRA 208 (1987); Sec. 1, par. 3 of Presidential Decree No. 76 (Dec. 6, 1972), Sec. 92 of Presidential Decree No. 464 (May 20, 1974), Sec. 92 of Presidential Decree No. 794 (Sept. 4, 1975), and Sec. 1 of Presidential Decree No. 1533 (June 11, 1978) in Export Processing Zone Authority v. Dulay, 149 SCRA 305 (1987); Presidential Decree Nos. 1669 and 1670 (Jan. 28, 1980) in Manotok v. National Housing Authority, 150 SCRA 89 (1987); and Presidential Decree No. 293 (Sept. 14, 1973) in Tuason v. Register of Deeds, 157 SCRA 613 (1988), among others.

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738

less, and this is a matter for regret, the Supreme Court of the Philippines has to date had no opportunity to pass upon the constitutional issues here canvassed. C. Post-1987 Practice of the Legislative and Executive Departments of the Government of the Philippines: Utilization of Martial Law Issuances Beyond the Termination of Martial Law: Deconstruction of the Tariff Regime of the Philippines The treatment by the Post-Marcos Governments of the executive issuances of Mr. Marcos under Section 401 of 1978 Code has differed from the treatment of non-tariff decrees and other martial law issuances of Mr. Marcos. The latter, as already noted, were in principle tested under the applicable provisions of the 1987 Constitution and if consistent therewith, were left standing and in effect. If found to be inconsistent therewith, such issuances were generally struck down as unconstitutional and devoid of prospective effect. In contrast, the tariff issuances of Mr. Marcos were generally left standing and effective unless prospectively modified by subsequent exercises of tariff-setting power. More portentous, perhaps, was the continuation by each of the four Presidents elected to office after the withdrawal of Mr. Marcos from Philippine affairs, of recourse to tariff-setting by executive orders initiated by Mr. Marcos. Thus, former Presidents Corazon C. Aquino, Fidel V. Ramos, and Joseph Estrada, as well as incumbent President Gloria M. Arroyo, all issued executive orders unilaterally setting or revising tariff rates for numerous products. In these executive orders, the former Presidents and the incumbent President consistently referred either to Section 401 or Section 402 of the 1978 Code.20 20

President Corazon C. Aquino: (1) Executive Order No. 364 (July 21, 1989), which imposed alternative rates on certain articles; (2) Executive Order No. 387 (Dec. 26, 1989), which suspended certain import duties during the period of national emergency; and (3) Executive Order No. 438 (Nov. 27, 1990), which imposed an additional 5 ad valorem duty on all imported articles. President Fidel V. Ramos: (1) Executive Order No. 43 (Dec. 29, 1992), which reduced import duties of certain articles to a minimum level of 25; (2) Executive Order No. 145 (Dec. 27, 1993), which reduced certain tariff rates pursuant to the 1994 Philippine schedule of tariff reductions in the Accelerated and Normal Programs of the AFTA-CEPT Scheme; and (3) Executive Order No. 461 (Dec. 31, 1997), which generally modified the nomenclature of and reduced tariff rates on certain imported articles. President Joseph Ejercito Estrada: (1) Executive Order No. 63 (Jan. 15, 1999), which modified the nomenclature and import duty rates on certain articles; (2) Executive Order No. 71 (Jan. 15, 1999), which reduced certain tariff rates pursuant to the 1999-2003 Philippine schedule of tariff reduction under the new time frame of the accelerated AFTA-CEPT scheme; and (3) Executive Order No. 234 (Apr. 27, 2000), which reduced certain tariff rates pursuant to the 2000-2003 Philippine schedule of tariff reduction of products transferred from the Temporary Exclusion List and the Sensitive List to the Inclusion List of the accelerated AFTA-CEPT scheme. President Gloria Macapagal-Arroyo: (1) Executive Order No. 84 (Mar. 15, 2002), which generally modified the nomenclature and MFN rates on various agricultural products; (2) Executive Order No. 262 (Dec. 30, 2003), which modified the nomenclature and tariff rates on motor vehicles; and (3) Executive

37 Florentino P. Feliciano, Deconstruction of Constitutional Limitations and the Tariff Regime of the Philippines

On January 28, 1992, the Philippines entered into the Framework Agreement on Enhancing ASEAN Economic Cooperation with Brunei, Indonesia, Malaysia, Singapore, and Thailand. Represented by then President Aquino, the Philippines undertook to establish and participate in the ASEAN Free Trade Area (AFTA) for the reduction of tariffs among ASEAN Member States within 15 years. Article 1(2) of the Framework Agreement required all ASEAN Member States to participate in intra-ASEAN economic arrangements, i.e. AFTA, but allowed two or more ASEAN Member States “to proceed first if the others were not ready to implement such economic arrangements.” The Philippines was among the very first of the ASEAN Member States to proceed with the implementation of the AFTA. Executive Order No. 145, which was issued by former President Ramos pursuant to Section 402 of the 1978 Code, took effect on January 1, 1994 and implemented the Philippine commitment in AFTA and the Agreement on the Common Effective Preferential Tariff (CEPT) Scheme and its obligation to reduce tariff rates on specified products at either an “accelerated” or “normal” pace. Executive Order No. 145 identified products with tariff rates of 20 or below for accelerated rate reduction: rates were to be reduced to 5 and 0 by January 1, 2000. Products with (MFN/PTA) tariff rates of 20 or below identified for normal rate reduction were to be reduced to 5 and 0 over the period from January 1, 1996 to January 1, 2003; products whose normal tariff rates were above 20 were to be reduced by 5 percentage points every two years from January 1, 2004 to January 1, 2008. A general policy of further tariff reductions was adopted and formalized in a series of presidential issuances starting with Executive Order No. 264, issued by then President Ramos on July 22, 1995. This Executive Order adopted a general two-tiered tariff structure of 3 for raw materials and 10 for finished goods to be fully implemented by January 1, 2003. A subsequent uniform rate of 5 ad valorem was to be imposed on the same articles starting January 1, 2004. Executive Order No. 439 (September 15, 1997), also issued by then President Ramos, likewise brought down the MFN rates of specific product lines to 0 and 10.21 Since the departure of former President Marcos in 1986, Congress has enacted only one statute that amended the 1978 Code. Republic Act. No. 6647 (hereinafter R.A. 6647), which went into effect on 29 January 1988, amended Section 104 of the 1978 Code and prescribed new tariff rates for 31 categories of imported goods and expressly prohibited the President from increasing or decreasing those rates while Congress was in session. Congress apparently reserved for itself the power to revise the tariff rates for the 31 categories of goods specified in R.A. No. 6647, but did not address the matter of revision of the tariff rates of many hundreds of other classes of goods. Thus, to date Congress has not undertaken any effort systematically to re-examine Sections 401 and 402 of the Martial Law Code, in the light of the 1987 Constitution.

21

Order No. 703 (Jan. 22, 2008), which reduced the tariff rates on 80 of the products in the Inclusion List to 0 under the AFTA-CEPT scheme. Figures from the Tariff Commission show that the average nominal tariff dropped from 7.96 in 2000 to 6.95 in 2008. As of 2007, majority of tariff lines had an MFN rate ranging from 0 to 15, while majority had a CEPT rate of 0 to 5. The highest MFN rate was 65 for four tariff lines, while the highest CEPT rate was at 40 for one tariff line.

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Neither has Congress enacted a new post-martial law Tariff and Customs Code. De facto, the task of revision of pre-existing tariff rates and the setting of rates for new categories of imported goods has effectively been taken over by the President of the Philippines since the end of the martial law period of Philippine history. That task has in practice been lodged with the President since 1986 and remains there to date. The changes effected by former President Marcos in respect of the tariff regime of the Philippines are structural in nature and have outlived for almost a quarter of a century the end of his martial law regime. The Congress has not retrieved for itself the tariff-setting power which it had delegated to the President 52 years ago (in 1957). What originally was a limited delegated power has effectively been converted into the plenary legislative power to set and revise tariff rates for any and all kinds of imported goods. The distribution of powers and functions among the three principal departments of government has thus effectively been altered in respect of the imposition and revision of tariff rates, subject only to the general injunction that the system remains within the “framework of the national development program of the Government.”22 The structural relocation of the tariff-setting power from the Legislature to the President translates into a reduction of power on the part of the Legislature to set the course and direction of economic development of the nation. Yet, as has been earlier noted, the formulation and promulgation of national development programs of the nation is vested under the 1987 Constitution in the Legislature, not in the President. The officials that those in the private sector need to persuade as to the need for and the merits of any proposed change in the tariff structure and lists of import quotas have changed: those officials are no longer the members of the House of Representatives and the Senate. They are now instead the President and other officials of the Executive Department. In operational terms, it may be said that the lobbying arena has been shifted from the committees and halls of Congress to the relevant offices of the Executive Department. There is no necessity to prove the existence or scope of a national emergency, nor the intervention of extraordinary circumstances before tariffs can be revised. Hearings at the Tariff Commission are still necessary, but those seem less demanding than hearings before Congressional or Senate committees. These changes in operating procedures have probably made possible certain efficiencies and economies, if only because there are in the nature of things fewer participants in the decision-making processes in the Office of the President than in Congress. Issues of good governance of course remain, and longer-term perspectives require that the participants consider giving up such efficiencies and economies. In the restructured, constitutionally flawed, process that persists, it may be more difficult to ensure that long term perspectives and more inclusive and broader interests are, as they should be, in fact taken into effective account rather than exclusive and narrower economic interests. The primacy of those perspectives and interests is at the center of the theory of the pluralistic and just, open and caring, society that the Constitution seeks to project for the people of the Philippines.

22

Const. art. VI, § 28(2).

Chapter 38 Softening Necessity Francisco Orrego Vicuña

Like old habits, ancient institutions never die. At a time that it was thought that necessity had been put to rest because of it having been carefully considered by the International Court of Justice and the scholarly discussions of the International Law Commission (ILC), a sudden flurry of cases reopened the discussion about this concept and its requirements.1 While such cases have been concerned with the specifics of investment law in the context of bilateral treaties, the purport of this renewed discussion is much broader as it touches upon basic questions of customary international law and the interplay of the sources of the law, both international and domestic. While the evolution of legal thinking is a natural occurrence in connection with the rules and principles of international law, the overall trend that can be perceived at present is troubling in that it appears to have engaged in the process of softening necessity so as to accommodate situations that would not have otherwise found justification in legal thought. This phenomenon is not unique to necessity as it has pervaded many aspects of international law. At the same time, however, corrective trends also appear to be emerging so as to control potential distortions of the law. Throughout the evolution that has surrounded the concept and requirements of necessity, a common thread has been to allow for its availability only in circumstances of an exceptional nature.2 Grave and eminent peril threatening a vital interest of the State was the first standard introduced by the International Law Commission when it began the consideration of the law of State Responsibility.3 Thereafter, how1

2

3

See Julien Fouret, CMS c/ LG&E ou l’état de nécessité en question, 2007 Revue de l’Arbitrage 249; Michael Waibel, Two Worlds of Necessity in ICSID Arbitration: CMS and LG&E, 20 Leiden J. Int’l L. 637 (2007); Mathieu Raux, Les circonstances excluant l’illicéité dans le cadre du contentieux investisseurs-Etats, 2008 Les Cahiers de l’Arbitrage 41. See Andrea K. Bjorklund, Emergency Exceptions: State of Necessity and Force Majeure, in The Oxford Handbook of International Investment Law 459, 464 (Peter Muchlinski et al. eds., 2008). See 1 F.V. García-Amador: The Changing Law of International Claims 235-36 (1984).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 741-751.

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ever, winds began to change in the light of recent decisions, which have been rightly labeled as a “véritable cacophonie.”4 I. Treaty Rules and Customary Law Are Mutually Reinforcing One first issue concerns the relationship between treaties and customary law. Necessity was included, and would never leave, a chapter on “Circumstances Precluding Wrongfulness.” It could be thought that this was logical in the context of the codification of State Responsibility, but with time it has taken a rather unexpected legal turn leading to an issue of interpretation of treaties in contrast to customary international law. It has been held in this respect that a certain clause of a treaty not precluding the application of measures necessary to safeguard public order, international peace and security and essential security interests entails the consequence that, if such measures are deemed necessary by the government to cope with the situation, will not be in breach of the treaty obligations.5 This is a case of exculpation. In contrast, however, the provision of Article 25 of the Articles on State Responsibility entails an act which in itself is contrary to an international obligation but, because of the preclusion in the light of necessity, does not carry with it liability.6 This is a case where the wrongfulness of the act still exists but is excused in view of Article 25 to the extent that the conditions therein set out are met.7 In the first case, the primary obligation does not apply while in the second it is the secondary that is precluded. The understanding of the customary law approach appears to be the correct one and has normally been accepted as such. That relating to the treaty provision does not appear so easy to understand in spite that it has been recently followed.8 It is first difficult to find in the language of those two provisions essential differences as they address the same issue, albeit more generously in the treaty case. It is thus also difficult to understand why preclusion under a treaty ought to have such a different treatment from the very same concept of preclusion under Article 25 of the Articles on State Responsibility. Professor Lowe has rightly commented that the distinction between exculpating and excusing has practically disappeared from the Articles on State Responsibility and that it is preferable to favor an interpretation that would result in excusing a 4 5

6 7 8

Raux, supra note 1, at 41. See Continental Casualty Co. v. Argentine Republic, ICSID Award of September 5, 2008, para. 174 (discussing Article XI of the 1991 Bilateral Investment Treaty between the United States of America and Argentina). See CMS Gas v. Argentine Republic, Decision of the Ad-Hoc Committee on the Application for Annulment of the Argentine Republic, September 25, 2007, para 129. See CMS Annulment Decision, supra note 6, para. 129; Continental, supra note 5, paras. 163, 167. See CMS Annulment Decision, supra note 6, para.129; LG&E v. Argentine Republic, Decision on Liability, October 3, 2006, paras. 244-245; Continental, supra note 5, paras. 166-167.

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wrongful conduct rather than in exculpating it.9 This is indeed more realistic as to find no breach where a breach has occurred is legal fiction. But then this begs the question of why should it be different under the treaty where, absent a clear rule as to the effect of necessity, exculpation has been preferred to excuse in the very same reasoning underlying some recent decisions.10 More importantly, it is difficult to construe a treaty in such a manner that it will include, on the one hand, strict obligations, and, on the other hand, an escape route doing away with the same obligations. When the International Court of Justice considered necessity in the light of a treaty found in no uncertain terms that even where necessity is found to exist it does not result in the termination of the treaty.11 The fact that the treaty provision in question does not define the concept of “measures necessary” and the customary standard, at least as expressed in the Articles, deals with the matter in certain detail, is also relevant as to the proper interpretation of the treaty. If an instrument done under the aegis of international law is somehow incomplete, it appears quite natural to search for the missing meaning in the mother source that is general international law. That the state of necessity defense is a part of customary international law has been most often recognized by international courts and tribunals.12 The legal reasoning attached to the self-contained interpretation of the treaty appears somewhat over-elaborate as if it were the case of considering new aspects of the commentaries on the Articles on State Responsibility.13 While interesting as a scholarly exercise, it is potentially damaging in terms of the fulfillment of international obligations.14 If treaties are interpreted in a way that could lead to self-destruction one wonders whether such a rule should not have been written into the Vienna Convention on the Law of Treaties, where most likely it would not have been accepted or would have required exceptional demanding conditions, as shown by the case of changed circumstances. Pacta sunt servanda does not appear to have emerged strengthened by a legal interpretation meaning pacta non sunt servanda. While the interlinking of treaty and customary law requirements in respect of necessity has been held to be a manifest error of law in the context of a particular case,15 one may respectfully wonder whether the error of law might not lie with the 9 10 11 12

13 14 15

See Vaughan Lowe, Precluding Wrongfulness or Responsibility: A Plea for Excuses, 10 Eur. J. Int’l L. 435, 443 (1999), as discussed by Bjorklund, supra note 2, at 510. See CMS Annulment Decision, supra note 6, para. 129; Continental, supra note 5, para. 167. See Case Concerning the Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 1, 63 (Sept. 25). See Gabčíkovo-Nagyamaros Project, at 40; CMS Gas Transmission Co. v. Argentine Republic, Award of May 12, 2005, para. 315; Enron Corporation v. Argentine Republic, Award of May 22, 1997, para. 344; and comments by Bjorklund, supra note 2, at 474. See James Crawford, The International Law Commission’s Articles on State Responsibility (2002). See CMS Award, supra note 12, para. 317. See CMS Annulment Decision, supra note 6, para.130.

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approach suggesting that a rather vague clause of a treaty might be able to simply do away with the obligations established under the same treaty. II. Preclusion of Necessity Is the General Rule The implications of the debate about treaty and customary international law rules are also apparent in respect of the Article 25 conditioning of the availability of the state of necessity defense to the requirement that the international obligation in question will not have precluded such defense. If in fact the main purpose of investment treaties is to provide protection to certain economic interests in times of difficulty,16 it is only reasonable to understand that the invocation of necessity is precluded unless a very specific exception is also agreed to. It has been suggested that in such a context there is even room for the argument that this particular defense has been waived.17 As noted above, when reference is made to necessity but the treaty does not define what the exception is precisely about, recourse to the requirements made explicit under customary international law does not seem unreasonable.18 It is not that the treaty is not applied but it is simply that this is done in the proper legal context. Whether this reasoning may be open to criticism is not for this writer to comment on as it has been done elsewhere from both a legal and institutional perspective.19 Neither it is for this writer to comment on why did one State concerned argue in terms of the availability of the defense both under customary law and the treaty. Note might be taken, however, of the fact that in a recent case the same State argued that the principle of necessity enshrined in a treaty with the United States exists regardless of it not having been included in a treaty with the United Kingdom.20 In this light the discussion about whether the availability of the defense should first be examined under the treaty and, only if unsuccessful, examined next under customary international law,21 appears to be somewhat circular. If the treaty precludes the defense there is no second shot at it under customary law. If it provides for an exception and this is not defined, its examination under customary international law will be the first and only shot supplementing the treaty vacuum. It is the two shots that would appear to run counter to the strictness of the requirements of international law. The awkward consequence of the two shot approach has been well explained by a writer commenting on the CMS Annulment Committee decision and the examination of necessity first under the treaty and, if unavailable, under customary law as

16 17 18 19 20 21

See BG Group Plc. v. Argentina, Final Award of December 24, 2007, para. 310. See Bjorklund, supra note 2, at 490. See Enron, supra note 12, para. 334; Sempra Energy International v. Argentine Republic, Award of September 28, 2007, para. 377. See Emmanuel Gaillard, Chronique des sentences arbitrales, Revue trimestrelle-JDI, Jan.-Mar. 2008, 311, 350-64. See BG Group, supra note 16, para. 373. See Continental, supra note 5, para. 161-162.

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expressed in Article 25: “Les conditions de la mise en oeuvre de l’article 25 du projet final de la CDI étant bien plus drastiques que celles de l’article XI du TBI, l’on voit en effet mal comment une mesure qui n’aurait pu être justifiée par celui-ci le serait en application de celui-là.”22 If the requirements of state of necessity are examined in the light of this discussion it is not difficult to realize that here too there are major differences as to their meaning and extent. Precisely because necessity has been traditionally conceived as a most exceptional legal defense is that Article 25 of the Articles on State Responsibility was written in negative terms to the extent that “Necessity may not be invoked . . .unless the act,” to be followed by the still stricter rule that “In any case, necessity may not be invoked” if some situations are given, most notably that the international obligation in question excludes the possibility of so invoking or the State has contributed to the situation of necessity. The ILC discussion expressly foresaw that other sources of international law beyond the treaty could be invoked to exclude necessity.23 III. Essential Interests Are Not Common While many times the differences noted stem from a divergent assessment of the facts, they nonetheless also have serious legal implications. A case in point is that concerning what is to be understood as an essential interest of the State. While this requirement has been traditionally understood as a most stringent condition, relating to the State’s survival, it would appear that a more lax standard is being suggested today. The stringency of the standard did not impede that essential interests might encompass various situations of economic hardship or even ecological necessity, but in any event all such overtures requiring an extreme situation threatening the very existence of the State. Although still requiring a threat to that existence, this appears to have become more nominal than real to the extent that in some views the threat becomes less demanding since it would suffice to relate it to “any danger seriously compromising [the State’s] internal or external situation,”24 or even to a “severe economic crisis.”25 A second requirement came to reinforce the stringency of the standard by linking it to “grave and imminent peril,” a matter on which courts and tribunals appear all to agree. However, here again different interpretations of what is to be considered grave and imminent in the light of the circumstances has in fact meant that the requirement can be understood in a hard or soft manner. The same circumstances have received very different assessments in recent decisions thereby evidencing that the

22 23 24 25

Raux, supra note 1, at 44. See James Crawford, Second Report on State Responsibility: Addendum, 1999, paras. 290-291, as discussed by Bjorklund, supra note 2, at 470. LG&E, supra note 8, para. 251. Continental, supra note 5, para. 178.

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requirement has become more subjective than objective, to the point that even measures such as the freeze of bank accounts have been justified in the light of necessity.26 The same holds true of the requirement that the measures adopted must be the only means to achieve the safeguard of such essential interests. Taking into account the panoply of political and economic instruments that the contemporary state has at its disposal to deal with situations of crisis it is difficult to say whether a certain measure was the only means available to cope with such a threat. More often than not the state will have a variety of choices, some of which will potentially affect international obligations more than others. How governments around the world have dealt with political or social unrest or with the handling of the current economic crisis shows the wide variety of options available. It has been suggested that the requirement of stringency in this connection might make the defense impossible and that it would be preferable to introduce a test of adequacy and proportionality in the consideration of this matter.27 That approach might result in making the assessment of the facts still more subjective and thus departing farther from the objectivity the International Court of Justice emphasized.28 Several tribunals have also noted the danger of opening the door to elude international obligations.29 In any event, if such a route were followed it might be appropriate to inquire whether adequacy and proportionality are related only to the safeguard of the essential interest in question or also needs to take into account the graver or lesser breach of the international obligation concerned. It is also of interest to note that the treatment of necessity and emergency under domestic law is invariably subject to strict requirements. This is notably the case of Switzerland, where keeping emergency legislation for several years after the war justifying such emergency had ended was considered an “abus du droit de nécessité.”30 Equally demanding is the Argentine jurisprudence on the state of economic emergency, where it has been held that the measures adopted must not substantially mod-

26 27

28 29 30

See id. para. 205. See August Reinisch, Necessity in International Investment Arbitration—An Unnecessary Split of Opinions in Recent ICSID Cases?, 8 J. World Investment & Trade 191, 201 (2007), as discussed and supported by Bjorklund, supra note 2, at 485. See Gabčíkovo-Nagyamaros, supra note 11, at 42. See Enron, supra note 12, para. 304. François Bellanger, Droit de nécessité et état d’exception, in Droit Constitutionnel Suisse 1261, 1270 (Daniel Thürer et al. eds., 2001).

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ify an acquired right, and must be reasonable and limited in time.31 Comparative law is also abundant on requiring strict conditions for the operation of necessity.32 IV. Individuals Have A Protected Interest The most interesting legal issue surrounding the renewed discussion on state of necessity relates to the role of the individual as a beneficiary of investment treaties. In point of fact, while Article 25 of the Articles on State Responsibility requires that necessity not seriously impair an essential interest of the state to which the obligation relates, it is difficult to dissociate the principle from the real beneficiary of the obligations undertaken in investment protection treaties. That the Articles on State Responsibility were designed to apply between states is not disputed, but whether that prevents taking into account the interest of the real beneficiary of an obligation is a different question. It should first be noted in this respect that in the light of the current state of evolution of international law it would be untenable to suggest that the individual, who is directly or indirectly the ultimate beneficiary of rights and obligations of the international legal system, has no role to play in the assessment of whether a given measure has impaired an essential interest bestowed by the State upon that individual. This explains why some decisions have made the distinction between the interests of the state beneficiary of the obligation, which might not feel particularly affected by a given measure, and that of the individual that has been directly affected. The beneficiary state might be even dissociate itself from the measures in question for political reasons—which is the situation that explains the reference in a decision to a “dwindling” interest—but this does not prevent that the interests of the individual beneficiary might have been as such seriously impaired and deserve full protection under international law.33 It is interesting to note in this respect two alternative jurisprudential developments. The first concerns a State that resorted to countermeasures in the light of Article 22 of the Articles on State Responsibility because of the breach of an interna-

31

32 33

See Argentine Supreme Court, Judgment in the Case Provincia de San Luis c. P. E. N.— Ley 25561, Dto. 1570/01 y 214/02 s/ amparo, March 5, 2003. On the Argentine legal framework on necessity, see further Dámaso Javier Vicente Blanco, El primer laudo arbitral del CIADI sobre el fondo relativo a la crisis argentina 2000-2002: El Laudo de mayo de 2005 en el caso CMS Transmission Company c. República Argentina, in El Derecho Privado ante la internacionalidad, la integración y la globalización 635, 651 (Atilio A. Alterini & Noemi L. Nicolau, 2005); Alberto Ricardo Dalla Via, La invocación del principio de supremacía y del estado de necesidad en los arbitrajes internacionales ante el CIADI, Asociación Argentina de Derecho Constitucional, Debates de actualidad, May-Nov. 2005, 7, at 11. See Carlos Hecker Padilla, El estado de necesidad en el derecho francés y el derecho comparado, Actualidad Jurídica, Universidad del Desarrollo, Jan. 2009, 139-208. CMS Award, supra note 12, paras. 357-358.

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tional obligation.34 The second development relates to the view of one tribunal holding that the Articles on State Responsibility are not applicable to investment treaties as they were designed only to apply between states and hence may not be invoked for preventing compensation of the investor affected under a treaty.35 The issue, however, has been convincingly explained by the Courts of England when confronted with the need to safeguard the rights of individuals. It has been rightly concluded that the fact that a treaty is done between states cannot allow the derogation of rights that belong to private parties.36 Lord Justice Collins has also held that “Typically under a BIT the investor is given direct standing to pursue his own claim against the State of the investment in respect of any ‘investment dispute.’”37 Article 25 of the Articles on State Responsibility also relates the requirement of non-impairment to the interests of the international community as a whole. This is a vague concept indeed which stems from the efforts that the ILC has made from time to time to conceptually innovate in the legal reasoning underlying a rule, which has not always met with success. For one aspect, the international community as a whole would have no standing to claim for itself and the prospects of an actio popularis in international law are not quite close. V. Taking Advantage of One’s Own Fault Is Not Permissible Another element to be considered is the unavailability of the defense in case that the state has contributed to the situation of necessity. The legal principle involved in this discussion is quite simple. It concerns whether the state could take advantage of its own fault by later claiming that it should be exempted from the obligation in question in view of necessity.38 Nothing under international or domestic law allows us to accept this contention as it is irreconcilable with the principle of good faith. Yet in recent practice this conclusion does not appear to be that evident in view of the proposition that the state may invoke the defense if it shows the desire to slow down by all means available the severity of the crisis,39 or, as usually argued by the state in its defense, because there have been exogenous factors intervening in the origin of such a crisis. While that desire is most respectable, this is always a post facto reaction to a crisis already very much at hand and which might have been of the making of a prior government. It does not seem that a situation that has derogated from international obligations should be excused so easily by retrospective repentance.

34

35 36 37 38 39

See Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. Mexico, (ADM), Award of November 21, 2007, and comments by Raux, supra note 1, at 45-48. See BG Group, supra note 16, para. 408. See Ecuador v. Occidental Exploration & Production Co., English Commercial Court, Case No: 2004 FOLIO 656, Judgment given on April 29, 2005, para. 85. [2008] EWCA Civ 1283, Case No. B2/2008/0489. See Enron, supra note 12, para. 311, and discussion by Bjorklund, supra note 2, at 490-92. See LG&E, supra note 8, para. 256, and discussion by Bjorklund, supra note 2, at 491.

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The contribution of exogenous factors will be readily available as an excuse in today’s global economy as it is dramatically evidenced by the effects of the current international economic crisis. It would be difficult to find, however, that states could do away with their international obligations because the origins of the crisis are found to a greater or lesser extent in those exogenous factors and individual states might then be allowed to invoke a situation of necessity to which they have not contributed. In any event it would be here where the test of proportionality might be useful so as to determine whether exogenous or endogenous factors are preponderant in the situation giving rise to necessity. Moreover, examination of the historical record of the country in question might be also appropriate as on occasions crises of the kind have been at hand recurrently along the centuries.40 VI. Necessity Requires Independent Judging The difficulties that have been noted above would become unmanageable if the state invoking necessity could become the sole judge of the legality of the measures it has taken in the light of the situation concerned. Because these measures are many times adopted in conditions of emergency the initial judgment will be of course made by the state itself, but this is only true temporarily as at some point later in time a court or tribunal will be called to pass judgment on whether the conditions that would factually and legally justify the defense invoked have or not been met. Not surprisingly, courts and tribunals have thus far been unanimous at holding that necessity is not a matter for self-judging under either customary law or treaty law, except to the extent that this might have been specifically provided for.41 The issue, however, has a derivative consequence. It has been argued that if the measures were successful in coping with the crisis when this is examined at a later time it might lead to the conclusion that the situation was not that threatening to the existence of the state and hence to have the defense disqualified.42 This examination will be in essence a factual one as tribunals ought to be convinced that the situation was as serious as to justify the adoption of such extraordinary measures that might derogate from an international obligation, an assessment that will take into account the views preponderantly held on that situation by experts, competent organizations and the general public, but finally it will be made by the tribunal in exercise of independent judgment and common sense. In recent situations where necessity has been invoked it has been the state itself that has argued that the situation was so grave as to threaten the very economic and political existence of the state. It is against that very argument that a tribunal will need to examine whether that threat was real or not. It is on this point, however, where the 40 41

42

See Sebastián Edwards, Al Sur de la Crisis, Letras Libres, Dec. 2008, at 10. See Bjorklund, supra note 2, at 503-05 (referring to Gabčíkovo-Nagyamaros, supra note 11, at 40; CMS, paras. 359, 370; Enron, supra note 12, para. 339; LG&E, supra note 8, paras. 212-213; and Sempra, supra note 18, para 374); see also Continental, supra note 5, paras. 187-188. See Bjorklund, supra note 2, at 506-07.

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findings will be again at variance. Some will take a rather strict approach that while not ignoring the existence of serious difficulties will not consider that such a threat was real at the time or in retrospect.43 Others will take a rather lax approach resulting in the acceptance of necessity in view that the situation might have been serious enough even if not related to the threats that the state itself had argued.44 In fact, the second approach appears to have considered serious public disorders enough to justify the defense of necessity. The standards of judgment in these approaches are not only different but might give place to the question of whether it is appropriate to apply a threshold lower than that which the state has set in its own argument. VII. Compensation Is Due The differences outlined above about the treatment of necessity under a treaty and customary law also have implications in respect of compensation. If no wrongfulness is attached to the breach of an obligation because of the “circumstances precluding wrongfulness,” the heading under which necessity is grouped in the Articles on State Responsibility in connection with customary law, it has been suggested that the breach is, like under the treaty, precluded.45 It would thus follow, also like under the treaty, that no compensation is due. In such a case, necessity would operate no differently from the treaty based defense. Article 27 on State Responsibility, however, requires compensation once the circumstances will have ceased to exist, thereby also evidencing that a breach took place at the time. This thought is reinforced by the proposition that even if circumstances justifying necessity are found this is without prejudice to the question of compensation.46 Different, however, was the case of a United Kingdom investment treaty where the necessity defense was found not to be available at all as it was not written into the treaty,47 in addition to the conclusion that a provision on non-discrimination with respect to compensation in cases of national emergency means something quite different from necessity and confirms the need to compensate even in circumstances of emergency.48 VIII. Safeguarding the Stability of the Legal Order Softening necessity may be tempting as one can always feel sympathy for conditions of hardship, quite separate from any political or ideological identity, but the consequences for the stability of contracts and treaties might be very serious indeed. In fact, it would result in overhauling the rationale of all the major legal systems of the 43 44 45 46 47 48

See CMS, supra note 12, para. 354. See Continental, supra note 5, para. 174. See Bjorklund, supra note 2, at 507. See CMS, supra note 12, para. 388. See BG Group, supra note 16, para. 382. See id. para 384.

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world, international law included, which are premised on the requirement of very strict conditions for truly extraordinary circumstances. From that change to allowing for a pretext for not complying with obligations that one may not like at a certain moment there is only one step. If the threshold is lowered to the extent that recent decisions have suggested one may wonder whether a state of necessity may not be invoked by the United States in view of a major financial crisis, the United Kingdom in the light of its GDP having fallen to levels comparable to the postwar years, or Spain for having unemployment reaching a third of its work force. Could treaties and contracts be done away with in such circumstances, which in addition should be self-judged and ought not to result in any compensation due? Perhaps it is better to think twice.

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Chapter 39 Truth and Efficiency: The Arbitrator’s Predicament William W. Park*

Truth is the daughter of time.1

I. A View from the Hilltop Often called the first European novel, Don Quijote de la Mancha weaves together the idealistic quests of a slightly delusional Spanish gentleman who saw himself as a knight errant long after the age of chivalry had ended. A Moorish enchanter had recorded the Don’s adventures, defeats and victories. At one point in the story, the Don objects to narratives of his defeats, arguing that heroes deserve praise, not scorn. After all, he adds, Virgil embellished the piety of Aeneas just as Homer enhanced the wisdom of Odysseus. In response, a young scholar suggests two different ways to view the world. A poet can express things as they ought to have been, whereas the historian must write things as they were.2 Like historians, arbitrators normally focus on things as they were, seeking the most reliable account of the controverted events giving rise to the claims. In deciding disputes accurately, arbitrators promote the type of promise-keeping that underpins the positive economic teamwork that marries public and private welfare. Often underrated or misjudged, truth has dispatched more than one mind beneath the intellectual storm waves of a giant analytic sea, and anyone venturing to 1

2

“Veritas filia temporis.” A second-century Roman grammarian attributes the saying to an unnamed predecessor: “Alius quidam veterum poetarum, cuius nomen mihi nunc memoriae non est, Veritatem Temporis filiam esse dixit.” Aulus Gellius, Noctes Atticae, XII.11.7. Sansón the scholar says, “It is one thing to write like a poet, another like a historian. A poet can say or sing things not as they were, but as they should have been. The historian should write them down not as they should have been, but as they were, without adding or omitting anything.” (“Pero uno es escribir como poeta, y otro como historiador: el poeta puede contar o cantar las cosas, no como fueron, sino como debían ser; y el historiador las ha de escribir, no como debían ser, sino como fueron, sin añadir ni quitar a la verdad cosa alguna.”) Miguel de Cervantes, Don Quijote de la Mancha, ch. 3, at 569 (Real Academia Espanola ed. 2004) (1605 & 1615).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © 2010 by William W. Park.

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explore its contours must do so with fear and trembling.3 Yet truth-seeking lies at the core of what arbitration is about and cannot long be avoided in any serious discussion of the subject. Several levels of inquiry present themselves. A panoramic perspective from 6,000 meters (20,000 feet for American alpinists) might examine reality in an abstract way. With varying degrees of sincerity, thinkers since antiquity have asked, “What is truth?”4 By contrast, lawyers in the litigation trenches consider ways that rival versions of truth influence the judges, juries and arbitrators who decide cases. This vista includes the art of advocacy and the tools customarily used to persuade decisionmakers that one view of the case has more merit than another. In the common law tradition, such communications implicate rules of evidence intended, albeit in part, to enhance the prospect of reaching a correct conclusion. Finally, a view from the hilltop (somewhere between the trenches and the Alpine peaks) looks at how goals other than truth-seeking enter the equation. Examining documents and listening to witness testimony will cost time and money. At some point, the additional enlightenment to be gleaned from more information will be offset by the value of finality and economy. The present essay explores this last line of inquiry, looking at how the value of truth-seeking weighs in the balance against sensitivity to speed and economy in arbitration. Accuracy in arbitration means something other than absolute truth as it might exist in the eyes of an omniscient God. In examining the competing views of reality proposed by each side, arbitrators aim to get as near as reasonably possible to a correct picture of those disputed events, words, and legal norms that bear consequences for the litigants’ claims and defenses. They recognize that some answers are better than others, even if perfection proves elusive.5 3

4

5

The nineteenth-century Danish philosopher Søren Kierkegaard popularized the expression in Frygt og Bæven, the title of which was lifted from a line in Philippians 2:12 where Paul encourages his readers to “work out your salvation with fear and trembling.” Among the more well-known examples, Pontius Pilate posed the question at the trial of Jesus, but without bothering to stay for an answer. John 18:38. A quip about “jesting Pilate” served the English jurist Francis Bacon in opening his essay, Of Truth (1601). In The Antichrist, Friedrich Nietzsche called that question the only one of value in the New Testament. More recently, Andrew Lloyd Webber and Tim Rice worked the question into the rock opera, Jesus Christ Superstar, and country singer Johnny Cash used it as the title of a 1970 hit single. The discipline of epistemology explores truth in “correspondence theory” (asking whether a statement corresponds to reality) and “coherence theory” (asking whether one statement is coherent with others). See generally George Pitcher, Truth (1964). In this connection, not all questions pose the same epistemological challenges. Determining why a marriage failed is not the same as deciding whether goods arrived, an employee received her salary, or a landlord refunded a tenant’s security deposit. Moreover, the apparent relativity of truth often derives simply from imprecision in language or from different angles of perception, as when Australians say that winter starts in June while Bostonians assert that the season arrives in December. Although contradictory on their

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

Such truth-seeking relies principally on documents, human recollection, and expert opinion. For complex commercial and investment cases, the process does not necessarily come quickly or cheaply. Of all the goals that compete with adjudicatory truth-seeking, few have been more challenging than speed and economy. Indeed, time and cost often appear as the enemy, interfering with efficient arbitration. On more mature reflection, however, time may prove the patron of good arbitration rather than its enemy. Although justice delayed can mean justice denied, a sense that truth matters remains vital to a perception that justice is being done. Arbitration becomes a lottery of inconsistent and unpredictable results without some investment of the time and money required for a rigorous search for facts and law in which the litigants receive a meaningful opportunity to present their cases. Success in arbitration is not measured by a stopwatch alone. Much of the criticism of arbitration’s cost and delay thus tells only half the story, often with subtexts portending a cure worse than the disease. An arbitrator’s main duty lies not in dictating a peace treaty, but in delivery of an accurate award that rests on a reasonable view of what happened and what the law says. Finding that reality in a fair manner does not always run quickly or smoothly. Although good case management values speed and economy, it does so with respect for the parties’ interest in correct decisions. The parties have no less interest in correct decisions than in efficient proceedings.6 An arbitrator who makes the effort to listen before deciding will enhance both the prospect of accuracy and satisfaction of the litigants’ taste for fairness. In the long run, little satisfaction will come from awards that are quick and cheap at the price of being systematically wrong. To fulfill its promise of enhancing economic cooperation, arbitration must aim at an optimum counterpoise between truth-seeing and efficiency. Just as a restaurant can fail to provide an agreeable dining experience either by serving bad food or by making customers wait too long for their meal, arbitrators fall short of their duty by neglecting procedures that promote correct awards just as much as by failing to calibrate the expenditure of time and money. If arbitration loses its moorings as a truth-seeking process, nostalgia for a cheerful golden age of quick results will yield to calls for reinvention of an adjudicatory process aimed at actually getting the facts and the law right. Though not so jealous as to exclude all rivals, truth does insist on remaining first among equals as the principal objective of the arbitral process.

6

face, each statement bears some relationship to the realm of reasonably ascertainable reality. One study found litigants rated a “fair and just result” in arbitration above other considerations including cost, finality, speed, and privacy. See Richard W. Naimark & Stephanie E. Keer, International Private Commercial Arbitration: Expectations & Perceptions of Attorneys & Business People, 30 Int’l Bus. Lawyer 203 (2002). The eight ranked variables included speed, privacy, receipt of monetary award, fair and just result, cost-efficiency, finality, arbitrator expertise, and continuing relationship with opposing party.

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II. Rivals of Award Accuracy 756 A. An Era of Disenchantment On a small street in downtown Boston stands a shoe-repair shop with a proactive approach to customer complaints. In the window, an equilateral triangle links three options: fast service, low price, high quality. “Pick any two,” patrons are advised. The price of such trade-offs may be missing from much of the current nostalgia for a bygone golden age of cheap and cheerful arbitration. Much is said about the business community’s disenchantment with arbitration.7 The critics devote less energy to grappling with the dissatisfaction that would follow a shift away from truth-seeking as arbitration’s principal aim. It has become commonplace to lament that the arbitral process now resembles the inheritance dispute satirized in Bleak House, described as “so complicated that no man alive knows what it means.”8 Arbitration rules are ridiculed as too detailed,9 and a “scorched earth” policy is said to taint many proceedings.10 Commentators urge a model that is “simpler, quicker and more basic”11 to replace the unfortunate “legalism” and “judicialisation” that have allegedly infected arbitration.12 7

8

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11 12

In this regard, see generally the series of articles in 2(5) World Arb. & Med. Rev. (2008), and the excellent introduction by Christopher R. Drahozal, Disenchanted? Business Satisfaction with International Arbitration, id. at 1. For a thoughtful Continental view on arbitration’s rival objectives, see Matthieu de Boisséson, New Tensions Between Arbitrators and Parties in the Conduct of the Arbitral Procedure, 2007 Int’l Arb. L. Rep. 177 (2007). At the 2008 Congress of the International Council for Commercial Arbitration, no less an eminence than Fali Nariman spoke of the loss of arbitration’s emphasis on speed and economy. Fali Nariman, ICCA Congress, Dublin, Working Group B, Current Developments (June 10, 2008). In response, another leading light, James Carter, asked whether the golden age had really been so golden. Charles Dickens, Bleak House (1853). Litigation costs in Jarndyce v. Jarndyce ultimately consumed the entire estate, with despair causing one legatee to blow his brains out at a Chancery Lane coffee house, while another expired in hopeless dejection. See Serge Lazareff, Avant-propos: Le bloc-notes de Serge Lazareff, 124 Gazette du Palais: Cahiers de l’arbitrage 3 (No. 338/339, 3 and 4 Dec. 2004). Likening procedural guidelines to a loathsome skin disease (le prurit réglementaire), Me. Lazareff imagines lawyers consulting a hypothetical Code of Arbitral Conduct that stipulates the number of bathroom breaks allowed as a function of hearing time. See Klaus Peter Berger, The Need for Speed in International Arbitration, 25 J. Int’l Arb. 595 (2008) (commenting on the new DIS Supplementary Rules for Expedited Proceedings). Professor Berger goes on to note that arbitration may well be more suited than court proceedings to the resolution of complex cross-border business disputes but that complexity can add time and cost. Alan Redfern, Stemming the Tide of Judicialisation of International Arbitration, 2(5) World Arb. & Med. Rev. 21, 37 (2008). Gerald F. Phillips, Is Creeping Legalisms Infecting Arbitration?, 58 Disp. Resol. J. 37 (2003).

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

Users of international arbitration are said to be unhappy with a costly and slow process that too often ignores in-house counsel,13 and has become infected with “Americanized” pre-hearing discovery.14 General criticisms, both in the United States15 and Europe,16 tell of “company-wide bans on arbitration clauses,”17 related to the business community’s “growing chorus of discontent” with the process.18 One commentator urges that arbitration must be repaired “by whatever means necessary.”19 Another suggests that empirical studies showing business satisfaction with arbitration20 have been reached only by turning a “blind eye to reality.”21 13

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17 18

19 20

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See, e.g., Jean-Claude Najar, A Pro Domo Pleading: Of In-House Counsel, and their Necessary Participation in International Commercial Arbitration, 25 J. Int’l Arb. 623 (2008). A fine survey of in-house perspectives was presented by Carla Powers Herron to the Institute for Transnational Arbitration on June 17, 2009, in Dallas. See Roger P. Alford, The American Influence on International Arbitration, 19 Ohio St. J. on Disp. Resol. 69 (2003); Bernard Audit, L’Américanisation du droit, 45 Archives de Philosophie du Droit 7 (2001). The Academic Director of the Straus Institute for Dispute Resolution at Pepperdine University, wrote that “criticism of American arbitration is at a crescendo” due to extensive discovery and highly contentious advocacy. Thomas J. Stipanowich, Arbitration and Choice: Taking Charge of the New Litigation, 7 DePaul Bus. & Com. L. J. 1, 3 (2009). See, e.g., Paul Hobeck et al., Time for Woolf Reforms in International Construction Arbitration, 2008 Int’l Arb. L. Rev. 84 (asserting that “a growing chorus of critics has begun to question the role of arbitration in plant construction” and suggesting an equivalent of the 1999 civil procedure reforms in England, including more intensive (“front loaded”) pleadings at an earlier stage and more aggressive case management by arbitrators). Michael McIlwrath, Ignoring the Elephant in the Room: International Arbitration: Corporate Attitudes and Practices, 2(5) World Arb. & Med. Rev. 111 (2008). Peter Morton, Can a World Exist Where Expedited Arbitration Becomes the Default Procedure?, 25 Arb. Int’l (forthcoming 2009). The author admits that the desired rapidity will require the “buy-in” of all parties. Some observers may see the noun at the middle of that phrase (“all”) as holding the key to why quick proceedings can be problematic. Jean-Claude Najar, Inside Out: A User’s Perspective on Challenges in International Arbitration, 25 Arb. Int’l 515 (2009). One widely discussed study, cosponsored by a major accounting firm and a London university, suggested that 86 of the participating corporate counsel are “satisfied” with international arbitration. See PriceWaterhouseCoopers & School of International Arbitration, International Arbitration: A Study into Corporate Attitudes and Practices (Queen Mary, University of London 2008), with commentary by Loukas Mistelis & Crina Mihaela Baltag, Trends and Challenges in International Arbitration: Two Surveys of InHouse Counsel of Major Corporations, 2(5) World Arb. & Med. Rev. 83 (2008). The full statistical report is available at 20(1) ICC Bulletin (2009). Michael McIlwrath, Ignoring the Elephant in the Room: International Arbitration: Corporate Attitudes and Practices, 2(5) World Arb. & Med. Rev. 111, 113 (2008), focusing particular concern on the methodology of the PriceWaterhouseCoopers study. Mr. McIlwrath also facilitated discussion of similar ideas in the CPR-sponsored “IDN” (International Dispute Resolution) podcast of November 21, 2008, where he interviewed Mr. Volker Mahnken, senior counsel of Siemens A.G., with respect to his views on the

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Suggested remedies differ. Some writers urge a “town elder” model harking back to simpler days.22 Others propose expedited proceedings,23 a sole arbitrator rather than a three-member tribunal,24 or more attention to dispute resolution in contract drafting.25 Institutional guidelines outline ways to accommodate the rival elements inherent in the proper conduct of business arbitration.26 B. The “Peace Treaty” Subtext On their face, many comments about the cost of arbitration cost sound like general exhortations to try diplomacy before filing claims or to demonstrate proportionality in document production orders. Most thoughtful professionals can only applaud consideration of such cost-saving measures. Indeed, arbitration’s contractual nature invites procedural innovation aimed at reconciling truth-seeking with other litigation goals such as efficiency. Some critiques, however, travel with a subtext that downgrades the type of truthseeking that has long served to promote both predictability and fairness in economic relationships. One camp of commentators posits that commercial litigants seek prin-

22

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25

26

perceived dissatisfaction among consumers of international construction arbitration services. See David W. Rivkin, Towards a New Paradigm in International Arbitration: The Town Elder Model Revisited, 24 Arb. Int’l 375 (2008). Mr. Rivkin suggests a return to basics, in which an arbitrator would “simply listen to both sides of the dispute and then issue his decision,” asking for additional information “only as necessary.” Id. at 375. The devil in the detail, of course, lies in the “as necessary” caveat in this “Town Elder” formula: few arbitrators, of course, see themselves as requesting “unnecessary” information. Peter Morton, Can A World Exist Where Expedited Arbitration Becomes the Default Procedure?, 25 Arb. Int’l (forthcoming 2009). See also Michael McIlwrath & Roland Schroeder, International Arbitration: In Dire Need of Early Resolution, 74 Arb. 3 (2008). See Jennifer Kirby, With Arbitrators, Less Can Be More: Why the Conventional Wisdom on the Benefits of Having Three Arbitrators May Be Overrated, 26 J. Int’l Arb. 337 (2009) (arguing that three arbitrators may not add enough to the legitimacy of international arbitration to outweigh what the author of the article perceives as the added inefficiency). See Thomas J. Stipanowich, Arbitration and Choice: Taking Charge of the New Litigation, 7 DePaul Bus. & Com. L.J. 383 (2009). Stipanowich to some extent echoes suggestions made in the 2002 Freshfields Lecture. See William W. Park, Arbitration’s Protean Nature, 19 Arb. Int’l 279 (2003), reprinted in Arbitration Insights: Twenty Years of the Annual Lecture of the School of International Arbitration 331, 360 (Julian D.M. Lew & Loukas A. Mistelis eds., 2006). See ICC Commission, Techniques for Controlling Time and Costs in Arbitration, ICC Publication No. 843 (2007); see also U.N. Comm’n on Int’l Trade Law [UNCITRAL], Notes on Organizing Arbitral Proceedings (1996); The College of Commercial Arbitrators: Guide to Best Practices in Commercial Arbitration (Curtis E. von Kann et al. eds., 2006) (prepared by the American College of Commercial Arbitrators from a prior draft presented to the CCA Meeting in Washington, D.C., on October 30, 2004.).

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

cipally an end to hostilities so they can get on with their business. A recent listing of arbitral virtues omits any mention of correct awards,27 while other commentaries seem to downplay the need for arbitrator access to information.28 They suggest that the parties want, not so much an accurate decision, but simply a decision—full stop—made by someone who dictates a sort of peace treaty rather than issues an award reflecting the truth of the matter.29 To test the hypothesis that peacemaking is what litigants want, one might imagine a corporate counsel telling her boss how a joint-venture partner has breached its agreement, resulting in one hundred million Euros in lost profits. “We have a good case on the law and the facts,” she advises her boss, and moreover, she explains, she suspects that the board minutes of the joint-venture entity (now controlled by the other side) will prove manipulation of that company’s trading practices. Arbitration is then brought, and the proceedings go forward with great speed. The tribunal denies most requests for pretrial information exchange, including the joint venture’s record book of its board minutes. Apparently, the arbitrators had heard the general counsel give a speech about the downside of too much information. The arbitrators spend their deliberations cracking jokes and playing video games, rather than studying testimony and legal authorities. The award denies the claimant any recovery and bids everyone good luck in the future. A career adjustment for this corporate lawyer soon follows. It seems that her boss did not want an end to hostilities at the expense of defeat, at least not in circumstances in which the company had a good case;30 the rougher form of justice might do if the case were less certain. 27

28 29

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See, e.g., Najar, supra note 19. After cataloguing the perceived defects of international arbitration today, the author concludes, “By whatever means necessary, arbitration needs to be repaired, to be returned to its simple foundations—speed, cost efficiency, and userfriendliness.” In his introduction, Mr. Najar defines the “purpose” of international arbitration as “cost efficiency, speed, and user-friendliness.” Reference to a factually accurate or legally correct award seems notably absent from the catalogue of arbitration’s objectives or goals. At one arbitration symposium, a speaker garnered considerable applause by declaring that what in-house counsel want is simply for arbitrators “to impose a solution that will get the parties out of their mess”—full stop. Address at the Swiss Arbitration Association Annual Conference: The Search for Truth in Arbitration (Feb. 6, 2009) [hereinafter Conference]. See Thomas J. Stipanowich, Arbitration: The New Litigation, 2010 U. Ill L. Rev 1 (discussing “think slicing”). See Conference, supra note 27. For a thoughtful consideration of the contrast between truth-seeking and peace-making, see generally Mirjan R. Damaška, The Faces of Justice and State Authority 122-23 (1986) (suggesting that a legal process aimed at maximizing dispute resolution as such cannot simultaneously aspire to maximize accurate fact-finding). Indeed, one constant of international arbitration practice lies in the basic profile of the individuals who tend to be sought as arbitrators. Litigants inevitably focus on intelligence and integrity, both of which matter significantly if truth-seeking remains the goal. Never has a lawyer called the author to ask for recommendation of arbitrators who were dull-

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Like humanity in general, lawyers tend to react to events mindful of their most recent bad experience on point, forgetting the specters of other unattractive alternatives. On some occasions, counsel chafe that victory escaped them because arbitrators refused to order production of that extra document that would have provided the critical evidence. At other times, lawyers fulminate against the injustice and burden of having to scour their files for irrelevant pieces of paper.31 In this connection, one irony of the current debate is that the same lips that complain of legalized arbitration often lament aberrational or “split the difference” awards,32 reminiscent of King Solomon’s interim ruling between the proverbial Jerusalem mothers.33 Some literature even suggests that arbitrators make unprincipled decisions to attract business,34 although no empirical data based on either “win rates”35 or quantity of damages in awards36 supports such conclusions.

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ards unable to look past smoke and mirrors designed to hide poor arguments and weak positions. Likewise, a winning award might be upset by a court challenge, causing the victor’s counsel to lament the lack of finality in arbitration. In another case, a disappointing award might be met with realization that full appeal on the legal merits does not generally exist in arbitration. For analysis of the real impact of “knucklehead awards,” see Christoher R. Drahozal & Quentin R. Wittrock, Is There a Flight from Arbitration?, 37 Hofstra L. Rev. 71 (2008) (finding little evidence that franchisors in fact use arbitration less). See also Christopher R. Drahozal, Busting Arbitration Myths, 56 U. Kan. L. Rev. 663 (2008); Christopher R. Drahozal, Arbitration Costs and Forum Accessibility, 41 J. L. Reform 813 (2008). In the Biblical child-custody dispute, one woman accused another of stealing her baby. The king called for a sword so the child might be divided and half awarded to each disputant. When one woman abandoned her claim in order to save the infant, Solomon recognized the real mother and granted her custody, leaving “all Israel in awe of the king’s wisdom.” 1 Kings 3:23-28. See Armendariz v. Foundation Health Psychare Services, 6 P.3d 669, 693 (Cal. 2000) (asserting that courts and juries are “more likely to adhere to the law and less likely than arbitrators to ‘split the difference’ between the two sides thereby lowering damages”), quoted in Richard Posner, How Judges Think 128-29 (2008). For similar skepticism about arbitrator accuracy, see, for example, Alon Klement & Kvika Neeman, Does Private Selection Improve the Accuracy of Arbitrators’ Decisions, Law and Economics Workshop (University of California, Berkeley), Paper 19, Spring 2009; Alon Klement & Daphna Kapeliuk, Contractualizing Procedure (Dec. 31, 2008), available at http://ssrn.com/abstract=1323056. A claimant awarded 100 on a 5 million claim “wins” in the sense of receiving something. Yet the respondent would likely be the happier of the two parties. One study of investment awards found that investors brought treaty-based claims for, on average, 343 million, but collected, on average, only 10 million. Susan Franck, Empirically Evaluating Claims about Investment Treaty Arbitration, 86 N.C. L. Rev. 1, 49-50, 64 (2007). Employment and consumer controversies present concerns different from those present in business-to-business cases. It may be that the cost of legal counsel for court cases precludes the less wealthy from starting litigation except if attorneys take matters on a contingency fee. See Theodore Eisenberg & Elizabeth Hill, Arbitration & Litigation of

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

C. The Arbitrator’s Mission No one should be surprised that arbitration implicates goals other than accuracy or that these aims require limits on testimony and discovery requests. Nothing new resides in balancing truth-seeking against values that further public goals other than adjudicatory precision. Classic tradeoffs include professional secrecy, evidentiary exclusion rules, and the civil jury system.37 What remains at stake in the debate are the shades of gray in balancing truthseeking against added time and expense in arbitration. Any account of international arbitration remains inadequate if it denigrates the aspiration to accuracy—or shifts an arbitrator’s aim from a correct award to splitting the baby or dictating quick peace treaties. Particularly for international transactions, arbitration often justifies itself by reference to a more level playing field, not speed and economy.38 In a stubbornly heterogeneous world lacking a supranational judiciary with mandatory jurisdiction, arbitration enhances a relative measure of adjudicatory neutrality, which in turn promotes

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Employment Claims: An Empirical Comparison, 58 J. Disp. Resol. 44 (Nov. 2003-Jan. 2004) (looking at state and federal court trials as compared with AAA arbitrations). In non-civil rights disputes, higher paid employees (earning over 60 thousand per year) generally prevailed at greater rates (64) in arbitration than in state court (56). For lower paid employees, the win rate was 39. However, the size of the mean award was greater in court cases, at 462 thousand for courts compared with 211 thousand for higher paid employees in arbitration and 30 thousand for lower paid employees in arbitration. Looking to the median (rather than mean) award, the higher paid employees actually received more in arbitration (94 thousand) than in court litigation (68 thousand). A perceived lack of reliability in the U.S. jury system lies behind much of the domestic arbitration movement in the United States. Legal trustworthiness, however, may not be a jury’s main goal. One classic commentary on American society suggests that the principal function of the civil jury is public education rather than truth-seeking. Alexis de Tocqueville, De la démocratie en Amérique (1835 & 1840), Livre I, Deuxième Partie, Ch. VIII, Du jury aux Etats-Unis considéré comme institution politique. De Tocqueville writes, “Je ne sais si le jury est utile à ceux qui ont des procès, mais je suis sûr qu’il est très utile à ceux qui les jugent. Je le regarde comme l’un des moyens les plus efficaces dont puisse se servir la société pour l’éducation du peuple.” (“I do not know if the jury is useful for those who have lawsuits, but I am sure it is very useful for those who decide them. I see it as one of the most efficient means by which society can educate the people.”) Derived from visits to the United States in 1835 and 1840, these observations speak to early American exceptionalism. See also Oscar Chase, American Exceptionalism and Comparative Procedure, 50 Am. J. Comp. L. 277 (2002). Perception may be more significant than reality. One study found that in federal civil actions in the United States, foreigners actually fare better than domestic parties. See Kevin Clermont & Theodore Eisenberg, Xenophilia in American Courts, 109 Harv. L. Rev. 1122 (1996). An explanation for this perhaps counterintuitive finding lies in the fear of litigation bias that leads foreign litigants to settle rather than continue to judgment unless they have particularly strong cases.

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respect for shared ex ante expectations at the time of a contract or investment.39 A desire for confidentiality and expertise also play a role, as do apprehensions about xenophobia40 and civil juries.41 Litigants are obviously free to choose a mode of dispute resolution that ignores accuracy based on recourse to testimony and documents. They may draw straws, flip coins, roll dice, fight a duel, or consult the entrails of a disemboweled chicken. If not inclined toward augury, chance or combat, the parties can give someone a blank check to decide “in equity,” without reference to law. No lawyers are needed, whether external or in-house. Litigants might also take responsibility for their own fate by agreeing to settle. Mediation can facilitate settlement, particularly if arbitral or judicial backstops supply baselines from which to evaluate each side’s positions. Yet mediation, like negotiation, succeeds only if both sides agree to bury differences.42 If each side clings to peace on its own terms, reference to what the parties (plural) want will be meaningless. Arbitration, by contrast, imposes a binding decision when harmony proves impossible and thus implicates a more rigorous process for finding facts and law based on weighing testimony and documents. When differences are deep and complex, the process takes time. In some instances, the parties may tailor the procedural calculus to reflect protocols different from those by which national law balances speed and economy against the interest in accuracy. However, in disputes with a serious impact on corporate or

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41 42

An exaggerated articulation of this perspective (intentional, perhaps for entertainment) can be found in Jan Paulsson, International Arbitration Is Not Arbitration, 2 Stockholm Int’l Arb. Rev. 1 (2008) (construing the Brierley Memorial Lecture (May 28, 2008) and suggesting that international arbitration is to arbitration what sea elephants are to land elephants). One arbitration followed a 500 million Mississippi state-court verdict against a Canadian company for its breach of 980 thousand in burial insurance contracts and an exchange of funeral homes valued at 2.5 million. After a trial replete with xenophobic comments intended to inflame the jury and an appeal thwarted by a 625 million bond requirement, the investor brought an investor-state arbitration alleging discrimination and unfair treatment under Chapter 11 of the North American Free Trade Agreement (NAFTA), U.S.-Can.-Mex., Dec. 17, 1992, 107 Stat. 2057, 32 I.L.M. 289 (1993). Loewen Group v. United States, Award, ICSID Case No. ARB(AF)/98/3 (2003). See generally Jonathan Harr, The Burial, New Yorker, Nov. 1, 1999, at 70. Concern is often expressed that civil juries show undue sympathy to the “little guy” (consumer or employee) against the “big guy” (manufacturer, bank or boss). Noting that a decision to arbitrate shifts responsibility to a third party, Judge Schwebel speculates that mediation is rare for investor-state disputes because bureaucracies tend to shift rather than assume responsibility. Stephen M. Schwebel, Is Mediation of Foreign Investment Disputes Plausible?, 22 ICSID Rev. 237 (2007).

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

national welfare, intelligent litigants usually craft their rules with deference to the adage that one person’s delay is another’s due process.43 An agreement to end hostilities may cost less than arbitration, just as a train trip from London to Paris is cheaper and quicker than a flight from London to Hong Kong. If, however, the parties cannot agree to the shorter trip, they may have no option but to accompany each other on the longer and more costly voyage. In such circumstances, both will want a pilot who cares about taking the best route to the correct destination.44 III. Tools for Fact-Finding A. The Impact of Legal Culture Although differences in national procedure do exist,45 most modern legal systems show a core reliance on witness testimony, documentary exhibits, and expert opinion.46 This does not, however, mean that they agree on how to use these truth-seeking tools. Variations often derive from wrinkles of historical accident or different costbenefit analyses in weighing truth-seeking against other considerations.47 Even radi43

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The phrase has been attributed to James Landis, former Dean of Harvard Law School, in his Address to the Administrative Law Section of the American Bar Association (Aug. 7, 1961) (typescript available in the Harvard Law School Library). See Morton Horwitz, The Transformation of American Law, 1870-1960, at 244 (1992). A more controversial analogy might compare mediation to a dinner date and arbitration to a marriage. The casual date carries no commitment, with the couple free to go their separate ways if either finds the chemistry between them wanting, just as disputants may ignore a mediator’s suggestion. By contrast, deeper consequences attach to wedding vows and arbitration agreements, notwithstanding that subsequent annulment requests may be possible in each case. Of course, arbitral awards usually look more like divorce decrees than marriage certificates, but both carry a degree of somber finality. See, e.g., Siegfried H. Elsing & John M. Townsend, Bridging the Common Law-Civil Law Divide in Arbitration, 18 Arb. Int’l 59 (2002); Pierre A. Karrer, The Civil Law and Common Law Divide, 63 Disp. Resol. J. 72 (Feb./Apr. 2008); Andreas F. Lowenfeld, The Two-Way Mirror: International Arbitration as Comparative Procedure, 7 Mich. J. Int’l Legal Stud. 163 (1985); Luc Demeyere, Different Approaches to Procedures Under Common Law and Civil Law, 6 Schieds VZ 279 (2008). See Symposium, Truth and its Rivals: Evidence Reform and the Goals of Evidence Law, 49 Hastings L.J. 289 (1997), and, in particular, the contribution of Richard D. Friedman, Truth and Its Rivals in the Law of Hearsay and Confrontation, id. at 545. See also Richard M. Mosk, The Role of Facts in International Dispute Resolution, 302 Recueil des Cours 9 (2003); John Crook, Fact-Finding in the Fog: Determining the Facts of Upheavals and Wars In Inter-State Disputes, in The Future of Investment Arbitration (Catherine Rogers & Roger P. Alford eds., 2009); Terrence Anderson et al., Analysis of Evidence 289-314 (2d ed. 2005) (principles of proof and their exceptions). Such variations should not be surprising, given that different approaches to fact-finding appear even within relatively homogeneous legal systems. See Neil S. Hecht & William M. Pinzler, Rebutting Presumptions, 58 B.U. L. Rev. 527 (1978) (comparing presumptions that

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764

cal differences in practice sometimes present themselves as divergent paths to the same end.48 Under the Anglo-American model, lawyers do the heavy lifting in gathering and marshalling elements of proof, as well as questioning witnesses. Truth reveals itself in the crucible of vigorous exchanges among those with competing perspectives. This so-called “adversarial” system contrasts with the “inquisitorial” paradigm predominant in Continental Europe in which judges or arbitrators take a more proactive role in finding out what happened. Much international arbitration implicates some combination of the two approaches.49 Fact-finding is enhanced by self-interested litigants who are motivated to ferret out information. Notwithstanding that work falls on those with incentives to ignore some aspects of the story, it would be hard to imagine anyone other than counsel marshalling evidence for arbitration on a global basis. Yet a more inquisitorial style may commend itself during oral hearings, after the parties briefs have memorialized points of law and evidence. Rather than sitting passively while lawyers perform, arbitrators who engage in robust and direct dialogue with witnesses and counsel can stimulate the mental juices that help connect the analytic dots, at least if they studiously avoid conduct suggesting that they have prejudged the case or revealing their failure to read the papers. What starts as a culture clash might, after adjudicatory skirmishing, end up as legal cross-pollination, evolving into common litigation practice among practitio-

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control permissibility of inferences). A legal presumption—for example, that stamped letters put into mailboxes arrive in due course—might be rebutted by the alleged recipient’s testimony that he never received the letter. And a logical inference tracking the presumption about letters and mailboxes might support a finding that the letter arrived. See Fed. R. Evid. 301 (distinguishing between burden of coming forward with evidence and burden of persuasion). In Islamic law, the “debt verse” in Qur’an, ch. 2:282, provides, “If there are not two men [as witnesses in a debt dispute] let there be a man and two women . . . . If one of those women should mistake, the other of them will cause her to recollect.” Some scholars suggest that the rule, understandably perceived today as suggesting inferiority in female testimony, derives from concern for testimonial accuracy in Arabia during the seventh century, at a time when women were not involved in financial affairs. See generally Asghar Ali Engineer, Rights of Women in Islam 73-83 (2d ed. 2004); Ronak Husni & Daniel L. Newman, Muslim Women in Law & Society 37-39 (2007); Urfan Khaliq, Beyond the Veil?: An Analysis of Provisions of Women’s Convention in the Law as Stipulated in Shari’ah, 2 Buff. J. Int’l L. 1, 27-28 (1995-1996). In some instances, the procedural framework takes on the nature of a juridical language. Juxtaposing two ways to say “language” in French, Yves Derains makes this point forcefully in Langue et langages de l’arbitrage, Mélanges en l’Honneur de Pierre Tercier 789 (P. Guach et al. eds., 2008). French might be the tongue (la langue) for communication in an arbitration built on a procedural language (le language) drawn from American practice, such as party-dominated document production and a trial with testimony presented all at once. Words such as “witness” and “témoin” may prove false friends if evidence is presented by a party’s employee, who might lack the capacity to testify under French legal notions of what it means to present testimony.

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

ners of international arbitration.50 Much intellectual cross-pollination implicates legal practitioners and scholars who serve as worker bees, buzzing from symposium to symposium and from case to case, sharing views on how to resolve disputes or to set standards for testimony, document production, and ethics. Notable examples include the work of UNCITRAL on both arbitration rules and a Model Arbitration Law,51 as well as the International Bar Association instruments on conflicts-of-interest52 and evidence,53 and the American College of Commercial Arbitrators compendium of “Best Practices” for arbitral proceedings.54 Built on arbitral lore memorialized in treatises and learned papers, the “soft law” of procedure operates in tandem with the firmer norms imposed by statutes, treaties, and institutional rules. Although nothing prevents litigants from overriding these principles, they usually produce far-reaching effects for the simple reason that post-dispute party agreement proves difficult or impossible. Rightly or not, the guidelines enter the canon of sacred instruments to be cited faute de mieux, to fill gaps in institutional rules and national statutes.55 50

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54 55

For a divergent perspective that castes cross-fertilization in economic matters as cultural domination by norm-setting experts from developed countries, see Catherine Kessedjian, Culture et droit, L’influence de la culture sur le droit international et ses développements, in Culture and International Law (Paul Meerts ed., 2008): “Qui dit concurrence, dit un vainqueur et un vaincu: donc une domination.” (“So, whoever says competition says victor and vanquished: thus domination.”) The United Nations Commission on International Trade Law (UNCITRAL) promulgated its Arbitration Rules in 1976, while the Model Law on International Commercial Arbitration dates back to 1985, although it was amended in 2006. International Bar Association Guidelines on Conflicts of Interest in International Commercial Arbitration, approved by the IBA Council on May 22, 2004, published in 9 Arb. & ADR (IBA) 7 (Oct. 2004). The IBA Guidelines present concrete enumerations of fact patterns that may give rise to justifiable doubts on arbitrator independence or impartiality, and thus disqualify arbitrators. The non-waivable red list includes a financial interest in the outcome of the case, while other fact patterns (such as a relationship with counsel) may be ignored by mutual consent. The orange list covers past service as counsel for a party, which the parties are deemed to have accepted if no objection is made after timely disclosure. The green list enumerates cases such as membership in the same professional organization that require no disclosure. See also Markham Ball, Probity Deconstructed: How Helpful, Really are the New IBA Guidelines on Conflicts of Interest in International Arbitration, 15 World Arb. & Med. Rev. 333 (2004); Jan Paulsson, Ethics and Codes of Conduct for a Multi-Disciplinary Institute, 70 Arb. 193, 198-99 (2004). See IBA Working Party, Commentary on the New IBA Rules of Evidence in International Commercial Arbitration, [2000] Bus. Law Int’l. (No. 2), at 14; see also Michael Bühler & Carroll Dorgan, Witness Testimony Pursuant to the IBA Rules of Evidence in International Commercial Arbitration, 17 J. Int’l Arb. 3 ((2000). College of Commercial Arbitrators, Guide to Best Practices in Commercial Arbitration (Oct. 2005).  See William W. Park, Three Studies in Change, in Arbitration of International Business Disputes 45 (2006); William W. Park, Arbitration’s Protean Nature, 19 Arb. Int’l 279 (2003).

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Cross-pollination is not always a happy matter, however. In particular, Continental lawyers are often frustrated with wrangling over privilege, pre-hearing oral depositions, and objections to evidence.56 Not all U.S. legal traditions have spurned controversy, however. International arbitration now generally admits the practice, long favored in the United States,57 of lawyers preparing witnesses by discussing the case in prehearing interviews.58 Indeed, the Swiss Rules of International Arbitration now explicitly sanction the practice.59 Just as international arbitration has been “Americanized,” arbitration in the United States has to some extent begun to reflect the European emphasis on written testi-

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Not all Continental lawyers, however, necessarily disapprove of U.S. practices. In a provocative article exploring why civil law arbitrators sometimes apply common law procedures, an eminent Zürich attorney suggested reasons to appreciate Anglo-American litigation techniques such as cross examination and document production. See Markus Wirth, Ihr Zeuge, Herr Rechtsanwalt! Weshalb Civil-Law-Schiedsrichter Common-LawVerfahrensrecht anwenden, 1 Schieds VZ (2003). One Continental lawyer offers three explanations for the differences between procedure in common law and civil law: (i) the role of oral evidence in common law; (ii) the inductive nature of legal reasoning in common law, and (iii) pre-trial discovery in the common law. See Luc Demeyere, Different Approaches to Procedures under Common Law and Civil Law, 6 Schieds VZ 279 (2008). American lawyers would be considered lacking in diligence if they failed to rehearse their witnesses about the type of questions to be asked, which is seen as a way to keep the witness from being misled or surprised, arguably making the testimony more accurate. See Wigmore on Evidence § 788 (3d ed. 1940); Thomas A. Mauet, Pretrial (4th ed. 1999); see, e.g., In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 621 (D. Nev. 1998). See generally George von Segesser, Witness Preparation, 20 ASA Bull. 222 (2002). The normal Swiss practice would be to the contrary. See, e.g., Geneva, art. 13 Us et coutumes de l’ordres des avocats: “L’avocat doit s’interdire de discuter avec un témoin de sa déposition future et de l’influencer de quelque manière que ce soit.” (“The attorney must abstain from discussing with a witness his future testimony and from influencing him in any way.”) German lawyers are likewise prohibited from interviewing witnesses out of court except in special circumstances. See John H. Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823, 834 (1985); John H. Langbein, Trashing The German Advantage, 82 Nw. U. L. Rev. 763 (1988). Swiss Rules of International Arbitration, Chambers of Commerce and Industry of Basel, Bern, Geneva, Lausanne, Lugano, and Zürich (2004). Article 25(6) provides that it shall “not be improper for a party, its officers, employees, legal advisors or counsel to interview witnesses, potential witnesses or expert witnesses.” This rule tracks Article 4(3) of the 1999 International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules of Evidence). See also Nathalie Voser, Best Practices: What Has Been Achieved and What Remains To Be Done, in Best Practices in International Arbitration 1, ASA Bulletin, Special Series No. 26 (Markus Wirth ed., 2006). Dr. Voser writes: “It is traditionally a violation of ethical rules for an attorney to contact a witness beyond establishing whether or not a person should be nominated as witness.” Id. at 2. Nevertheless, she concludes that in the interest of equal treatment, it is generally accepted today that lawyers will have previous contact with their witnesses before arbitration begins, at least “to a certain extent.”

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

mony and reasoned awards.60 Perhaps the most striking examples can be found in the new American standard for arbitrator ethics.61 Traditionally, party-nominated arbitrators in the United States were considered partisan and thus permitted ex parte communications with their appointers.62 Ultimately, however, American arbitration came into line with global standards,63 imposing a presumption of independence for all arbitrators, regardless of how they were selected.64 60

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The American Arbitration Association traditionally discouraged reasoned awards, on the assumption that reasons provided a hook on which an unhappy loser might hang a challenge to an award. As late as 1987, the President of the American Arbitration Association suggested to arbitrators that “[w]ritten opinions can be dangerous because they identify targets for the losing party to attack.” Robert Coulson, Business Arbitration: What You Need to Know 29 (3d ed. 1987). By contrast, reasoned awards have been the norm for international arbitration. The mandate for reasoned awards can be found, not only in the rules of international institutions, see, e.g., ICSID Convention Art. 52(1) (e), ICC Rules Art. 25(2), and LCIA Rules Art. 26.1, but also in the public-law tradition elaborated a century ago and reflected in Article 52 of the 1899 Convention for the Pacific Settlement of International Disputes and Article 79 of the 1907 Convention for the Pacific Settlement of International Disputes. See Dev Krishan, Reasoning in International Adjudication (forthcoming 2010). Even in the United States, however, the absence of reasons has not always been an unalloyed good. In one case, a federal court stated that an arbitrator’s failure to give reasons might reinforce suspicions of “manifest disregard of the law.” Halligan v. Piper Jaffray, 148 F. 3d 197 (2d Cir. 1998). See generally Ben Sheppard, A New Era of Arbitrator Ethics in the United States, 21 Arb. Int’l 91 (2005); Paul D. Friedland & John M. Townsend, Commentary on Changes to the Commercial Arbitration Rules of the American Arbitration Association, 58 Disp. Resol. J. 8 (Nov. 2003-Jan. 2004); Paul D. Friedland & John M. Townsend, Commentary on Changes to the Commercial Arbitration Rules of the American Arbitration Association, 58 Disp. Res. J. 8 (Nov. 2003-Jan. 2004); David Branson, American Party-Appointed Partisan Arbitrators—Not The Three Monkeys, 30 U. Dayton L. Rev. 1 (2004). In domestic (rather than international) arbitration, it was presumed that arbitrators nominated by one of the parties were partisan unless the parties had explicitly agreed otherwise. See 1977 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes, Canon VII. The general alignment of American and global standards does not mean that all peculiarities in ethical practices cease to exist, either among institutions or among states. See, e.g., Credit Suisse First Boston Corp. v. Grunwald, 400 F. 3d 1119 (9th Cir. 2005), which involved the broad and controversial California Ethical Standards for Neutral Arbitrators. In Grunwald, which arose under the rules of the National Association of Securities Dealers, the California standards were found to be preempted by the 1934 Securities Exchange Act. Under the 2004 Arbitral Code of Ethics, adopted jointly by the American Bar Association and the American Arbitration Association, a party-nominated arbitrator may be non-neutral only if so provided by the parties’ agreement, the arbitration rules or applicable law. See 2004 AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes, Preamble (“Note on Neutrality”) and Canon X. Moreover, the American Arbitration Association domestic commercial arbitration rules, effective July 2003, established a presumption of neutrality for all arbitrators. Rule 18 (applicable unless there has been agree-

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B. Conflict, Convergence, and Proportionality 768

Seeking an illustration of how cultural baselines affect truth-seeking, it would be difficult to find one better than the oft-maligned American style of discovery.65 Likewise, one would be hard-pressed to suggest a more forceful example of procedural cross-pollination than the compromise reached in guidelines that balance risks and benefits of document requests. In many countries, lawyers simply provide opposing counsel with advance copies of exhibits on which they intend to rely. Such exchange aims to avoid undue surprise. Conversely, practice in the United States66 and England67 has evolved to require parties to produce, either spontaneously or upon request, broad categories of disputerelated material that may be adverse to their own case.68 Like a vacuum cleaner, document production often sucks up bits of paper that may yield information reasonably calculated to lead to the discovery of admissible evidence.69

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ment otherwise) prohibits ex parte communication with an arbitrator except (i) to advise a party-nominated candidate of the nature of the controversy; or (ii) to discuss selection of a presiding arbitrator. Rule 12(b) requires party-nominated arbitrators to meet general standards of impartiality and independence absent agreement otherwise. See, e.g., Robert H. Smit & Tyler B. Robinson, E-Disclosure in International Arbitration, 24 Arb. Int’l 105 (2008); Klaus Sachs, Use of Documents and Document Discovery: “Fishing Expeditions” Versus Transparency and Burden of Proof, 1 Schieds VZ 193 (2003); see also Gabrielle Kaufmann-Kohler & Philippe Bärtsch, Discovery in International Arbitration: How Much is Too Much?, 2 Schieds VZ 13 (2004); Peter Griffin, Recent Trends in the Conduct of International Arbitration: Discovery Procedures and Witness Hearings, 17 J. Int’l Arb. 19 (2000); George A Lehner, The Discovery Process in International Arbitration, 16 Mealey’s Int’l Arb. Rep. 1 (2001). For comparative studies of the alleged costs and benefits of discovery, see Julius Levine, Discovery (1982) (comparing England and the United States); and Arielle Elan Visson, Droit à la Production de Pièces et Discovery (1997) (comparing England and Switzerland). See Rules 26-37 and Rule 45 of the Federal Rules of Civil Procedure, particularly Rule 26(b)(1). Sanctions for non-compliance (Rule 37) include preclusion of introduction of the evidence, striking pleadings. and fines for contempt. For litigation in the United States, as well as for some American arbitration, case preparation also implicates oral pretrial depositions of the other side’s witnesses. See generally Thomas Mauet, Pretrial (4th ed. 1999); John Beckerman, Confronting Civil Discovery’s Fatal Flaws, 84 Minn. L. Rev. 505 (2000). See 1998 English Civil Procedure Rules, Part 31 (Disclosure and Inspection of Documents), which requires automatic production of certain categories of documents including (in Section 31.6 (1) of the CPR) both documents on which a party relies and “documents which adversely affect [its] own case or support another party’s case.” While discovery requests usually implicate the opposing party, they may also aim at nonparties with information relevant to the dispute. See Alan Scott Rau, Evidence and Discovery in American Arbitration: The Problem of Third Parties, 19 Am. Rev. Int’l Arb. 1 (2008). The origins of this approach derive from the so-called “Peruvian Guano Test” which fixed the universe of potentially discoverable documents to include whatever might lead to a

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

In this regard, American lawyers often appear to their foreign colleagues as asserting a right to shoot first and aim later, asking how they are to prove a claim without the other side’s documents. Continental lawyers reply that evidence should be collected before claims are filed, unless of course they themselves want information to benefit a client, at which point American legal imperialism becomes the “emerging trend” in arbitration. A rule that requires the other side to produce documents adverse to its case provides a perspective of the relative strengths and weaknesses of each side’s position. This may lead to settlement and sharper definition of issues, and it of course enhances the chances that the arbitrator will learn what truly happened.70 Document production comes at greater expense, however. Some equilibrium must exist between the accuracy furthered by document production and the need for sensitivity to its cost in time and money. On a net basis, more exchange is not necessarily better. In international arbitration, the different cultural starting points have produced an accommodation in which truth-seeking will be tempered by the objectives of speed and economy. The 1999 International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules of Evidence) adopt a compromise that might be seen as “rifle shot” rather than “scatter gun” approach. Requests must identify either a single document or a narrow and specific category of documents, coupled with a description of their relevance and materiality to the outcome of the case.71 The American Arbitration Association has memorialized an analogous approach with information exchange guidelines that apply in all international cases administered by its affiliate, the International Centre for Dispute Resolution.72

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“train of inquiry” to advance the party’s own case or damage the case of the adversary. See Compagnie Financière du Pacifique v. Peruvian Guano Co., 11 Q.B.D. 55 (1882). The so-called Woof Reforms that came into effect in 1999 curtail some of the entitlement to documents based simply on the fact that they lead to a “train of inquiry” toward evidence. For arguments in favor of American discovery practices in arbitration, see Pedro J. Martinez-Fraga, The American Influence on International Commercial Arbitration (2009); and Paul B. Klaas, Depositions: An Apologia, 25 Arb. Int’l 553 (2009). IBA Rules of Evidence § 3(a)-(b) (1999). See Guidelines for Information Exchanges in International Arbitration, American Arbitration Association (International Centre for Dispute Resolution) (May 8, 2008) (clarifying that arbitrators have “the authority, the responsibility and in certain jurisdictions, the mandatory duty” to manage proceedings so as provide simpler and less expensive justice). See generally John Beechey, The ICDR Guidelines for Information Exchange in International Arbitration, Dispute Res. J. 85 (Aug./Oct. 2008). In January 2009, the CPR (formerly Center for Public Resources) issued its own list of precepts for information exchange, which apply to all commercial arbitration, not just international cases. See International Institute for Conflict Prevention & Resolution, CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration (2009).

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Admittedly, assumptions about what discovery is “normal” will affect the costbenefit calculation in determining what is relevant or material. Yet the wind has definitely blown away from both the minimalist and the expansionist approaches, with notions of proportionality informing choices on when burdens of production bear a reasonable relationship to the degree of expected enlightenment. C. The Role of Complexity The more complicated a dispute, the more challenging the task of fixing the right case management tools. If Jill claims that Jack sold her a defective automobile, the calculus of truth-seeking rests on testimony from individuals who helped Jill get the car started. But few international disputes pose a single issue with such pristine purity. So let us imagine a more realistic scenario. The owner of an American fishing fleet claims for lost profits and injury to crew members due to the explosion of ship engines purchased from a European manufacturer. As the arbitrator begins to decorticate the controversy, one obvious issue is whether the engine failure resulted from poor European workmanship or sloppy American maintenance. What law should determine whether the tribunal has jurisdiction to hear claims for bodily injury? Should hearings be bifurcated to address the jurisdictional question first? Does contractual limitation of liability cover some claims but not others? What theory determines quantum of damages? How does the arbitrator respond to disagreement on whether briefs should be simultaneous or sequential? How much pretrial document production should be ordered? Should oral depositions be directed for crew members or subpoenas issued to third parties with information on maintenance? Do claims of attorney-client privilege shield some communications from production? Does privilege depend on whether the document was created in the United States (where communications with in-house counsel may be privileged) or in Switzerland (where such communications are not)? Should experts in areas such as engineering, accounting. or damages be examined together or separately?73 In such arbitrations, proper case management requires closer sensitivity to the counterpoise between finding the truth about liability and damages, on the one hand, and avoiding undue cost and delay, on the other. The framework for truth-seeking in arbitration must be flexible enough to adapt to a myriad number of problems. Since things that go without saying often will go better having been said, it may be worthwhile at this point to mark the point by listing a few real-world situations that illustrate why arbitral truth-seeking is not always a simple matter. – An owner accuses a building contractor of deviating from good practice in forty-eight matters, ranging from silicon in the cement mix to termite protection

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Almost any job description might become the subject of expert testimony. In one case involving power plant construction in a developing country, each side called military officers and social workers (including a padre who testified for both sides) to opine on how the contractor should have reacted to guerilla activity that was interfering with work-site progress.

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

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for cables. What truth lies there in these claims? Do they give rise to the contractor’s liability? In a corporate acquisition, the seller allegedly misrepresents the transferred entity’s income by causing repairs to be capitalized over several years, instead of taken as expenses during the year incurred, thus arguably overstating the entity’s Earnings Before Interest Taxes Depreciation and Amortization. Was the accounting irregular, and, if so, do buyers have a right to rescind? Pursuant to a long-term supply contract, one side says that the other must adjust the price to account for changed circumstances. Learned professors differ about what the applicable law requires. Which legal expert’s report is more accurate? The purchaser of a bank, after taking possession, claims that the loan portfolio is not of the quality promised, and that deposits were less than expected. Is a rebate justified due to impairment of the assets and/or liabilities? An insurance company fails to reimburse a manufacturer for third party liabilities incurred in American tort litigation, suggesting that the company “knew or expected” that the insured product would cause injury. What did the policyholder know? A host state expropriates assets of an American oil company. What is the value of the confiscated property? How should quantum of loss be calculated? A buyer of natural gas argues that events of force majeure allow an escape from purchase obligations. What legal standard determines duty to perform?

In arbitrations with an international element, controversy also can arise over the procedurally right way to decide these complex matters.74 Even if parties agree in the abstract on what standards apply (for example, adopting the IBA Rules of Evidence), varying ideas of what is “reasonable” may divide those of different backgrounds on

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For an overview of such questions, see The Civil Litigation Process (Janet Walker ed., 6th ed. 2005); William W. Park, Three Studies in Change, in Arbitration of International Business Disputes 3 (2006). See also 2009 Austrian Arbitration Yearbook 482 (C. Klausegger, et al. eds., 2009), including Michael Kramer et al., Equal Treatment in Multi-Party Arbitrations and Specific Issue of Appointment of Arbitrators, in id. at 149; Laurence Shore & Delyan Dimitrov, The Public Interest in Private Dispute Resolution, in id. at 163; Michael Molitoris & Amelie Abt, Oral Hearings and the Taking of Evidence in International Arbitration, in id. at 175; Klaus Oblin, Hearsay and International Arbitration, in id. at 201; Stavros Brekoulakis, The Negative Effect of CompétenceCompétence: The Verdict has to be Negative, in id. at 237.

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matters such as the relationship between oral and written testimony,75 document production,76 electronic discovery77 or available remedies and damage calculations.78 IV. The Truth about Law A. Jura Novit Curia Many trees have been felled to make paper for articles on how to find facts, looking at topics from presentation of testimony to the role of depositions and discovery. Less attention has been paid to the arbitrator’s truth-seeking function with respect to legal norms.79 This gap is surprising on several counts. First, arbitral awards are not usually subject to review for legal error in the same way that lower court judgments are scrutinized in a hierarchical national legal system. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) lists nothing like mistake of law as a ground for non-recognition of a duly made award; and the Convention on the Settlement of Disputes Between States and Nationals of Other States (ICSID Convention) gives the parties no right to seek annulment for substantive legal

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ICC Institute World Business Law, Arbitration and Oral Evidence (L. Lévy & V.V. Veeder eds., 2005). Michael Hwang and Andrew Chin, Discovery in Court and Document Production in International Commercial Arbitration-Singapore, ICC Bulletin 2006 Special Supplement: Document Production in International Arbitration 33 (2006). Robert H. Smit & Tyler B. Robinson, E-Disclosure in International Arbitration, 24 Arb. 105 (2008); Electronic Disclosure in International Arbitration (David Howell ed., 2008); David J. Howell, Electronic Disclosure in International Arbitration (2009). See John Y. Gotanda, Damages in Private International Law, 326 Recueil des Cours 73 (2007); Mark Kantor, Valuation for Arbitration (2008); William W. Park, Framing the Case on Quantum, 2(4) World Arb. & Med. Rev. 59 (2009); ICC Institute World Business Law, Interest, Auxiliary and Alternative Remedies in International Arbitration (Filip De Ly & Laurent Lévy eds., 2008); ICC Institute World Business Law, Evaluation of Damages in International Arbitration (Yves Derains & Richard H. Kreindler eds., 2006). The International Law Association performed yeoman’s service on the topic. See International Law Association, Report on Ascertaining the Content of the Applicable Law in International Commercial Arbitration at the Rio de Janeiro Conference 851-52 (August 2008).

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

error as such.80 Arbitrators therefore bear a heavy burden to “get it right” on the law in the first place, for their mistakes cannot be corrected in an appellate chain.81 Second, the starting point for determining the applicable law may be problematic for arbitrators. National courts seek authority in choice-of-law principles of their own jurisdiction. By contrast, the genesis of adjudicatory power for international arbitration derives, not from any single legal system, but from the parties’ decision that a dispute not be decided by national courts. Consequently, if the parties have left lacunae, arbitrators may need to examine transnational norms elaborated in other arbitrations or in cases from several jurisdictions. Finally, arbitrators in international cases are prone to listen to testimony from legal experts offered by the parties themselves. Such a practice imposes itself if tribunals include members not trained in the contractually-designated law, as well as non-jurists such as engineers, accountants. or underwriters. Even after the applicable law has been determined, the calculus of duty may differ between judge and arbitrator. Judges bear direct obligations, not only to the parties, but to the citizens of their states, and they therefore respond, at times, to significant societal values that may trump private choices. Although responsible judges (like good scholars) will master existing authority before taking new directions, many traditions allow appellate judges to overrule precedent. No similar social engineering normally falls to arbitrators. As creatures of consent, arbitrators are law-appliers rather than law-makers and must show special fidelity to the litigants’ shared ex ante expectations as expressed in contract or treaty.82 Al80

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Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter New York Convention]; Convention on the Settlement of Investment Disputes Between States and Nationals of Other States art. 52, Mar. 18, 1964, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention]. Although allegations of “excess of authority” sometimes mask claims of mistake, most reviewing panels remain sensitive to the distinction. On second-guessing arbitrators, see generally William W. Park, Why Courts Review Arbitral Awards, in Liber Amicorum Karl-Heinz Böckstiegel 595 (Robert Briner et al. eds., 2001); and William W. Park, Jurisdiction to Determine Jurisdiction, in 13 ICCA Congress Series 55 (PCA, The Hague, 2007). On analogous issues in public arbitration, see generally W. Michael Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (1971). With respect to investor-state arbitration, see Thomas W. Walsh, Substantive Review of ICSID Awards, 24 Berkeley J. Int’l L. 444 (2006). Some statutes provide waivable appeal on points of law, see, e.g., 1996 English Arbitration Act, § 69, but as the exception rather than the rule. In the United States, parties may not even stipulate to appeal. See Hall Street v. Mattel, 128 S. Ct. 1396 (2008). In purely commercial arbitration, the parties’ agreement sets expectations. By contrast, for investor-state arbitration, expectations derive from treaty commitments to balance investor confidence and host-state welfare, with private contracts playing a role through “umbrella clauses” requiring observance of undertakings. In state-to state arbitration, expectations spring from intergovernmental accords, such as the recent Swiss-Libyan Agreement to resolve tensions from arrest of a Libyan diplomat in Geneva, which instructs the arbitrators to apply “relevant national laws, international conventions, international custom, as well as evidence of general practices accepted as law and the general

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though sensitive to public values,83 to the extent of, for example, rejecting complicity with illicit schemes84 and abusive procedures,85 arbitrators fix their eyes on existing legal norms in determining what the parties have a right to expect.86 Although the realms of fact and law intertwine,87 the distinction remains of profound significance. Controverted facts can remain stubbornly particular, requiring recourse to witnesses and exhibits, while the law by its nature possesses a generality that permits instruction by reading statutes and cases.88

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principles of law and courtesy recognized by civilized nations.” Each side designates a third-country arbitrator, the two of whom choose a chair, in default of which the International Court of Justice makes the selection. Agreement, Switz.-Libya, Aug. 20, 2009. One recollects the dictum in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 638 (1985), warning arbitrators to address “the legitimate interest” in enforcement of public law at the place of enforcement. The contract was governed by Swiss law, but the counterclaim implicated American statutory unfair competition counterclaims. Money laundering presents special temptations. A corrupt official might contract with a foreign entity controlled by accomplices, allowing contract default to lead to an “award” against the government followed by transfer of money into a bank account abroad. Careful arbitrators look for warning signs of fake arbitrations, including entities not in existence at contract signature. See Gulf Petro Trading Co. v. Nigerian National Petroleum Corp., 512 F.3d 742 (5th Cir. 2008); Thomas Walsh, Collateral Attacks and Secondary Jurisdiction in International Arbitration, 25 Arb. Int’l 133 (2009). In one recent California case, a settlement of sexual harassment claims involved payment to the employee who accepted sham arbitration with an “award” in the company’s favor. Nelson v. American Apparel, Inc., No. B205937, 2008 WL 4713262 (Cal. Ct. App. Oct. 28, 2008). While arbitrators may have less room to maneuver than appellate courts relative to abandoning substantive precedents as outmoded, in procedural matters, arbitrators may possess more room to innovate. With respect to strict rules of evidence or document production, the parties may well want less procedural formality than in court. Such reduced formalism does not mean lack of fundamental fairness but rather that the arbitrator can provide a measure of procedural tailoring in response to the litigants’ request for a more streamlined process. In Vargas v. Insurance Co. of North America, 651 F.2d 838 (2d Cir. 1981), an aviation policy covered accidents “within the United States of America,” and the insured died while traveling between two points of the United States (New York and Puerto Rico), bringing to mind a canon of construction (contra proferentem), requiring ambiguities to be resolved against the drafters, which has since been excluded in many liability policies. Cf. Gerald Leonard, Rape, Murder, and Formalism: What Happens When We Define Mistake of Law?, 72 U. Colo. L. Rev. 507 (2001) (commenting on the well-known English rape case Regina v. Morgan, [1976] A.C. 182 (H.L)., where defendants’ mistaken belief that the victim consented might be a defense but not, arguably, because of their incorrect understanding of the law). In a sense, we cannot say what the law is for a given dispute until first knowing what law is in general. One working definition articulates law as an authoritative dispute-resolution process that includes principles for substantive conduct as well as procedures for deciding cases. Francophone jurists distinguish between “loi” and “droit” both of which are

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

This difference between law and fact plays itself out in the maxim jura novit curia: the judge knows the law.89 When applied by analogy to arbitrators,90 the principle facilitates the discovery of norms to connect specific events with general theories for relief, at least if arbitrators look beyond their prejudices.91 Of course, the fact that arbitrators may engage in direct study of legal authorities does not mean their award should contain surprises. Providing an opportunity for the litigants to comment on the law remains vital both to the arbitrator getting it right and to the parties’ sense of being treated justly. 92

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“law” for the Anglophone. A tyrant’s statute (“loi”) might be law in the sense of an enactment, while contrary to authoritative norms (“droit”) recognized from a more legitimate vantage point. English King George III may have made such a distinction for laws of his rebellious American colonies, as did the colonists for some British taxes before 1776. In England, foreign law will normally be proved as a question of fact. Dicey, Morris & Collins on The Conflict of Laws 255. (Lawrence Collins et al. eds., 14th ed. 2006). In contrast, Rule 44.1 of the Federal Rules of Civil Procedure provide that courts, in determining foreign law, “may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.” For a case where the principle became relevant, see, for example, Ecuador v. ChevronTexaco Corporation, 296 Fed. Appx. 124 (2d Cir. 2008), where an alleged arbitration commitment with a predecessor entity required consideration of Ecuadorian law. Similar state-law principles include N.Y.C.P.L.R. 4511 and Mass. Gen. Laws ch. 223, § 70 (directing courts to take judicial notice of foreign law). See Gabrielle Kaufmann-Kohler, Iura Novit Arbiter: Est-ce bien raisonnable? Réflexions sur le statut du droit de fond devant l’arbitre international, in De Lege Ferenda: Etudes pour le Professeur Alain Hirsch 71 (A. Héritier Lachat & L. Hirsch eds., 2004); Gabrielle Kaufmann-Kohler, The Arbitrator and the Law, 21 Arb. Int’l 631 (2005); Julian D.M. Lew, Proof of Applicable Law in International Commercial Arbitration, in Festschrift für Otto sandrock 581 (K.P. Berger et al. eds., 2000). Instances where eminent judges and arbitrators simply presume a conclusion are not hard to find. See Petroleum Development (Trucial Coast) Ltd. and the Sheikh of Abu Dhabi, 1 Int’l & Comp. L.Q. 247 (1952), where Lord Asquith of Bishopstone admitted that the applicable system of law was prima facie that of Abu Dhabi, yet then added, “But no such law can reasonably be said to exist. The Sheikh administers a purely discretionary justice with assistance of the Koran; and it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments.” See generally Ibrahim Fadlallah, Arbitration Facing Conflicts of Culture, 25 Arb. Int’l 303 (2009). The rule that parties must have a chance to comment on applicable law was accepted by the Swiss Tribunal fédéral in Urquijo Goitia v. Da Silva Muñiz (No. 4A 400/2008, Ire Cour de droit civil, Feb. 9, 2009). A fee claim by a soccer player’s agent was rejected by the Fédération International de Football Association (FIFA) in a decision upheld by the Court of Arbitration for Sport in Lausanne. On the need for exclusive agents to show a causal link between their activity and the player’s employment, the tribunal relied on a law that neither side had mentioned. The award was vacated for violation of the right to be heard. Swiss LDIP, art. 190(2)(d).

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B. Transnational Norms 1. Between Substance and Procedure On the substantive merits of a dispute, arbitrators in commercial disputes usually apply a legal system chosen by the parties.93 A privately-negotiated commercial loan agreement will recite that it is to be construed according to the law of England or an insurance policy might state that it shall be interpreted under New York law. By contrast, an expropriation claim will be decided under the terms of a bilateral investment treaty in addition to whatever other principles of international law might be found relevant.94 By contrast, for matters of pure procedure, such as briefing schedules or time allocation at hearings, arbitrators are generally expected to exercise a wide discretion.95 Aside from treating the parties fairly, arbitrators usually fill procedural interstices by recourse to their experience and guidelines gleaned from general practice.96 93

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If the parties fail to select an applicable law, few general rules tell arbitrators how to go about the task. Approaches include (a) conflicts principles they consider “applicable” (English Arbitration Act section 46 and UNCITRAL Model Law Article 28); (b) rules they deem “appropriate” (“règles que [le tribunal] estime appropriées”) ( French NCPC Article 1496); or (c) the law “most closely connected” with the action (“les liens les plus étroits”) (Swiss LDIP Article 187). Article 42 of the ICSID Convention provides for decision pursuant to such rules of law as may be agreed by the parties, in the absence of which the tribunal must apply “the law of the Contracting State party to the dispute…and such rules of international law as may be applicable.” See W. Michel Reisman, The Regime for Lacunae in the ICSID Choice of Law Provision and the Question of Its Threshold, in Essays in Honor of Ibrahim Shihata, 15 ICSID Rev. 362 (2000); Emmanuel Gaillard, The Extent of the Applicable Law in Investment Treaty Arbitration, in Annulment of ICSID Awards 223 (E. Gaillard & Y. Banifatemi eds., 2004). State-to-state arbitrations will normally implicate principles of public international law, which might also even be relevant to private law subjects such as insurance. See, e.g., Agreement, India-U.S. (Nov. 19, 1997) (providing arbitration of international law claims triggered by political risk insurance payments of the U.S. Overseas Private Investment Corporation). This is not to say that parties never provide specific guidance on procedural matters. Indeed, both French and Swiss statutes explicitly allow choice of procedural law (French NCPC, art. 1494, Swiss LDIP, art. 182) as does UNCITRAL Model Article 19. Moreover, it is increasingly common to see contracts make reference to the 1999 IBA Rules of Evidence. Notions of fairness may differ, of course. In one London arbitration, the arbitrator refused a right of reply to the claimant, which then challenged the award for procedural irregularity. The judge upheld the award on the basis that nothing in the arbitration’s procedural framework said who got to speak last, and the English rule, giving final word to claimants bearing the burden of proof, did not apply in arbitration. After punting the question to the arbitrator, the judge also noted that international arbitration normally follows a right to make an equal number of submissions, which thus created an established practice that accorded with the arbitrator’s ruling. See Margulead Ltd. v. Exide Technologies, [2004] E.W.H.C. 1019.

39 William W. Park, Truth and Efficiency: The Arbitrator’s Predicament

With respect to a third category, questions that contain elements of both substance and procedure, arbitrators often look to transnational norms of a less flexible sort, synthesized from various cases and awards. Even if no single fixed legal system applies, the parties expect discretion to play a lesser role. Such hybrid matters, where firmer norms apply, include rates of interest, currency for awards, standards for determining arbitrator bias,97 the propriety of dissenting opinions,98 notions of issue preclusion, res judicata and lis pendens,99 and even the process for determining applicable law.100 2. The Arbitrator as Synthesizer In the juridical twilight between procedure and substance, two problems illustrate why and how arbitrators engage in legal synthesis. One relates to joinder of non-signatories, as when a parent corporation is alleged to have agreed to arbitrate through the agency of a subsidiary. The other implicates claims of lawyer-client privilege in the face of document production requests. In each instance, arbitrators who care about accuracy and fairness may need to synthesize transnational norms from several legal systems that inform their decision. a. Non-Signatories and Implied Consent Sometimes a claimant seeks the deeper financial resources of the respondent’s parent company even though the shareholder never signed the arbitration clause. For example, a French company might allege that the shareholder of its American counterparty had implicitly agreed to arbitrate through behavior evidencing the agency of its subsidiary. In another instance, a respondent parent might invoke an arbitration clause signed by its subsidiary to avoid an alternate forum perceived as unfavorable.

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See William W. Park, Arbitrator Integrity: The Transient and the Permanent, 46 San Diego L. Rev. 629 (2009). Particularly in ICSID challenges, subject to no judicial review, the skeleton of broad treaty notions (someone who may be “relied on to exercise independent judgment”) often requires the flesh of detail, usually supplied by parties invoking specific normative standards from other sources. 98 See Harm Peter Westermann, Das dissenting vote im Schiedsgerichtsverfahren, 7 Schieds VZ 102 (2009); Laurent Lévy, Dissenting Opinions in Switzerland, 5 Arb. Int’l 35 (1989). 99 See International Law Association, Final Report on Lis Pendens and Res Judicata, 25 Arb. Int’l 1 (2009). Recommendation 2 states that the conclusive and preclusive effects of arbitral awards in further arbitral proceedings “need not necessarily be governed by national law and may be governed by transnational rules applicable to international commercial arbitration.” 100 Although the chosen law relates to the substantive merits of the dispute, the decision to apply a given legal system would normally take the form of a ruling on procedure. See, e.g., 1996 English Arbitration Act, 34(2)(g). Finding applicable law might implicate multiple systems either as a matter of dépeçage among various issues, or because several contracts intertwine. See, e.g., Forsikringsaktieselskapet Vesta v. JNE Butcher, [1989] AC 852.

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When arguments for joinder rest on implied consent, the arbitrator’s job of determining an applicable law to decide the matter may not be simple.101 While judges understandably start from the law of whatever forum state pays their salary, arbitrators find the genesis of their power in private decisions. Traditional approaches include the law of the contract and the law of the arbitral situs.102 Yet both may involve a circular exercise that presumes its conclusion when identification of who agreed to arbitrate constitutes the very question to be decided. The contract’s applicable law, and the law of the arbitral seat, will be foreign to an entity that remained a stranger to the transaction. The arbitrator thus confronts a dilemma not unlike that of the proverbial chicken and egg and must be wary of starting with a law derived solely from one side’s version of the disputed facts. For these reasons, arbitrators often seek guidance in transnational norms articulated by scholars and in published awards. Such norms address the circumstances under which an arbitration clause might be extended to a non-signatory, for example, by virtue of the parent company’s behavior in negotiations and contract formation, or performance of related contracts which form part of a single contract scheme constituted by multiple agreements.103 Such transnational norms often serve as the best indicator of the reasonable expectations of litigants from diverse legal cultures. They apply for want of any better way to promote fair dispute resolution in a global community where not all accept one national law. b. Lawyer-Client Privilege The confidentiality of lawyer-client communications serves as another illustration of why and how arbitrators synthesize legal norms in transnational cases.104 Although 101 Apart from implied consent, the gateway to arbitration may also rest on disregard of a corporate veil. While this approach lends itself to easier analysis, with the starting point in the subsidiary’s law of incorporation, even that rule may not always provide firm answers. In First National City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec), 462 U.S. 611, 613 (1983), the U.S. Supreme Court addressed Cuba’s attempt to collect money from an American bank whose assets it had just confiscated, and applied equitable principles “common to international law and federal common law” to permit the value of expropriated assets to be credited against sums due under a letter of credit. 102 Rule 57, in Dicey, Morris and Collins, The Conflict of Laws, supra note 89, speaks of the “material validity, scope and interpretation” of an arbitration agreement as being governed by its applicable law. In the absence of explicit choice, this is said to be the law most closely associated with the arbitration agreement, generally the law of the arbitral seat. 103 See generally William W. Park, Non-signatories and International Contracts: An Arbitrator’s Dilemma, in Multiple Party Actions in International Arbitration 3 (PCA 2009). Many commentaries on the subject begin with the “group of companies” doctrine as expressed in ICC Award No. 4131 of 1982 (Dow Chemical). See I Receuil des Sentences Arbitrales de la CCI: 1974-1985, at 146 (Sigvard Jarvin and Yves Derains eds., 1990); see also Paris Cour d’Appel, Oct. 21, 1983, 1984 Rev. Arb. 98. 104 See, e.g., Richard Mosk & Tom Ginsburg, Evidentiary Privileges in International Arbitration, 50 Int’l & Comp. L.Q. 345 (2001); Norah Gallagher, Legal Privileges in International

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professional secrecy exists in many legal systems,105 the lawyer-client relationship takes on a special importance in disputes that implicate “common law” procedures. If a party may be compelled to produce documents adverse to its case, privilege becomes one escape hatch from the other side’s prying eyes.106 Problems arise even in disputes between litigants from closely-connected legal cultures such as those of England and the United States.107 English “legal professional privilege” divides between “legal advice privilege” and “litigation privilege” in a way that presents analogs (not always perfect ones) to the American notions of “attorney-client” privilege and the “work product” doctrine.108 Yet battle lines form around much narrower questions, such as whether privilege has been waived by implication, whether the “common interest privilege” precludes assertion of privilege between joint clients, and whether the sender of a memo did so in her capacity as a lawyer or as a business manager, which in turn would implicate notions such as “preponderant purpose” or “principal purpose” depending on the case law.109 In some jurisdictions, the arbitration may provide some help. For example, the English Arbitration Act says that the tribunal shall decide “all procedural and evidential matters”110 and imposes no preference whatsoever for English rules. This still begs the question, of course, whether privilege should be characterized as substance or procedure, or perhaps a bit of both.

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Arbitration, 6 Int’l Arb. L. Rev. 45 (2003); Klaus Peter Berger, Evidentiary Privileges: Best Practice Standards vs. Arbitral Discretion, 22 Arb. Int’l 501 (2006); Gary Born, International Commercial Arbitration 1910-14 (2009). One decision in the House of Lords (as it then was) referred to privilege as a “fundamental human right.” R (Morgan Grenfell Ltd.) v. Special Commissioner [2002] HL 21, para. 7; [2003] 1 AC 563. In a civil law system such as Switzerland, a secrecy obligation binds the lawyer not as a matter of the law of evidence, but as a matter of professional conduct. The master of the information will normally be the lawyer rather than the client. If the document falls into the wrong hands, it could normally be considered as evidence. Fed. R. Civ. P. 26(b) provides: “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense . . . .” One finds such conflict regularly in arbitration arising from so-called “Bermuda Form” insurance, where New York law governs policy interpretation while English principles apply to the many of the arbitration’s procedural aspects. See Richard Jacobs et al., Liability Insurance in International Arbitration (2004). See Hickman v. Taylor, 329 U.S. 495 (1946). On the scope of legal advice privilege in England, see Three Rivers DC v. Bank of England (No. 5), [2003] EWCA Civ. 484, [2003] 3 WLR 667; Three Rivers DC v. Bank of England (No. 10), [2003] EWCA 2565 (Comm.), appeal dismissed [2004] EWCA Civ. 218. For American analogues, see Fed. R. Evid. Rule 501 (leaving attorney-client privilege to the common law). See generally The Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality (Vincent Walkowiak ed., 4th ed. 2008). Sections 34(1) and (2)(d) of the 1996 Arbitration Act include in procedure a determination of what classes of documents will be disclosed.

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An arbitrator might contemplate applying the rules of the place where a letter or memo was created in order to meet expectations held by the drafters of the communication, regardless of their legal culture. Such an approach gives short shrift to the understandable anticipation of equal treatment. In countries like the United States, communications with in-house counsel may well benefit from the attorney-client privilege,111 while in Europe, professional secrecy attaches to lawyers who exercise an “independent” activity.112 A “place of drafting” rule would protect documents written by an in-house lawyer in New York, but not advice given by an in-house counsel in Geneva.113 Instinctively, good arbitrators shrink from giving one side the type of stark procedural handicaps that invite award annulment.114 Although it does not solve all problems, the most reasonable approach to privilege lies in synthesis among several systems. The arbitrator’s job will be to give fair and open-minded consideration of whatever authorities supply information about the parties’ shared expectations on the notions of privilege the parties intended to apply (or would have intended had they thought about it). Thus, in practice, arbitrators might look to judicial authorities from various common law jurisdictions, including, perhaps, persuasive authority from Australia, New Zealand, or Canada, as well as England and the United States. Such is the essence of synthesis, which like other forms of truth-seeking will inevitably require some investment in time and effort on the part of counsel and arbitrators. C. Prior Awards The effect of prior awards in other cases also affects the way arbitrators seek legal accuracy. Absent res judicata or issue preclusion arising for the same parties and the same claims or issues,115 arbitrators do not usually deem themselves bound by rul-

111 NCK Organization Ltd v. Bregman, 542 F.2d 128, 133 (2d Cir. 1976). 112 For example, in Switzerland, the notion of lawyer (avocat / Rechtsanwalt) depends on activity of an “independent” character. Employment as an in-house counsel thus disqualifies from lawyer status. See Article 231, Code Pénal, and Article 13, Loi fédérale sur la libre circulation des avocats (23 June 2000), establishing the obligation of professional secrecy. In general, the right to represent clients is limited to practicing lawyers and university professors. 113 One authority suggests that, in practice, both parties will be able to claim privilege in accordance with whatever rules are most restrictive on the duty to disclose. See David St. John Sutton & Judith Gill, Russell on Arbitration §§ 5-135 (2007). 114 In judicial actions, the problem will normally not arise in the same way, since courts (at least in common law traditions) generally treat privilege as within the law of evidence, and thus governed by the lex fori rather than the lex causae. See Dicey, Morris & Collins on the Conflict of Laws, supra note 89, at 184. 115 While res judicata prevents the same parties from relitigating the same cause of action after it has already been adjudicated in an earlier lawsuit, notions of issue preclusion come into play when a second but distinct lawsuit implicates questions decided in a prior action: the relitigation of such questions is then barred. French doctrines of force de chose

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ings of other tribunals, at least not in the way judges feel constrained by decisions of superior courts in a unified and hierarchical national system.116 This does not mean that prior awards will be ignored. To the contrary, decisions of other arbitral tribunals often get taken into account as constituting a corpus of principles representing the litigants’ shared expectations. While not given the status of precedent in a narrow common-law sense, awards of respected arbitrators may bolster support for results in other cases,117 providing information about what the relevant community considers the right approach to similar problems.118 For litigants, this information can serve as a tool of persuasion. For business managers and government planners, it provides one way to predict how future disputes will be resolved. And for the arbitrators, prior rulings can justify awards to the rest of the world and enhance the prospect that similar cases will be treated similarly.119 jugée and German concepts of rechtskräftiges Urteil play roles similar to those of res judicata in the common law tradition. 116 Within a single jurisdiction, a measure of uniformity can be imposed from the top down so that one case furnishes authority for decisions in similar fact patterns with similar questions of law. In theory, Continental and common-law traditions take different views of precedent. Article 5, French Code civil, forbids judges from purporting to make general rules: Il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises. In practice, however, the difference between traditions may not be so great. See generally Denis Tallon, Précedent, in Dictionnaire de la culture juridique 1185-1187 (2003). Still, common-law emphasis on the difference between “holding” and “dictum” in a case may not be shared in all traditions, with some Continental jurists reading decisions of their highest courts as if they were legislative texts. 117 One authority has suggested that for international arbitration precedent exists as “decisional authority that may reasonably serve to justify the arbitrators’ decision to the principal audience for that decision.” Barton Legum, Definitions of Precedent in International Arbitration, in Precedent in International Arbitration 5, 14 (E. Gaillard & Y. Banifatemi eds., 2008). 118 For an illustration of the delicate ambivalence arbitrators feel about prior awards, see AES Corp. v. Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction, July 13, 2005, ¶ 30, which asserts that each arbitral tribunal “remains sovereign and may retain, as it is confirmed by ICSID practice, a different solution for resolving the same problem . . . .” Following a semicolon, the sentence then adds that decisions “dealing with the same or very similar issues may at least indicate some lines of reasoning of real interest; this Tribunal may consider them in order to compare its own position with those already adopted by its predecessors and, if it shares the views already expressed by one or more of these tribunals on a specific point of law, it is free to adopt the same solution.” 119 For investor-state treaty disputes, jurisdictional questions such as “most favored nation” prove fertile sources for de facto precedent. See Gabrielle Kaufmann-Kohler, Arbitral Precedent: Dream, Necessity or Excuse?, 23 Arb. Int’l 357 (2007); Tai-Heng Cheng, Precedent and Control in Investment Treaty Arbitration, 30 Fordham Int’l L.J. 1014 (2007); Jeffrey P. Commission, Precedent in Investment Treaty Arbitration, 24 J. Int’l Arb. 129 (2007). Precedent is also common in “trade arbitration” (maritime, commodities and reinsurance); see also Michael Marks Cohen, Letter, 10 Int’l Arb. Q.L. Rev. 113 (2009).

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In some circumstances, litigants authorize arbitrators to disregard the strict rigors of otherwise applicable law, and decide in a way that the arbitrators deem fair and equitable.120 Drawn from French law, amiable composition describes a process whereby arbitrators temper legal rules whose strict application violates what seems right in the circumstances.121 Common examples include adjustment of payment due to substantial completion of a project, price changes due to alteration in the fundamental economic balance between the parties, and adjustment of terms in the event of unexpected inflation or exchange rate modification.122 In stipulating to amiable composition, parties tell arbitrators to pursue a different sort of truth. Rather than aiming at legal accuracy, the arbitrators reach toward general notions of “rightness” encrusted with emotional overtones and sometimes in tension with court decisions, statutes, or strict contract terms.123 A longstanding debate surrounds whether amiable composition amounts to the same thing as decision-making ex aequo et bono, according to the “right and good.”124 While the two notions are often used interchangeably, they may not be coextensive 120 See French NCPC, art. 1474 (applicable in purely domestic arbitrations), and art. 1497 (applicable in international cases). For international contracts, references to amiable composition may assume less precise contours than provided under French law, a bit as “due process” has come to be used in arbitration without necessarily drawing its significance from U.S. law. 121 See Eric Loquin, L’amiable Composition en Droit Comparé et International: Contribution à L’ étude du Non-Droit Dans L’arbitrage Commercial (1980), juxtaposing “non-droit” (non law) and “droit comparé” (comparative law). See also W. Laurence Craig et al., ICC Arbitration 110-114 (3d ed. 2000). Only in a very limited sense does amiable composition overlap notions of public policy as defenses to contract claims, which have long been seen as an “unruly horse” that may carry us to unknown places. See Richardson v. Mellish (1824) 2 Bing. 229, 252, where a captain sued for reinstatement as master of a ship whose command the owner had given to a nephew in contravention of policies in that day against selling command of important vessels. 122 For an empirical study of decisions ex aequo et bono (as discussed below, a close cousin or even sister to amiable composition), see Martim Della Valle, Decisões por Equidade na Arbitragem Comercial Internacional 372-402 (May 2009) (Ph. D. thesis, University of São Paulo) (on file with author). An English version is available: Martim Della Valle, Decisions ex Aequo et Bono in International Commercial Arbitration 18821 (2009). 123 See Mathieu de Boisséson, Le droit français de l’arbitrage 315 (1990) (suggesting that equité remains the goal (le but) not the means (le moyen) of amiable composition). 124 The Arbitration Rules of the International Chamber of Commerce, which in Article 17 (3) permit amiable composition only if agreed by the parties, mention both an amiable compositieur and ex aequo et bono, saying that a tribunal may (if authorized) “assume the powers of an amiable compositeur” or “decide ex aequo et bono.” The French version follows a similar structure. The disjunctive “or” leaves two distinct notions, as in “law or equity.” In some instances, however, words so joined might simply be different ways of

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in all minds. Arbitrators who decide ex aequo et bono normally begin and end with a private sense of justice, going directly to a personal view of the right result. With amiable composition, another option would present itself, directing arbitrators to start at rules of law and depart only if needed to achieve a just result.125 The difference is significant, given that there is nothing inherently unjust about most norms of commercial law. With respect to the substance of economic transactions, such as a seller’s right to be paid or the insured’s right to be reimbursed, the slim objective content of notions such as fairness (if divorced from legal norms) makes the concept problematic.126 Inherently chameleon-like, changing color depending on background and perspective, ad hoc fairness that ignores legal rules risks reducing the information with which companies and governments evaluate risks and make choices. Nor will concepts of substantive fairness long satisfy the public interest in the stable economic environment that obtains when claims and defenses in one case are treated like those advanced in similar disputes subject to similar norms.127 Only an explicit mandate normally justifies an arbitrator’s shift from a search for legal truth to the pursuit of subjective fairness. IV. From Oracle to Evidence The Yale University seal bears an open book with two Hebrew words transliterated Urim and Thummim. Sometimes rendered “light and truth,”128 this Biblical expression

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expressing similar concepts, as when each citizen may worship according to dictates of his faith or belief system. See Philippe Fouchard, Emmanuel Gaillard & Berthold Goldman, Traité de l’arbitrage commercial international 836-37 (1996). The authors seem to admit the option either to proceed directly to justice or first to consider the applicable law. Nevertheless, they suggest that such a nuance lacks significance (“une telle distinction . . . paraît artificielle”) because the arbitrators can always do what they think justice requires. By contrast, in the realm of procedure, the term “fairness” serves as shorthand for generally-accepted principles, such as the right to be heard and equal treatment. Imagine an arbitrator hearing claims against a banker who wrongfully refused to return the entirety of a customer’s funds. “Last month I deposited 1,500,” says the customer. “Ah, yes,” replies the banker. “But today such dreary historical facts must yield to aesthetic and moral concerns for balance, symmetry, and charity. Thus we have rounded your account down to 1000 and transferred the balance to a more deserving person.” Early English translations fixed Urim as “lights” and Thummim as “perfections” following the original plural form. Ultimately Yale augmented its seal with the Latin, Lux et Veritas. The Hebrew motto seems to have been in place well before 1778, when Yale’s new President, Ezra Stiles, made Hebrew a required course on the assumption that educated gentlemen should be familiar with the language of Scripture. Stiles himself had learned Hebrew while a pastor in Rhode Island, studying with Isaac Touro (namesake of the Sephardic synagogue designed by New England architect Peter Harrison) and an itinerant rabbi from Hebron named Chaim Karigal, who somehow stopped in Newport amid visits to Paris, London, Prague, Vienna, Aleppo and Curacao. For a historical tour

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designates a truth-seeking oracle, perhaps precious stones, held in the breastplate of the High Priest in ancient Israel.129 In response to questions put in binary fashion, the oracle would give one answer or the other. For example, the Priest might ask if sin during battle lay with the troops or the king, letting the oracle show Urim for the king and Thummim for the soldiers.130 Shifting forward several millennia, most legal cultures have replaced oracles with testimony from individuals with knowledge of specific events or subjects,131 usually supported by documentary exhibits. While such truth-seeking tools may not yield the perfection of oracles (and in any event still require decisions about what testimony should be deemed reliable),132 they do help arbitrators determine which side’s of the Yale seal, see Dan Oren, Joining The Club: A History of Jews and Yale app. I (2d ed., 2001). 129 The nouns together take a meaning greater than the sum of their parts and convey a broader and more complex message than simple addition of the two components. They constitute a hendiadys (from Greek hèn dià duoîn, or “one through two”), as in “law and order,” “sound and fury,” “Sturm und Drang,” “Nacht und Nebel,” “croix et bannière” or “chagrin et pitié.” 130 In 1 Samuel 14:41-42, someone disobeyed a ban on eating during battle. King Saul asked, “If the fault lies with me or my son, respond with Urim; but if with the troops, show Thummin.” After exonerating the troops, the oracle was consulted again and guilt fell on Jonathan, who confessed to tasting honey during combat. The oracle first appears in Exodus 28:30, and again in Numbers 27:21, Deuteronomy 33:8 and 1 Samuel 28:6. The precise manner for its consultation has been lost. Perhaps letters would light up or protrude when the priest prayed. Some scholars suggest a process, not a device. Of course, recourse to oracles did not mean absence of testimonial proof in Biblical times. See Deuteronomy 19:15 and 2 Corinthians 13:1. 131 The day of the oracle has not completely disappeared. See Oscar G. Chase, Law, Culture & Ritual (2005) (providing a comparative tour of litigation that begins with the Azande people of Central Africa). During the time a small chicken swallows fluid containing a ritual poison, the chief asks about the guilt of a couple accused of adultery. “Oracle, if they slept with each other, let the chicken die.” When the animal expires, the man and woman confess. Discussing American justice later in this work, Professor Chase suggests that the oracle may be no less idiosyncratic than the American civil jury. Id. at 15-16, 40-41. 132 Most American litigators will be familiar with “Daubert motions” to promote the reliability of expert testimony (so named for Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)). Fundamental questions about testimonial reliability are not new, however. During the Salem Witch Trials of 1692, New England farmers challenged the value of “spectral evidence” based on testimony about a person’s spirit. John Alden, son of the famous Plymouth settler of the same name, had been charged with sorcery on return from Québec, where he had gone to ransom Englishmen imprisoned by the French. After girls collapsed in torment from his specter, Alden asked rhetorically why his spirit did not so affect the judges. Doubts later caused Increase Mather, President of Harvard, to suggest that ten suspected witches should escape rather than one innocent person be condemned on spectral evidence. See Richard Francis, Judge Sewall’s Apology 181-82 (2005); Eve LaPlante, Salem Witch Judge 136-42, 192 (2007); Salem Witch Trials Reader, at xxii, 74 (F. Hill ed., 2000).

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narrative bears a closer connection to reality. Without such tools, whose application can take time, vindication of rights would be even more unpredictable than it now is, with little reason to expect that success would fall to the legitimate claimant rather than the dishonest fraudster. A notion of proportionality lies at the heart of intelligent truth-seeking in arbitration, accommodating the interconnected pillars of due process and efficiency. Hearing both sides enhances the prospect of award outcomes that comport with reality. Yet more testimony does not always bring enough enlightenment to justify the time and expense. And some arguments prove as helpful as water to a drowning man. In international disputes, finding the right balance implicates an accommodation among different legal cultures with disparate baselines. Even if universally accepted standards remain elusive, however, some prove more workable than others. In the search for creative case management tools, award accuracy remains the lodestar. Efficiency without accuracy will prove an empty prize. Until the world evolves to the point where people abandon attempts to vindicate rights, some market will exist for a mechanism that emphasizes deciding legal claims correctly by determining what happened, what was agreed, and what the law provides. If simple peacemaking were to become the norm, arbitration as a truth-seeking process would need to be reinvented.

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Chapter 40 The Future of Investment Arbitration Christoph Schreuer

I. Foreign Investment and Development There is broad consensus that foreign investment is an important if not the most important factor in economic development. It provides access to a number of indispensable economic resources. These include capital, technology and know-how. The volume of capital transfers through private foreign investment is considerably larger than all forms of public development aid, bilateral and multilateral. In addition, foreign investment facilitates access to world markets, to worldwide distribution channels and other networks. Not infrequently, foreign direct investment contributes to the improvement of infrastructures in developing countries like telecommunication systems, roads and airports, to the training of the local workforce and to the development of indigenous industries. This has led most developing countries to revise their previously reserved attitudes towards foreign direct investment and to adopt an open and welcoming attitude. The 1980s, and even more so the 1990s, saw a reversal of the “New International Economic Order” of the 1970s with its emphasis on sovereignty, State regulation and the right to expropriate. To a large extent the investment climate in a country consists of economic and political factors such as market access, the availability and cost of production factors, taxation, the existence of infrastructures, the existence of a functioning public administration, the level of corruption and political stability. In addition to economic and political factors, a country’s investment climate is determined by the legal framework for foreign investment. This legal environment is, in turn, determined by a number of factors. These include the stability of the legal conditions under which an investor operates, the quality of the local public administration, the transparency of the system of local regulations and an effective system of dispute settlement. II. Settling Investment Disputes The settlement of disputes between host States and foreign investors is a particularly important aspect of the legal protection of foreign investments. In the absence of Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 787-803.

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other arrangements, a dispute between a host State and a foreign investor will normally be settled by the host State’s domestic courts. From the investor’s perspective, this is not an attractive option. Rightly or wrongly, the courts of the host State are not seen as sufficiently impartial in this type of situation. In addition, domestic courts are usually bound to apply domestic law even if that law should fail to protect the investor’s rights under international law. In addition, the regular courts will often lack the technical expertise required to resolve complex international investment disputes. Domestic courts of other States are usually not a realistic alternative. In most cases, they lack jurisdiction over investment operations taking place in another country. In addition, sovereign immunity or other judicial doctrines will often make such proceedings impossible. Diplomatic protection was a frequently used method to settle investment disputes. It requires the espousal of the investor’s claim by his or her home State and the pursuit of this claim against the host State. This may be done through negotiations or through litigation between the two States before an international court or arbitral tribunal. But diplomatic protection, too, has several disadvantages. The investor must have exhausted all local remedies in the host country. Moreover, diplomatic protection is discretionary and the investor has no right to it. Also, diplomatic protection is unpopular with States against which it is exercised and may lead to tensions in international relations. Not surprisingly, developing countries do not like being leaned upon by powerful industrialized States. Therefore this method carries political disadvantages for the investor and for both States. It may cause diplomatic friction between the States concerned and cast a shadow over their relations. III. Investment Arbitration Today, direct arbitration between the host State and the foreign investor is the preferred option for the settlement of investment disputes. International arbitration provides an attractive alternative to the settlement of investment disputes by national courts or through diplomatic protection. Arbitration offers the parties the opportunity to select arbitrators who enjoy their confidence and who have the necessary expertise in the field. The private nature of arbitration, assuring the confidentiality of proceedings, is often valued by parties to major economic development projects, although recently there have been calls for more transparency in investment arbitration. Investment arbitration is in the interest of both investors and host States. Although being exposed to a claim before an international tribunal causes some inconvenience to States, investment protection is actually in the longer term interest of host States. It is no coincidence that the most important legal document governing investment arbitration, the ICSID Convention,1 was conceived in the framework of an international development institution, the World Bank. The very first sentence of the ICSID

1

Convention on the Settlement of Investment Disputes between States and Nationals of other States, 575 U.N.T.S. 159 (1966), 4 I.L.M. 532 (1965).

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Convention’s Preamble refers to the need for international cooperation for economic development and the role of private international investment therein.2 The advantage of access to investment arbitration for the investor is obvious: it gains direct access to an effective international forum should a dispute arise. This is an important element of the legal security sought by investors before making a decision to invest. The advantage to the host State is twofold. The more obvious one is the improvement of the country’s investment climate through the possibility of international arbitration. By offering arbitration the host State creates an important incentive to foreign investment. The Tribunal in Amco v. Indonesia pointed out that “to protect investments is to protect the general interest of development and of developing countries.”3 In addition, by consenting to investment arbitration the host State usually protects itself against other forms of foreign or international litigation and political pressure. In particular, a major advantage of ICSID arbitration is that the host State effectively shields itself against diplomatic protection by the State of the investor’s nationality.4 The 1990s have seen an enormous increase in the number of investment arbitrations instituted by foreign investors against host States. This boom of cases has continued unabated after the turn of the century. What was once seen as an exceptional remedy for unusual situations has become an everyday occurrence. As of April 2009, ICSID’s homepage listed 125 pending cases. In 2007 alone, 32 new cases were registered by the Secretary-General of ICSID. Over the years, 161 cases registered by ICSID have been concluded. In addition, there is an undisclosed number of investment arbitrations outside the framework of ICSID. These arbitrations may be administered by the Permanent Court of Arbitration, by the International Chamber of Commerce, by the London Court of International Arbitration, by the Stockholm Chamber of Commerce, or are conducted ad hoc mostly under the UNCITRAL Arbitration Rules. This unexpected success of investment arbitration has not remained without negative consequences. Some countries, especially those that have been the target of a series of claims by investors, have become weary of being the object of recurrent lawsuits by foreign investors and have started thinking of ways to put the genie of 2 3 4

“Considering the need for international cooperation for economic development, and the role of private international investment therein. …” Amco v. Indonesia, Decision on Jurisdiction, Sept. 25, 1983, 1 ICSID Rep. 389, para. 23; see also Award, Nov. 20, 1984, 1 ICSID Rep. 413, para. 249. Article 27 of the ICSID Convention provides: (1)

(2)

No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.

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investment arbitration back into the bottle. The spectrum of ideas to contain investment arbitration is wide and ranges from a limitation of jurisdiction of tribunals to a complete abolition. A number of complaints about investment arbitration have fuelled the debate about its future. These complaints include lack of consistency and contradiction in the case law of investment tribunals, lack of transparency of the arbitral process, perceived lack of responsiveness to community interests in the host State and interference with the competences of domestic courts. Some observers have gone as far as predicting a backlash against investment arbitration. IV. Consent to Jurisdiction Investment arbitration, like any form of arbitration, depends on the consent of both parties to the dispute. Consent may be given once a dispute has arisen but advance consent is by far the more promising way to submit to arbitration. Consent to jurisdiction may be given in several ways. The most obvious way is a consent clause in a direct agreement between the parties. Arbitration clauses are a common feature in contracts between States and foreign investors. Another technique to give consent to investment arbitration is a provision in the national legislation of the host State, most often its investment code. Such a provision offers consent to foreign investors in general terms. Many capital-importing countries have adopted such provisions.5 The investor may accept the offer in writing at any time while the legislation is in force. In fact, the acceptance may be made simply by instituting proceedings. The host State may withdraw its offer at any time before its acceptance by repealing the legislation. But once the investor has accepted the offer, the resulting agreement can no longer be revoked unilaterally.6 Today the vast majority of investment arbitrations are instituted on the basis of consent offered in treaties. Most bilateral investment treaties (BITs) contain clauses referring to investor-State arbitration. The States parties to the BIT offer consent to arbitration to investors who are nationals of the other contracting State. The arbitration agreement is perfected through the acceptance of that offer by an eligible investor, i.e. a national of the other State party to the BIT. Some regional treaties such as the NAFTA and the Energy Charter Treaty (ECT) similarly offer consent to investment arbitration.7 It is established practice that an investor may accept an offer of consent contained in a BIT by instituting arbitration proceedings. Therefore, where a BIT of this kind is in place, an investor no longer needs a formal arbitration agreement with the host State, but can simply invoke the BIT. The Tribunal in Generation Ukraine v. Ukraine stated:

5 6 7

See, e.g., Tradex v. Albania, Decision on Jurisdiction, Dec. 24, 1996, 5 ICSID Rep. 47, 54. See Article 25(1) in fine of the ICSID Convention: “When the parties have given their consent, no party may withdraw its consent unilaterally.” NAFTA art. 1122; ECT art. 26.

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[I]t is firmly established that an investor can accept a State’s offer of ICSID arbitration contained in a bilateral investment treaty by instituting ICSID proceedings. There is nothing in the BIT to suggest that the investor must communicate its consent in a different form directly to the State; … It follows that the Claimant validly consented to ICSID arbitration by filing its Notice of Arbitration at the ICSID Centre.8

Treaty clauses providing for investor/State arbitration vary in scope. Some refer to all disputes concerning investments. Other treaties just refer to violations of the treaty itself. For instance, both the NAFTA9 and the ECT10 offer arbitration just for violations of the respective treaty itself. Yet other BITs offer jurisdiction for disputes about the amount of compensation for expropriation owed to an investor.11 Consent clauses in BITs also vary with respect to procedural requirements that must be met before an investor is permitted to commence arbitration. Most of these clauses provide for waiting periods affording the parties an opportunity for a friendly settlement. Many BITs require the investor to seek a settlement in the host State’s domestic courts for a certain period of time before proceeding to international arbitration. By taking up the offer of consent to arbitration in the treaty, the investor accepts the limitations and conditions that are attached to it. The resulting arbitration agreement between the host State and the investor is subject to the restrains contained in the treaty. Therefore, somewhat paradoxically, consent agreements between investors and host States are nowadays largely dictated by treaties. The availability of access to investment arbitration depends on the existence of treaty provisions to this effect and on the details of the offers in these treaties. Most-favored-nation (MFN) clauses in most of these treaties have a certain leveling effect but have not always been given full force. Whereas some tribunals have applied MFN clauses to provisions dealing with dispute settlement,12 others have refused to do so, thereby preserving the unequal treatment provided by different treaties.13

8 9 10 11 12

13

Generation Ukraine v. Ukraine, Award, Sept. 16, 2003, 10 ICSID Rep. 240, paras. 12.2, 12.3. Art. 1116 NAFTA. Art. 26(1) ECT. See, e.g., United Kingdom-China BIT, art. 7. Maffezini v. Spain, Decision on Jurisdiction, Jan. 25, 2000, 5 ICSID Rep. 396, paras. 38-64; Siemens v. Argentine Republic, Decision on Jurisdiction, Aug. 3, 2004, 12 ICSID Rep. 174, paras. 32-110; Gas Natural v. Argentine Republic, Decision on Jurisdiction, June 17, 2005, paras. 24-31, 41-49; Suez v. Argentine Republic, Decision on Jurisdiction, May 16, 2006, paras. 52-66; Suez v. Argentine Republic, Decision on Jurisdiction, Aug. 3, 2006, paras. 52-68. Salini v. Jordan, Decision on Jurisdiction, Nov. 29, 2004, paras. 102-119; Plama v. Bulgaria, Decision on Jurisdiction, Feb. 8, 2005, 13 ICSID Rep. 272, paras. 179, 223; Telenor v. Hungary, Award, Sept. 13, 2006, paras. 90-100; Wintershall v. Argentine Republic, Award, Dec. 8, 2008, paras. 158-197.

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V. Availability of BIT Protection 792

Despite the large number of BITs, currently estimated at over 2,500, the availability of investment treaty protection, in particular access to arbitration, is by no means comprehensive. The traditional pattern of north-south treaty relationships in this area has been supplemented by treaties with former communist countries and between developing countries. But traditional industrialized States typically have no BIT relations. This is based on the assumption that domestic remedies in these counties will suffice. This means that if Britain were to nationalize parts of its economy, the remedies available to foreign investors would vary considerably. Argentinean, Estonian, Nigerian and Chinese investors would enjoy the protection of a BIT including access to arbitration. But German, U.S. and Australian investors would not, because Britain has no BITs with these countries. It follows that protection through BITs is still to a large extent a matter of chance and of nationality. It is unlikely that a system that works on the basis of a multitude of bilateral treaties will ever be able to remedy this situation. Attempts to establish a multilateral system of investment protection have failed so far.14 Regional treaties have a limited impact. The NAFTA, while important, covers three countries only. The Energy Charter Treaty has a larger number of participating countries15 but is limited to economic activity in the energy sector. Even among the investors that have access to international arbitration, the conditions vary considerably, depending on the details of the consent clauses in the respective treaties. States tend to shape investment treaties according to the expectations they hold concerning their role as home countries of investors abroad or as recipients of foreign investors. Investment treaties may be seen as swords to empower investors and as shields protecting host States against investment claims. The metamorphosis of China’s BIT practice is a good example to illustrate the point. Until 2003 most Chinese BITs restricted jurisdiction of investment tribunals to disputes concerning the amount of compensation for expropriation.16 This narrow jurisdictional clause was evidently based on the perception of China as a capital importing country that sought to avoid broad exposure to claims by foreign investors. With the realization of China’s role as a country of origin for international investments, China’s attitude has changed. China’s Model BIT of 200317 and a number of more recent BITs concluded by China now provide for jurisdiction for any legal dispute in connection with an investment. The sword available to Chinese investors has increased considerably with a corresponding reduction of the size of China’s shield against investment claims. 14

15 16 17

See Stefan Amarasinha & Juliane Kokott, Multilateral Investment Rules Revisited, in The Oxford Handbook of International Investment Law 119 (Peter Muchlinski, Federico Ortino & Christoph Schreuer eds., 2008). At the time of writing, the number of Parties stood at 47. See, for example, Article 10(1) of the BIT between China and Hungary of 1991. See China’s Model BIT of 2003, art. 9, reprinted in Rudolf Dolzer & Christoph Schreuer, Principles of International Investment Law 352, 357 (2008).

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Conversely, the United States has undergone a role change from a classical exporter of investments to a country that is also a major recipient of foreign investment. This is reflected in the U.S. Model BIT of 2004 which introduced important limitations to investor protection.18 The shield has grown at the cost of the sword. VI. Withdrawal from Investment Arbitration A number of countries, especially in Latin America, disenchanted by their roles as respondents, have started to think about strategies that would do away with, or at any rate limit, their exposure to investment arbitration. One such strategy is the denunciation of the ICSID Convention.19 Article 71 of the Convention provides for denunciation at six months notice.20 But the denunciation will not affect rights and obligations under the Convention arising out of consent to ICSID’s jurisdiction given before the notice of denunciation is received.21 Therefore, use of this provision will have limited effect. Article 72 is an expression of the more general rule that consent, once given, cannot be withdrawn unilaterally.22 It follows that once an offer of consent made by the host State by way of legislation or treaty has been accepted by the investor, the Convention’s denunciation will not affect the jurisdiction. If the investor has not perfected consent by the time of the notice for the Convention’s denunciation, it will not enjoy the benefits of the Convention. Therefore, a prudent investor will not wait until it is ready to file a request for arbitration before it accepts an offer of arbitration contained in legislation or a treaty. If it does so, it runs the risk of losing the benefit of the ICSID Convention after its denunciation by the host State. Even if a State that has become weary of investment arbitration manages to escape from the reach of the ICSID Convention, it is not necessarily safe from other forms of investment arbitration. Many BITs provide not only for ICSID arbitration but also for other forms of arbitration such as Additional Facility arbitration or ad hoc arbitration under the UNCITRAL Rules. Additional Facility arbitration may be available if either the host State or the State of the investor’s nationality but not both are parties 18

19 20

21

22

See Stephen Schwebel, The United States 2004 Model Bilateral Investment Treaty: an Exercise in the Regressive Development of International Law, Transnat’l Dispute Management, Apr. 2006. On May 2, 2007, the World Bank received a written notice of denunciation of the Convention from the Republic of Bolivia. Article 71 provides: “Any Contracting State may denounce this Convention by written notice to the depositary of this Convention. The denunciation shall take effect six months after receipt of such notice.” Article 72 provides: “Notice by a Contracting State pursuant to Articles 70 or 71 shall not affect the rights or obligations under this Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depositary.” Article 25(1) in fine of the ICSID Convention.

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to the ICSID Convention. Other forms of investment arbitration are independent of participation in the ICSID Convention. Some countries have indicated that they may seek to terminate or amend BITs to which they are parties thereby reducing the risk of being exposed to investment arbitration. Any such attempt would be effective only to the extent that it conforms to the law of treaties. The primary rule for the termination of a treaty is that it takes place in conformity with the provisions of the treaty or by consent of the parties.23 An amendment to a treaty may take place by agreement of the parties.24 The termination or amendment of BITs by agreement of the States parties to them so as to abolish or curtail investment arbitration, while not impossible, is not a promising strategy to ward off claims. It may be possible to reach agreement to this effect among a limited number of like minded States, but it is unlikely that this will have a decisive effect upon the treaty relations of a particular country. The countries of origin of investments have no incentive to agree to serious limitations to the protection of their nationals. Most BITs provide for the possibility of their termination, usually after ten years. A typical provision would foresee termination at twelve months notice at any time after that period. But investments made while the treaty was still in force would continue to be covered, typically for another ten or twenty years.25 Therefore, it is possible for States, weary of investment arbitration, to dismantle their respective obligations over time. Quite apart from the undesirable side effects of such a policy, this method is not going to lead to quick and decisive results. Moreover, the attrition of procedural protections is likely to create negative side effects on the country’s investment climate and may actually fuel litigation before the opportunity expires. This does not mean that investment arbitration in its present form will necessarily stay for good and that there is no realistic way to reform or to abandon it. If a broad consensus were to emerge among States that investment arbitration is no longer in their interest, the technical means to replace it by another form of dispute settlement certainly exist. The termination or amendment of BITs by agreement of the parties is one possibility. A more effective way would be a multilateral treaty that replaces the dispute settlement provisions in existing BITs and regional treaties.26 Although investors have been given far reaching procedural rights under the current system, the States still retain ultimate control. The fact that at present the investors and their legal counsel are the driving forces in international investment arbitration does not mean that the States have given up the ability to reform the system. Unilateral withdrawal by individual States from investment arbitration will 23 24 25

26

Vienna Convention on the Law of Treaties art. 54. Id. art 39. For examples of provisions of this kind, see Article 13 of the Chinese Model BIT of 2003; Article 12 of the French Model BIT of 2006; Article 14 of the German Model BIT of 2005; Article 14 of the United Kingdom Model BIT of 2005 and Article 22 of the US. Model BIT of 2004. The respective provisions are reproduced in Dolzer & Schreuer, supra note 17, at 358, 367, 374, 384, 405. See Vienna Convention on the Law of Treaties art. 59.

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be difficult, but the concerted reform or termination of the current system, although unlikely in the short run, remains a distinct possibility. VII. Nationality of Investors Nationality is very important in investment arbitration. The investor’s nationality determines from which treaties it may benefit.27 If the investor wishes to rely on a BIT, it must show that it has the nationality of one of the two States parties. If the investor wishes to rely on a regional treaty, such as NAFTA or the ECT, it must show that it has the nationality of one of the States parties to the treaty. If the investor wishes to rely on the ICSID Convention, it must show that it has the nationality of a State party to the ICSID Convention. In addition, it must show that it does not have the nationality of the host State. The investor’s nationality is relevant for two purposes. The substantive standards guaranteed in a treaty will only apply to the respective nationals. In addition, the jurisdiction of an international tribunal is determined, inter alia, by the claimant’s nationality. In particular, if the host State’s consent to jurisdiction is offered through a treaty, it will only apply to nationals of a State that is a party to the treaty. Questions of nationality have played a central role in numerous cases. Tribunals have dealt with issues of loss of nationality by individuals,28 with questions of dual nationality29 and with the effectiveness of nationality.30 Corporate nationality has raised even more difficult questions. The most commonly used criteria for corporate nationality are incorporation or the main seat of the business (siège social). Most treaties follow these criteria. Tribunals have had to grapple with arguments directed at the nationality of control over companies and with calls to pierce the corporate veil.31 At times, investors structure their investments through companies in third countries taking into account the existence of favorable BITs which provide access to investment arbitration. Nationality planning for purposes of benefiting from these treaties is neither illegal nor illegitimate. In Aguas del Tunari v. Bolivia, the Tribunal stated:

27

28 29 30

31

Exceptionally, the status of foreign investor may be extended to permanent residents. See NAFTA art. 201; ECT art. 1(7)(a)(i). Some treaties require domicile in addition to nationality. Soufraki v. United Arab Emirates, Award, July 7, 2004, 12 ICSID Rep. 158. Olguín v. Paraguay, Award, July 26, 2001, 6 ICSID Reports 164; Champion Trading v. Egypt, Decision on Jurisdiction, Oct. 21, 2003, 10 ICSID Rep. 400. Feldman v. Mexico, Decision on Jurisdiction, Dec. 6, 2000, 7 ICSID Rep. 327; Siag v. Egypt, Decision on Jurisdiction, Apr. 11, 2007; Micula v. Romania, Decision on Jurisdiction and Admissibility, Sept. 24, 2008. Tokios Tokelės v. Ukraine, Decision on Jurisdiction, Apr. 29, 2004, 11 ICSID Rep. 313; Saluka v. Czech Republic, Partial Award, Mar. 17, 2006; ADC v. Hungary, Award, Oct. 2, 2006; Rumeli v. Kazakhstan, Award, July 29, 2008.

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[I]t is not uncommon in practice, and—absent a particular limitation—not illegal to locate one’s operations in a jurisdiction perceived to provide a beneficial regulatory and legal environment in terms, for examples, of taxation or the substantive law of the jurisdiction, including the availability of a BIT. … The language of the definition of national in many BITs evidences that such national routing of investments is entirely in keeping with the purpose of the instruments and the motivations of the state parties.32

796

But not all attempts at nationality planning have been successful. In particular, the nationality requirements under the ICSID Convention have at times led to intricate problems.33 To make things even more complicated, some treaties go beyond formal requirements for the nationality of corporations such as incorporation or seat. They require an economic bond between the corporate investor and the State whose nationality it claims.34 Such an economic bond may consist of effective control over the corporation by nationals of the State whose nationality is claimed or of genuine economic activity of the company in that State. This preoccupation with issues of nationality has led to a strange paradox in international investment law. For purposes of access to the rights under treaties, especially to investment arbitration, nationality is decisive and much time and effort is spent in individual cases to prove or disprove a particular nationality. When the cases reach the merits stage the picture changes completely. Discrimination on the basis of nationality is prohibited. Most favored nation clauses in BITs guarantee treatment no less favorable than that enjoyed by nationals of any third state. National treatment, as provided by most BITs, guarantees treatment not less favorable than that enjoyed by host State nationals. Moreover, any discrimination on the basis of nationality would amount to a violation of fair and equitable treatment,35 a standard which has become the centerpiece of investor protection. Any expropriation, in order to be legal, must meet several requirements one of which is that it is not discriminatory.36

32 33

Aguas del Tunari v. Bolivia, Decision on Jurisdiction, Oct. 21, 2005, paras. 330, 332. Banro American Resources, Inc. v. Democratic Republic of the Congo, Award, Sept. 1, 2000. Only excerpts of the Award have been published: 17 ICSID Rev. 380 (2002); Autopista v. Venezuela, Decision on Jurisdiction, Sept. 27, 2001, 6 ICSID Rep. 419; TSA Spectrum v. Argentine Republic, Award, Dec. 19, 2008. 34 See, generally, Pia Acconci, Determining the Internationally Relevant Link between a State and a Corporate Investor, 5 J. World Investment & Trade 139 (2004). 35 See, e.g., CMS v. Argentine Republic, Award, May 12, 2005, 44 I.L.M. 1205(2005). 36 Article 6(1) of the United States Model BIT of 2004 is typical of these requirements: 1. Neither Party may expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (“expropriation”), except: (a) for a public purpose; (b) in a non-discriminatory manner; (c) on payment of prompt, adequate, and effective compensation; and

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This strange discrepancy between non-discrimination on the basis of nationality for purposes of the standards of treatment and strict adherence to nationality requirements for purposes of access to treaty rights, including arbitration, is only in part a consequence of the treaty basis of international investment law. Bilateral treaties are traditionally based on reciprocity, granting rights only to the two states concerned and to their nationals. Regional treaties such as the NAFTA and the ECT also contain strict nationality requirements. Even the ICSID Convention, a treaty that has 143 Contracting States, requires that a party to proceedings is a national of a Contracting State.37 A look at human rights law demonstrates that rights of individuals arising from treaties are not necessarily linked to the nationality of States participating in the treaty. Human rights are universal and even under regional human rights treaties, such as the European Convention on Human Rights, the Contracting States guarantee the rights guaranteed by the Convention to “everyone within their jurisdiction.”38 The International Covenant on Civil and Political Rights is even more explicit by guaranteeing the rights contained therein “to all individuals … without distinction of any kind,” including national origin.39 Therefore, the enjoyment of human rights does not depend on the possession of a particular nationality. This suggests that the distinction made in investment law between privileged nationals that enjoy treaty rights and non-privileged nationals that do not, is not a necessary consequence of treaty relations. Rather, it is a consequence of the unwillingness of States to grant rights of an economic nature40 on a general basis beyond the confines of reciprocity. Based on the nature of investment relations, States prefer

(d)

37

38

39

40

in accordance with due process of law and Article 5 [Minimum Standard of Treatment](1) through (3). Emphasis added. Article 25(1). The Additional Facility is available for investment disputes involving parties only one of which is either an ICSID Contracting State or a national of an ICSID Contracting State. Additional Facility arbitration does not take place on the basis of the ICSID Convention but on the basis of a decision of ICSID’s Administrative Council of September 27, 1978. Convention for the Protection of Human Rights and Fundamental Freedoms (1950) art. 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” International Covenant on Civil and Political Rights art. 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The International Covenant on Economic, Social and Cultural Rights (1966) (CESCR) does not contain a corresponding reference to “all individuals.” But it does prohibit discrimination on the basis of national origin. See CESCR art. 2 (1), (2). The rights granted under the CESCR are of a different nature than those granted in investment protection treaties.

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not to extend these rights to nationals of States that have not given corresponding undertakings and particularly not to their own nationals. At present, there is no indication that States are willing to follow the example of human rights instruments in the area of investment law and to grant investors’ rights to all investors, including to nationals of countries with which they have no treaty relations and to their own nationals. Therefore, nationality is likely to remain a contested issue in many investment cases. A drastic reduction of nationality problems in investment arbitration could be achieved if a widely accepted multilateral treaty offering consent was to replace the multitude of bilateral treaty relations based on BITs. The lack of progress towards a general multilateral treaty for the protection of investments does not make this a likely contingency for the near future. VIII. The Role of Domestic Courts As pointed out above, one of the purposes of investment arbitration is to avoid the hazards of litigation in the host State’s domestic courts. Under traditional international law, before an international claim on behalf of an investor may be put forward in international proceedings, the investor must have exhausted the domestic remedies offered by the host State’s courts. But it is well established that, where consent has been given to investor-State arbitration, there is generally no need to exhaust local remedies.41 Article 26 of the ICSID Convention makes it clear that a State may make the exhaustion of local remedies a condition of consent to arbitration.42 But that possibility is rarely used. Attempts by respondent States in investment arbitrations to insist on the exhaustion of local remedies have not succeeded.43 But domestic courts have not disappeared from the scene of investment arbitration. In fact, there are indications that they are creeping back.44 Some BITs provide that before an investor may bring a dispute before an international tribunal he or she must seek its resolution before the host State’s domestic courts for a certain period of time, often eighteen months. The investor may proceed to international arbitration if

41

42

Stephen M. Schwebel, Arbitration and the Exhaustion of Local Remedies, in Justice in International Law. Selected Writings of Judge Stephen M. Schwebel 171 (1994) ICSID Convention art. 26: Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.

43

44

Generation Ukraine v. Ukraine, Award, Sept. 16, 2003, 10 ICSID Rep. 240, paras. 13.113.6.; IBM v. Ecuador, Decision on Jurisdiction, Dec. 22, 2003, 13 ICSID Rep. 105, paras. 77-84; AES v. Argentine Republic, Decision on Jurisdiction, Apr. 26, 2005, 12 ICSID Rep. 312, para. 69. Christoph Schreuer, Calvo’s Grandchildren: The Return of Local Remedies in Investment Arbitration, 4 Law & Prac. Int’l Cts. & Tribunals 1 (2005).

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the domestic proceedings do not result in the dispute’s settlement during that period or if the dispute persists after the domestic decision.45 Tribunals have held that this was not an application of the exhaustion of local remedies rule.46 In actual practice, investors in most cases were able to avoid the application of such a rule by invoking most favored nation (MFN) clauses in the same BITs which allowed them to rely on other BITs of the host State that did not contain that requirement.47 Contracts between host States and foreign investors frequently contain forum selection clauses referring disputes arising from the application of these contracts to the host States’ domestic courts. ICSID Tribunals have distinguished between claims based on BITs and claims based on contracts. The contract claims are subject to contractual forum selection clauses but treaty claims are unaffected by such clauses. Under this consistent practice the treaty-based jurisdiction of international arbitral tribunals to decide on violations of these treaties is not affected by domestic forum selection clauses in contracts. The contractual selection of domestic courts is restricted to violations of the respective contracts.48 45

46

47

48

Norway’s Model BIT of 2007 contains a particularly onerous provision. Under Article 15(3), ICSID arbitration becomes available if “agreement cannot be reached between the parties to this dispute within 36 months from its submission to a local court for the purpose of pursuing local remedies, after having exhausted any administrative remedies; … .” See Maffezini v. Spain, Decision on Jurisdiction, 25 Jan. 25, 2000, 5 ICSID Rep. 396, para. 28; Siemens v. Argentine Republic, Decision on Jurisdiction, Aug. 3, 2004, 12 ICSID Rep. 174, para. 104; Gas Natural SDG, S.A. v Argentine Republic, Decision on Jurisdiction, June 17, 2005, para. 30. See Maffezini v. Spain, Decision on Jurisdiction, Jan. 25, 2000, 5 ICSID Rep. 396, paras. 54-64; Siemens v. Argentine Republic, Decision on Jurisdiction, Aug. 3, 2004, 12 ICSID Rep. 174, paras. 32-110; Gas Natural SDG, S.A. v. Argentine Republic, Decision on Jurisdiction, 17 June 2005, paras. 24-49; Suez, Sociedad General de Aguas de Barcelona S.A. v. Argentine Republic, Decision on Jurisdiction, May 16, 2006, paras. 52-66; National Grid PCL v. Argentine Republic, Decision on Jurisdiction, June 20, 2006, paras. 80-93; AWG Group Ltd. v. Argentine Republic, Decision on Jurisdiction, Aug. 3, 2006, paras. 52-68. But see Wintershall v. Argentine Republic, Award, Dec. 8, 2008. Compañía de Aguas del Aconquija, S.A. & Compagnie Générale des Eaux v. Argentine Republic, Award, Nov. 21, 2000, 5 ICSID Rep. 299; Compañía de Aguas del Aconquija, S.A. v. Argentine Republic, Decision on Annulment, July 3, 2002, 6 ICSID Rep. 340; CMS v. Argentine Republic, Decision on Jurisdiction, July 17, 2003, 7 ICSID Rep. 494, paras. 70-76; SGS v. Pakistan, Decision on Jurisdiction, Aug. 6, 2003, 8 ICSID Rep. 406, paras. 43-74, 147-173; Azurix v. Argentine Republic, Decision on Jurisdiction, Dec. 8, 2003, 10 ICSID Rep. 416, paras. 26-36, 75-79; Enron v. Argentine Republic, Decision on Jurisdiction, Jan. 14, 2004, 11 ICSID Rep. 273, paras. 89-94; SGS v. Philippines, Decision on Jurisdiction, Jan. 29, 2004, 8 ICSID Rep. 518, paras. 136-155,160-163; LG&E v. Argentine Republic, Decision on Jurisdiction, Apr. 30, 2004, 11 ICSID Rep. 414, paras. 58-62; Siemens v. Argentine Republic, Decision on Jurisdiction, Aug. 3, 2004, 12 ICSID Rep. 174, paras. 174-183; Salini v. Jordan, Decision on Jurisdiction, Nov. 29, 2004, paras. 92-96; Impregilo v. Pakistan, Decision on Jurisdiction, Apr. 22, 2005, 12 ICSID Rep. 245, paras. 286-289; Camuzzi v. Argentine Republic, Decision on Jurisdiction, May 11, 2005, paras. 105-119;

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In some cases tribunals have required an attempt to obtain redress in domestic courts not as a matter of jurisdiction or admissibility but as part of the evidence that the relevant standard of international law had indeed been violated.49 The Tribunal in Generation Ukraine v. Ukraine determined: [T]he failure to seek redress from national authorities disqualifies the international claim, not because there is a requirement of exhaustion of local remedies but because the very reality of conduct tantamount to expropriation is doubtful in the absence of a reasonable— not necessarily exhaustive—effort by the investor to obtain correction.50

Under this doctrine an attempt to seek redress in the domestic courts would be required to demonstrate that a substantive standard, such as protection against uncompensated expropriation or fair and equitable treatment, has indeed been violated.51 Requiring investors to go to domestic courts before instituting international proceedings is an effective strategy to undermine investment arbitration. This would not only delay a definitive decision but would also increase the investor’s costs. In many cases this delay and added expense could be so prohibitive as to discourage investors from the pursuit of their claims. At the same time, strengthening the role of domestic courts appears superficially innocuous and may actually be portrayed in a positive light. Therefore, the interposition of procedural hurdles in domestic courts is a more promising strategy for States that wish to limit their exposure to investment arbitration than outright withdrawal as discussed above. IX. Coherence and Consistency Discrepancies and contradictions in the practice of investment tribunals have become a matter of concern. There are several areas of investment law that display diverse lines of authority or at least individual decisions that are at odds with established practice.52

49 50

51 52

Sempra Energy International v. Argentine Republic, Decision on Jurisdiction, May 11, 2005, paras. 116-128; Eureko v. Poland, Partial Award, Aug. 19, 2005, 12 ICSID Rep. 335, paras. 81, 89, 92-114; Aguas del Tunari, S.A. v. Argentine Republic, Decision on Jurisdiction, Oct. 21, 2005, paras. 94-123; Suez, Sociedad General de Aguas de Barcelona S.A. v. Argentine Republic, Decision on Jurisdiction, May 16, 2006, paras. 41-45; National Grid PCL v. Argentine Republic, Decision on Jurisdiction, June 20, 2006, para. 167-170. See Waste Management v. Mexico, Award, Apr. 30, 2004, 11 ICSID Rep. 362, para. 97. Generation Ukraine, Inc. v. Ukraine, Award, Sept. 16, 2003, 10 ICSID Rep. 240, para. 20.30 (emphasis in the original); see also EnCana v. Ecuador, Award, Feb. 3, 2006, 12 ICSID Rep. 427, para. 194. See also Parkerings v. Lithuania, Award, Sept. 11, 2007, paras. 316-320, 344, 360, 361, 449, 453, 454. See Christoph Schreuer & Matthew Weiniger, A Doctrine of Precedent?, in The Oxford Handbook of International Investment Law 1188 (Peter Muchlinski, Federico Ortino & Christoph Schreuer eds., 2008).

40 Christoph Schreuer, The Future of Investment Arbitration

There are several conceivable ways to address this problem. One is the establishment of an appeals procedure. The United States Model BIT of 2004 as well as a number of U.S. treaties provide for the possibility to establish an appellate body or similar mechanism.53 It is doubtful whether appellate bodies established under different bilateral treaties would lead to a coherent case law. There is no known practice under these provisions. An alternative model would be the establishment of a multilateral appeals mechanism. ICSID at one point floated a draft that foresaw the creation of an appeals facility at ICSID, but the idea was quietly dropped soon thereafter.54 The project of a multilateral appeals mechanism in the framework of ICSID would have created several problems. One of these is the provision of Article 53 of the ICSID Convention which says that an award shall not be subject to any remedy except those provided for in the Convention. Any attempt to amend the ICSID Convention would be far too complex to be realistic.55 An appeal presupposes a decision that will be attacked for some alleged flaw in order to be repaired. Rather than try and fix the damage after the fact through an appeal, it is more economical and effective to address it preventively before it occurs. A method to secure coherence and consistency that has been successful in European law is to allow for preliminary rulings while the original proceedings are still pending. Under such a system a tribunal would suspend proceedings and request a ruling on a question of law from a body established for that purpose.56 Preliminary rulings would leave Article 53 of the ICSID Convention untouched. They would help to prevent the development of inconsistencies rather than create a costly and time-consuming repair mechanism. The creation of a permanent investment court is another possible solution to the problem of inconsistencies. At present, there is no indication that such a project is under serious discussion. It would require a multilateral treaty essentially replacing the ICSID Convention. In addition, the creation of a permanent court would either necessitate the adaptation of a multitude of bilateral and regional treaties currently offering consent to arbitration, or create its own mechanism for submission by States. Even if these structural problems can be overcome, the selection of judges would pose formidable problems. If, as is likely, the selection would be in the hands

53

54

55 56

See generally Barton Legum, The Introduction of an Appellate Mechanism: The U.S. Trade Act of 2002, in Annulment of ICSID Awards 289 (Emmanuel Gaillard & Yas Banifatemi eds., 2004). ICSID Secretariat, Possible Improvements of the Framework for ICSID Arbitration (Oct. 22, 2004); ICSID Secretariat, Suggested Changes to the ICSID Rules and Regulations, Working Paper (May 12, 2005). Under Article 66, any amendment to the ICSID Convention requires the assent of all States parties to it. See Christoph Schreuer, Preliminary Rulings in Investment Arbitration, in Appeals Mechanism in International Investment Disputes 207 (Karl P. Sauvant ed., 2008).

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of contracting States, there is a danger that the bench, at least initially, would have a disposition in favor of State interests at the cost of investor interests. Reliance on previous decisions seems the most realistic way to achieve consistency. In fact, reference to earlier decisions is a standard feature in most decisions.57 Tribunals regularly rely on other earlier awards to the extent that they find their reasoning persuasive.58 At the same time there is clearly no doctrine of binding precedent.59 Attitudes towards consistency in addressing similar legal problems vary. Some arbitrators see it as their duty to decide the particular case without regard to a jurisprudence constante. Others see it as their duty to contribute to the development of a coherent body of law. The latter view was expressed by the Tribunal in Saipem v. Bangladesh in the following terms: The Tribunal considers that it is not bound by previous decisions. At the same time, it is of the opinion that it must pay due consideration to earlier decisions of international tribunals. It believes that, subject to compelling contrary grounds, it has a duty to adopt solutions established in a series of consistent cases. It also believes that, subject to the specifics of a given treaty and of the circumstances of the actual case, it has a duty to seek to contribute to the harmonious development of investment law and thereby to meet the legitimate expectations of the community of States and investors towards certainty of the rule of law.60

X. Conclusion Investment arbitration is likely to remain the most important form of dispute settlement in the relationship of host States and foreign investors for some time. A number of shortcomings have emerged over the years and the initial enthusiasm for invest57

58

59

60

For a comprehensive survey of citations, see Jeffery Commission, Precedent in Investment Treaty Arbitration—A Citation Analysis of a Developing Jurisprudence, 24 J. Int’l Arb. 129 (2007). See Mohamed Shahabuddeen, Precedent in the World Court (1996); Andrea Bjorklund, Investment Treaty Arbitral Decisions as Jurisprudence Constante, in International Economic Law: The State and Future of the Discipline (Colin Picker, Isabella Bunn & Douglas Arner eds., 2008); Tai-Heng Cheng, Precedent and Control in Investment Treaty Arbitration, 30 Fordham In’tl L.J. 1014 (2007); Gabrielle KaufmannKohler, Arbitral Precedent: Dream, Necessity, or Excuse, 23 Arb. Int’l (2007); August Reinisch, The Role of Precedent in ICSID Arbitration, Austrian Arb. Y.B. 495 (2008); Christoph Schreuer, Diversity and Harmonization of Treaty Interpretation in Investment Arbitration, Transnat’l Dispute Management, Apr. 2006; Precedent in International Arbitration (Yas Banifatemi ed., 2008). Amco v. Indonesia, Decision on Annulment, May 16, 1986, 1 ICSID Rep. 509, para. 44; Gas Natural v. Argentine Republic, Decision on Jurisdiction, June 17, 2005, para. 36; Enron v. Argentine Republic, Decision on Jurisdiction (Ancillary Claim), Aug. 2, 2004, 11 ICSID Rep. 295, para. 25. Saipem v. Bangladesh, Decision on Jurisdiction, Mar. 21, 2007, para. 67; see also Noble Energy v. Ecuador, Decision on Jurisdiction, Mar. 5, 2008, para. 50.

40 Christoph Schreuer, The Future of Investment Arbitration

ment arbitration has given way to a more sober assessment. But it is an exaggeration to speak of an acute crisis or a backlash. Investment arbitration is largely governed by treaties and is hence under the ultimate control of States. For some States, that have found themselves in the role of respondents in multiple proceedings, the experience has been painful. Despite some discussion of exit strategies, the options for individual States are limited. A new architecture for the settlement of investment disputes is possible only on the basis of a broad consensus. A more likely development is small changes that limit the exposure of States. New BITs tend to be more cautious in granting procedural as well as substantive rights to investors. Old BITs may be renegotiated or even terminated. ICSID has already introduced stricter standards for the registration of requests for arbitration and tribunal are showing an increasing sensitivity towards the needs of States.

803

Chapter 41 The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea Hi-Taek Shin*

I. Introduction As the global economic crisis deepens, even governments with major market economies are susceptible to domestic political pressures to adopt protectionist trade policies.1 In a speech given at the University of California, Berkeley in October 2008, Pascal Lamy, the Director-General of the World Trade Organization (WTO), stated that “restoring citizens’ confidence in international trade requires governments to ensure that sound domestic policies are in place.”2 The domestic decision-making process must be capable of synthesizing the constituents’ diverse and occasionally conflicting

*

1

2

The author first encountered the New Haven School of Jurisprudence when he attended Professor Reisman’s class in 1982 as an LL.M. student at Yale Law School. As a law student educated in the continental civil law system of Korea, where military elites and technocrats dominated the decision-making process from the early 1960s to the 1980s, the significance of the New Haven jurisprudence was difficult to appreciate at the time. As Korea progressed into a democratic society, however, the necessity of improving the sociopolitical process of authoritative decision arose and, in this context, the relevance of the New Haven School of Jurisprudence to Korea became clear. This article endeavors to apply the policy-oriented perspective of the New Haven School of Jurisprudence to an episode involving the importation of U.S. beef into Korea. An abridged essay of this contribution was published as one of the essays in honor of W. Michael Reisman in the Yale Journal of International Law. See Hi-Taek Shin, The Domestic Decisionmaking Process and its Implications for International Commitments: American Beef in Korea, 34 Yale J. Int’l L. 567 (2009). The author thanks Julie A. Kim and Yun Bak Chung for their invaluable assistance in developing this Article. World Bank, Int’l Trade Dep’t, Trade Protection: Incipient but Worrisome Trends 1(Pub. No. 37, Mar. 2, 2009), available at http://siteresources.worldbank.org/ NEWS/Resources/Trade_Note_37.pdf (stating that G-20 leaders signed a pledge on November 15, 2008 to avoid protectionist measures. Seventeen countries from the G-20 had implemented forty-seven measures restricting trade at the expense of other countries). Pascal Lamy, Director-General, World Trade Organization, Lecture at the University of California, Berkeley (Oct. 29, 2008), at http://www.wto.org/english/news_e/ sppl_e/ sppl105_e.htm.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 805-820.

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points of views into solid domestic policies. Issues related to free trade are no longer centered on the loss of jobs and the undermining of domestic industries. Contemporary issues include public health and safety concerns that affect the broader community, not merely a subset of the population. Now that ordinary citizens and civil society groups are able to disseminate and receive information through the Internet or other electronic means of instant communication, they are increasingly capable of influencing public opinions and government policies on international trade issues. A sound domestic decision-making process relating to international trade must consider all of these factors, thus adding to the complexity of the balancing process. Balancing interests among domestic constituents through an orderly political, administrative, and judicial process is a challenge for both mature democratic societies and rapidly democratizing countries like Korea. While an elaborate domestic decision-making framework is detailed in the Korean Constitution and laws, in practice, the decision-making process has not always been orderly when it involves economically, socially, and politically sensitive trade issues.3 If the domestic decision-making process relating to international trade fails to produce substantively and procedurally sound policies that address public concerns over the health and safety of citizens, even the rule of law may be undermined. This could, as a result, undercut the ability of the government to negotiate, conclude, and perform commitments made in such international trade agreements. The controversy surrounding the resumption of importation of American beef into Korea in 2008 exemplifies the complexity of balancing competing interests involved in the course of negotiating and executing an international trade agreement with strong ramifications on the health and safety of citizens. This controversy unequivocally demonstrated that when the domestic balancing process does not properly address the public concerns over the health and safety of its citizens, it could have serious repercussions for international law. In light of the current global economic crisis and countries’ growing inclinations towards protectionist trade policies, Korea’s experience with the U.S. beef import issue may be repeated in other parts of the world.4 Particularly under these conditions, a sound domestic decision-making process becomes all the more critical to the viability of our international trading system. Part II of this article reviews the factual background surrounding the agreement between Korea and the United States regarding the resumption of importation of 3

4

See, e.g., The Struggle Against Neoliberalism in South Korea: History and Lessons (Feb. 13, 2008), http://www.bilaterals.org/article.php3?id_article=15246. During the Uruguay Round of trade agreement negotiations and the Korea-U.S. free trade agreement negotiations which included highly sensitive agricultural issues, Korea experienced social turmoil as interest groups and farmers reacted with physical violence. Examples include Thailand and Malaysia’s free trade agreements with the United States. Both countries’ citizens emphasized health concerns by protesting against the banning of generic medicines. E.g., Malaysians Protest Against Free Trade Talks with US, Third World Network, June 13, 2006, http://www.twnside.org.sg/title2 /FTAs/info.service/ fta.info.service013.htm.

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

American beef into Korea and the subsequent public outrage that ultimately led to the renegotiation of the major terms and conditions of the Korea-U.S. agreement. Then, Part III analyzes the legal significance of the reference to the Korean Administrative Procedures Act (KAPA)5 in the Korea-U.S. beef import agreement as set forth in the Agreed Minutes (Beef Agreement)6 to analyze the status of the Beef Agreement under international law and to understand whether Korea’s commitment to implement the Beef Agreement is unconditional or subject to the domestic consensus building requirement as mandated by KAPA. This author concludes that the Beef Agreement is valid under international law, but that its implementation is subject to KAPA because of the explicit recognition of the KAPA requirement in the text of the Beef Agreement. Consequently, the implementation of the Beef Agreement and the domestic balancing process as required by KAPA are bridged by the recognition of KAPA in the text of the Beef Agreement itself and thereby the former becomes directly subjected to the uncertainty and unpredictability of the domestic balancing process. II. Factual Background Korea was the third largest export market for American beef until the Korean government banned U.S. beef imports when mad cow disease was first reported in the United States in December 2003. Resumption of the importation of U.S. beef has since emerged as a delicate trade issue for the two countries. When Korea expressed its intent to negotiate a free trade agreement with the United States in 2005,7 certain members of the U.S. government made clear that their support of the free trade agreement depended on whether Korea reopens the market to imported U.S. beef.8 However, trade officials in Korea have cautiously maintained that the importation of 5

6 7

8

Heng Jung Jul Cha Bup [Administrative Procedures Act (KAPA)], Act No. 5241, Dec 31, 1996, amended by Act No. 8852, Feb 29, 2008 (Korea) [hereinafter Korean Administrative Procedures Act]. Agreed Minutes of the Korea-United States Consultation on Beef, U.S.-Korea, Apr. 18, 2008 (on file with author) [hereinafter Beef Agreement]. The United States and Korea have a long history of bilateral trade. In 1994, the United States proposed establishing a bilateral investment treaty between the two countries. The proposal did not come into fruition because Korea was not prepared to liberalize its market to the level expected by the United States. However, with the advent of the Asian financial crisis in 1998, having a Korea-U.S. BIT became an urgent priority for Korea to increase foreign direct investments. The United States and Korea entered into several rounds of BIT negotiations from 1998 to 1999, but the negotiations fell apart and further efforts were not made by either government until 2005 when the Korean government initiated a discussion on the possibility of having an FTA with the United States. For more details, see Sae Young Kim & Young Gie Park, The Problems of the Korean-U.S. Bilateral Investment Treaty and Suggestions for Their Solutions, 6 J. Korea Research Society for Customs 161, 162 (2005). See, e.g., Press Release, Rob Portman, U.S. Trade Representative, Press Conference at Closing of APEC Trade Minister’s Meeting (June 3, 2005), http://www.ustr.gov/Docu-

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American beef is not a prerequisite to beginning the two countries’ free trade agreement negotiation9 out of concern that the Korean public would misunderstand the government’s action as exchanging the people’s health for the free trade agreement. Shortly before both governments announced their intention to negotiate a free trade agreement in February 2006, the Korean government agreed to a partial lifting of the import ban on U.S. beef; Korea would allow the importation of boneless U.S. beef derived from cattle less than thirty months old (believed to be at less risk of mad cow disease). Pursuant to relevant Korean law,10 the terms and conditions of the import agreement with the United States were implemented by the Ministry of Agriculture11 in the form of a ministry “notification” (gosi in Korean). KAPA requires that before any ministry introduces and implements a new notification, it must publish the major contents of the notification to the general public and solicit public comments.12 The Ministry of Agriculture followed the procedure under KAPA and the notification took effect in March 2006 (2006 Notification).13 Importation of American beef resumed, but shortly afterwards, importation was suspended again when the Korean government returned the entire shipment to the U.S. upon finding pieces of small bone chips on three initial shipments. The Ministry of Agriculture held that the inclusion of bone chips in the imported beef was a violation of the 2006 Notification. While U.S. exporters requested reasonable bone chip tolerance for future shipments, the Korean government maintained a strict stance. The Trade Minister stated that “the beef issue should not be viewed as [a] market access issue, but a national health issue.”14 After further negotiations between the two governments, U.S. beef import resumed yet again in April 2007. When larger bone pieces were repeatedly found in subsequent shipments, the Korean government placed a total ban on the

9

10 11

12 13

14

ment_Library/Transcripts/2005/June/USTR_Portman_Press_Conference_at_Closing_ of_APEC_Trade_Ministers_Meeting.html. Press Release, Ministry for Food, Agric., Forestry, and Fisheries, Korea, U.S. May Compromise over Beef Trade Row, Seoul’s Ambassador Says (Feb. 11, 2007), http://english.mifaff.go.kr/USR/BORD0201/m_380/DTL.jsp?id=B20201000&mode=view&idx=10903. Act on the Prevention of Contagious Animal Diseases, amended by Act No. 7434, Mar. 31, 2005 (Korea). Effective from February 29, 2008, the official name of the Ministry of Agriculture was replaced with Ministry for Food, Agriculture, Forestry and Fisheries due to President Lee’s restructuring of the administrative agencies. This Article will use the designation “Ministry of Agriculture” to avoid confusion. Korean Administrative Procedures Act, supra note 5, arts. 41-42. Nong Rim Bu Go Si [Ministry of Agriculture Notification], Mi Guk San Swe Go Gi Soo Ip Wie Seng Jo Gun [Health Conditions for Importing U.S. Beef ], No. 2006-15 (Mar. 6, 2006) (on file with author). Korea Inst. for Int’l Econ. Policy, Feasibility and Economic Effects of Korea-U.S. FTA 62 n.72 (Dec. 30, 2005) (internal quotation marks omitted), available at http://www.kiep.go.kr/common/board_file_down.asp?131932|1.

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

importation of U.S. beef in October 2007 in response to mounting public concerns over the repeated violations of the 2006 Notification by some U.S. beef exporters.15 Meanwhile, two important developments occurred. First, following ten months of intense negotiations, Korea and the United States signed the Korea-U.S. Free Trade Agreement (KORUS FTA) in June 2007.16 For the United States, the KORUS FTA is the first free trade agreement with a major Asian economy. For Korea, it is the country’s largest free trade agreement.17 As a next step, both governments must seek approval of the KORUS FTA from their respective legislatures. Since Korea submitted the KORUS FTA for approval to the National Assembly in September 2007, it has been waiting for the U.S. government to submit it to Congress.18 Second, in May 2007, the World Organization for Animal Health (OIE) identified the United States as a “controlled risk” country for Bovine Spongiform Encephalopathy.19 Based on the WTO Agreement on Sanitary and Phytosanitary Measures,20 the U.S. government 15

16

17

18

19

20

From when the first shipment arrived in Korea pursuant to the 2006 Notification in October 2006 to when a total ban was placed on U.S. beef imports in October 2007, U.S. beef exporters violated the 2006 Notification sixteen times. For more details on the violations of the 2006 Notification, Jong Won Ko et al., Chot Bul Ae Gil Eul Il Da [Lost in Candlelight], 267-68 (2009). Press Release, Office of the U.S. Trade Representative, United States and the Republic of Korea Sign Landmark Free Trade Agreement (June 30, 2007), http://ustr.gov/Document_Library/Press_Releases/2007/June/United_States_the_Republic_of_Korea_Sign_ Lmark_Free_Trade_Agreement.html. Korea’s first free trade agreement was with Chile. After the Korea-Chile FTA took effect on April 1, 2004, the Korea-Singapore FTA took effect on March 2, 2006, followed by the Korea-EFTA FTA on September 1, 2006 and the Korea-ASEAN FTA Investment Agreement, which was signed on June 2, 2009. More information on the status of other FTAs entered into by Korea is available at Ministry of Foreign Affairs and Trade, FTA Status of Korea, http://www.mofat.go.kr/english/econtrade/fta/issues/index2.jsp. As of September 30, 2009, the U.S. government has yet to submit for approval the KORUS FTA to Congress. The KORUS FTA was submitted to the Korean National Assembly for ratification in September 2007; however, no action was taken until the term of their office expired in May 2008. See generally, Press Release, Korean Culture & Info. Serv., Ratification of KORUS FTA and FTA Policy for 2008 (Jan. 19, 2008), http://www. korea.net/News/Issues/issueDetailView.asp?board_no=18845&me nu_code=A (stating that the review process of the KORUS FTA was deferred due to the upcoming presidential election in December). Thus, the bill proposing the approval of the KORUS FTA was deemed to have been repealed by operation of law. The Lee Administration again submitted the KORUS FTA to the newly organized National Assembly in October 2008 for approval, but as of September 30, 2009, the National Assembly has not approved the KORUS FTA. E.g., KORUS FTA Bill Submitted to Assembly, KBS News, Oct. 8, 2008, http://english.kbs.co.kr/news/newsview_sub.php?menu=3&key=2008100823. Press Release, U.S. Dep’t of Agric., Statement by Secretary Mike Johanns Regarding U.S. Classification by OIE (May 22, 2007), http://www.usda.gov/wps/ portal?contentidonly=t rue&contentid=2007/05/0149.xml. Agreement on the Application of Sanitary and Phytosanitary Measures, art. 2, para. 2, Apr. 15, 1994, 1867 U.N.T.S. 493.

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demanded that Korea conform to the WTO rules by eliminating the import ban. In particular, the United States stipulated that Korea expand the age limit of the cattle, allow boned meat, and relax the inspection standard so that minute issues like small bone chips do not trigger a suspension of all imported U.S. beef. Influential American politicians strongly signaled that they would not support the KORUS FTA in Congress unless and until Korea resolves the U.S. beef import issue.21 In response, shortly before the conclusion of the KORUS FTA negotiation, then President Roh promised to then President Bush that Korea would reopen the beef market pursuant to the international scientific guidelines of the OIE.22 After the KORUS FTA was concluded, the delegation of the two governments started negotiations of the new conditions that would allow the resumption of importation of U.S. beef. The parties failed to reach an agreement in the first round of negotiations that took place in Seoul in October 2007. President Roh refused to allow the importation of American beef before leaving office in February 2008. The second negotiation began on April 11, 2008 shortly after the inauguration of President Lee in February. The Korean media reported that much progress was not made in this negotiation because the position of the two delegations fell far apart. Taking into consideration the potential threat to the citizens’ health and safety, the Ministry of Agriculture conveyed that it would not accept the demands of the U.S. delegation to fully open the beef market.23 However, on April 18, 2008, the Korean Ministry of Agriculture announced that it had reached an agreement with the United States regarding the new conditions under which Korea would permit the importation of American beef and beef products.24 As 21

22

23

24

Press Release, Committee on Finance, Baucus Reminds Korea’s President Roh: Trade Pact Hinges on End to Beef Ban (Apr. 25, 2007), http://finance.senate.gov/press/ Bpress/2007press/prb042507d.pdf. Alexander Vershbow, in Ambassadors’ Memoir: U.S.–Korea Relations Through the Eyes of the Ambassadors 205, 211 (James M. Lister ed., 2009) (stating that Roh’s failure to keep the promise was a “very serious … disappointment” for the United States and criticizing Roh’s party for developing “collective amnesia” in regards to a proposal former President Roh had made; that is, to fully open up the beef import market in two stages consistent with OIE standards, which was essentially the same conditions that incumbent President Lee agreed to in April 2008). Ministry for Food, Agriculture, Forestry & Fisheries [hereinafter Ministry of Agriculture], http://english.mifaff.go.kr/USR/WPGE0201/m_374/DTL.jsp (last visited Sept. 25, 2009). Mi Guk San Swe Go Gi Dan Gye Juk Soo Ip Hwak Dae Hap Eui [Agreement to Expand Importation of U.S. beef in Stages], Dae Han Min Guk Jung Chek Portal [Korea Policy Portal] (Apr. 18, 2008), http://korea.kr/newsWeb/pages/brief/ categoryNews2/view. do?newsDataId=148650947&category_id=subject&currPage=. President Lee was scheduled to meet with President Bush the following day at Camp David. The timing of the announcement – that the Ministry of Agriculture had concluded negotiations – aroused public suspicion that the Korean government succumbed to pressure from the United States in order to secure President Bush’s support, and ultimately, Congress’s approval of the KORUS FTA. But, coincidence or not, former Ambassador Vershbow expressed that the Korean government would not have been able to realistically expect the approval of

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

the implementation of the Agreement required an amendment to the 2006 Notification, the Ministry published on April 22, 2008 the major contents of the new beef import agreement and sought public opinion pursuant to KAPA. The Ministry set the deadline for public comments until May 13.25 When the contents of the Beef Agreement became known to the Korean public, journalists and civil society groups, they requested to know the basis for this sudden shift in policy and whether the government had taken due consideration of the citizens’ health and safety when it agreed to expand the scope of U.S. beef shipped to Korea and to relax inspection standards. In response, the government explained that the U.S. beef to be imported was the same safe beef that Americans consumed daily and that Korea had to accept the OIE international standard unless objective scientific grounds justified deviation from the OIE guidelines. Special hearings were held at the National Assembly, but with the sensationalism of the beef controversy stirred by certain local media26 and the Internet, they failed to ease the public’s concerns. Soon mass demonstrations took place in the streets of Seoul.27 Protestors demanded renegotiation of the Beef Agreement to reduce the scope of imported U.S. beef and to restore Korea’s full right to inspection. Opposition party politicians and leaders of NGOs critical of the Lee administration joined the crowds in the street demonstrations. President Lee’s approval ratings dropped sharply to lower than twenty percent.28

25

26

27 28

the KORUS FTA by Congress if President Lee had not done “the right thing.” Vershbow, supra note 22, at 211.Yet, Vershbow admits that President Lee delivered his decision to open up the Beef Agreement without fully preparing the public. Id. Nong Rim Soo San Sik Poom Bu Gong Go [Ministry of Agriculture Notice], Mi Guk San Swe Go Gi Soo Ip Wie Seng Jo Gun Gae Jung An Ip An Ye Go [Notice on Proposed Import Health Conditions for U.S. Beef ], No. 2008-45 (Apr. 22, 2008) (on file with author). Some of the local media’s sensationalism in dealing with the beef controversy further fueled the public’s fear of American beef. MBC TV, one of three most influential national television broadcasting companies, aired a special investigative program on the possible risks of eating American beef on April 29, 2008 and May 13, 2008. The program detailed the supposed horrors of the U.S. beef industry and highlighted the alleged high risks of eating American beef. The program was instrumental in spreading the unproved theory that Koreans are genetically susceptible to the potentially fatal illness caused by eating beef contaminated by mad cow disease. The validity of this program was sternly questioned by the Ministry of Agriculture. Later, through the investigation of the Korean prosecutors, it was discovered that the program directors manipulatively insisted that the scriptwriter deliberately mistranslate the English source documents. For a detailed analysis of this television program and its influence on the general public, Ko et al., supra note 15, at 15-84. E.g., Thousands Protest U.S. Beef in S. Korea, CBS News, May 31, 2008, http://www.cbsnews.com/stories/2008/05/31/world/main4142669.shtml. E.g., Lee’s Approval Rating Plunges to 17, KBS News, June 4, 2008, http://english.kbs. co.kr/news/newsview_sub.php?menu=2&key=2008060407. Interestingly, 82 of the survey respondents indicated that they support the ratification of the KORUS FTA.

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The Korean government maintained that renegotiation was not legally possible and that it would hurt Korea’s international credibility despite the public’s growing objection to the Beef Agreement. With protests ongoing in Korea, U.S. Senate Finance Committee Chairman Max Baucus reiterated his position that he would oppose the KORUS FTA unless Korea “imports [ ] all U.S. beef, whether it’s bone-in or boneless, regardless of the age of the cattle” and honors the agreement signed back in April in which it agreed to remove the restrictions put on U.S. beef.29 In light of the serious domestic reaction, however, the Agriculture Minister postponed finalization of the proposed amendment to 2006 Notification. The Minister explained that the delay was due to the fact that the public submitted more than three hundred opinions and that the Ministry needed time to review the public opinions. After telephone consultation with President Bush on June 7, 2008, President Lee instructed the Minister of Trade to visit Washington D.C. and explore “additional negotiations” with the United States to prohibit U.S. beef from cattle aged thirty months or older from entering into Korea because it had become apparent that the Korean government was no longer in a position to ignore public opinion.30 Finally, on June 25, 2008, the Korean government succeeded in securing additional safeguards in the form of a “private sector initiative.”31 The letter, which was jointly signed by then U.S. Trade Representative Susan Schwab and Secretary of Agriculture Edward Schafer, confirms that Korea will import U.S. beef from cattle less than thirty months of age until Korean consumer confidence improves.32 The Ministry of Agriculture published the 29 30

31

32

Press Release, Committee on Finance, Baucus Comments on U.S.-Korea Beef Changes (June 21, 2008), http://finance.senate.gov/press/Bpress/2008press/ prb062108.pdf. Press Release, Ministry of Foreign Affairs & Trade, Tong San Gyo Sub Bon Bu Jang Briefing [Briefing by the Minister of Trade] (June 12, 2008), http://fta.go.kr/user/intro/notice_print.asp?idx=2589. The private sector initiative, in relevant part, takes the form of the voluntary commitments made by Korean importers and U.S. exporters to trade only U.S. beef from cattle less than 30 months ago. If Korean government inspection officials were to find any beef shipped to Korea from cattle not less than thirty months old, they may return the relevant beef or beef products. Also, Korea will receive imports of brain, eyes, skull, or spinal cord from cattle less than thirty months old only when an order is placed, and if such products are found in the shipments, Korea has the right to return those goods. In addition, Korea is not limited from performing on-site audits of a sample, but may audit, and on appropriate occasions, re-audit a specific beef plant. Briefing Material, Ministry of Foreign Affairs and Trade and Ministry of Agriculture, Mi Kook San Swe Go Gi Choo Ga Hyup Sang Gyul Gwa [Results of Additional Negotiation on U.S. Beef ], June 21, 2008 available at http://mifaff.korea.kr/gonews/branch.do?act=detailView&type=news§ionld =b_sec_1&categoryld=&datald=155301802; Han-Mi Swe Go Gi Choo Ga Hyub Sang Gyul Gwa Moon Suh [Korea-U.S. Results of the Additional Beef Negotiations], Chosun.com, June 25, 2008, http://news.chosun.com/site/data/html_dir/ 2008/06/25/2008062501043. html. Letter from Susan Schwab, U.S. Trade Representative & Edward Schafer, U.S. Sec’y of Agric., to Jong Hoon Kim, Korea Minister for Trade & Woon Chun Chung, Minister for Food, Agric., Forestry and Fisheries (June 25, 2008), available at http://www.ustr.gov/assets/Document_Library/Fact_Sheets/2008/asset_upload_file470_14958.pdf (stating that

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

amended notification that went into effect from June 26, 2008 (2008 Notification).33 Still displeased with the 2008 Notification, some civil society groups filed an action before the Korean Constitutional Court challenging the constitutionality of the 2008 Notification.34 In December 2008, the Constitutional Court dismissed the challenges brought by civil groups and upheld the validity of the 2008 Notification.35 In the meantime, the National Assembly passed the amendment to the Animal Diseases Act, which requires an advance review by the National Assembly if the Ministry of Agriculture intends to allow importation of American beef from cattle aged thirty months or older.36 The National Assembly thereby installed a mechanism to control the action of the Ministry of Agriculture relating to the expansion of the scope of U.S. beef to be allowed into Korea in the future.

33

34

35

36

the private sector initiative is a transitional measure voluntarily taken by Korean importers and U.S. beef exporters to facilitate consumer confidence). Nong Rim Soo San Sik Poom Bu Go Si [Ministry of Agriculture Notification], Mi Guk San Swe Go Gi Soo Ip Wie Seng Jo Gun [Health Conditions for Importing U.S. Beef ], No. 2008-15 (June 26, 2008) (on file with author). During this process, President Lee made two public apologies and reshuffled some of his cabinet members, which included accepting the resignation of the Minister of Agriculture, after the 2008 Notification took effect. E.g., S. Korea President Drops Aides Over Beef Crisis, CNN.com, June 20, 2008, http://edition.cnn.com/2008/WORLD/asiapcf/ 06/20/skorea.beef/index.html. In his apologies, Lee stated that his administration had underestimated the public’s concerns on the safety of imported U.S. beef and expressed regret for the lack of efforts put into communicating with the people. E.g., Stella Kim & Blaine Harden, S. Korea’s Lee Offers New Beef Apology, Wash. Post, June 20, 2008, http://www.washingtonpost.com/wpdyn/content/article/2008/06/19/AR2008061901299.html. According to these civil groups, the 2008 Notification is unconstitutional because it violates the government’s duty to protect the health of its citizens, which is guaranteed in the Korean Constitution. Constitution, Art. 36 (3) (1987) (Korea) (“[t]he health of all citizens shall be protected by the state”). Constitutional Court of Korea, 2008 Hun Ma 419, 423, & 436 (Const. Ct., Dec. 26, 2008) (the Constitutional Court consolidated the three cases brought against the Ministry of Agriculture into this single decision). The Constitutional Court was unanimous in agreeing that, based upon the principle of separation of powers, judicial review of this case was limited to determining whether the executive branch had failed to meet the minimum standard in protecting the health and safety of citizens, which are deemed to be fundamental individual rights under the Korean Constitution. However, opinions differed as to what the least level of protection should entail. The majority thought that the government’s acceptance of the international guidelines recommended by the OIE was sufficient to meet the minimum level of due care owed to the Korean citizens. However, one dissenting justice stated that the OIE guideline is a mere guideline and that the government should have looked into other factors such as the eating habits of the Korean people to independently assess the potential threat of imported beef to national health.. Act on the Prevention of Contagious Animal Diseases, amended by Act No. 9130, Sept. 11, 2008 (Korea).

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In responding to the demands for renegotiation of the Korea-U.S. Beef Agreement, the options available to the Korean government depend on (1) what the legal status of the Beef Agreement is under international law, and (2) whether Korea’s commitment to implement the Beef Agreement is unconditional or subject to KAPA’s procedures for public notice and comment. Let us briefly review the details of the Beef Agreement. On April 18, 2008, Min Dong-Seok, Deputy Minister of the Korean Ministry of Agriculture and A. Ellen Terpstra, Deputy Under Secretary of the U.S. Department of Agriculture signed a five-page document entitled the Agreed Minutes of the Korea-United States Consultation on Beef (Beef Agreement).37 The Beef Agreement states that the two delegations held consultations on the conditions for resumption of U.S. beef imports into Korea and reached agreement on a new protocol for the importation of beef and beef products from the United States into Korea. A copy of the agreed protocol, entitled “Import Health Requirements for U.S. Beef and Beef products,” is attached to the Beef Agreement so that the Korean government might adopt the exact contents of the agreed protocol in its domestic regulation for implementation. With respect to the first question, opinions are split among Korean legal scholars. Some legal scholars and jurists, mostly critical of the Lee Administration’s policy, have presented various arguments questioning the validity of the Beef Agreement as a binding international agreement. Some of them argue that the Beef Agreement is simply a record of a “consultation,” and could be, at most, a gentlemen’s agreement.38 Alternatively, others argue that the Beef Agreement should not be viewed as a validly “signed” agreement because the respective signatory to the Beef Agreement has not produced the full powers to sign the Beef Agreement. The argument follows that the Beef Agreement could only be viewed as an “initialed” document, not a “signed” document that has a binding effect on the parties.39 Another argument states that even if the Beef Agreement was an international agreement, substantive issues dealt with therein significantly affect the health and safety of Korean citizens, and therefore could not be delegated to the ministry notification level under Korean Constitution.40 This argument contends that the Beef Agreement was signed by the Deputy Minister of the Ministry of Agriculture without approval by the National Assembly, which could be viewed as a very serious defect in the treaty-making procedure mandated 37 38

39

40

Beef Agreement, supra note 6. Yang Gu Kang, Choo Ga Hyup Sang? Jong Hoon Kim Yi Dae Tong Ryung Gua Guk Min Eul Sok Yi Ko It Da [Additional Negotiation? Jong Hoon Kim Is Deceiving the President and the People], Pressian, June 17, 2008, http://www.pressian.com/article/article. asp?article_num=60080616213647 (interviewing Sung Hoon Kim, the former Minister of Agriculture). Young Sok Kim, Han Mi Swe Go Gi Soo Ip Hab Eui Eui Guk Je Bub Juk Gum To [A Review of the Korea-U.S. Beef Agreement in International Law Perspective], 15 Seoul Guk Je Bub Yun Goo [Seoul Int’l L.J.] 29, 37-38 (2008) (Korea). Id. at 38-42.

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

by the Constitution. Therefore, the Beef Agreement has no legal effect under Korean Constitution and laws.41 These opinions questioning the validity of the Beef Agreement under international and domestic laws were largely presented to support the demands for total renegotiation of the Beef Agreement. However, the Korean government rejected these arguments, instead declaring that the Beef Agreement is a binding international agreement duly signed by representatives of both countries. The Minister of Trade stated that seeking renegotiation of a binding international agreement was not legally possible, but proposed that the government would seek additional negotiations with the U.S. government to address the public health and safety concerns. A prominent Korean legal scholar of international law expressed support for the position of the Korean government.42 This scholar stated that the Beef Agreement was a validly signed international agreement and therefore binding upon the parties. According to him, the Beef Agreement is an international “treaty” dealing with rights and obligations of Korea and the United States. In his view, as the Beef Agreement did not provide for any further procedure or formality to become effective and the ratification was not required by the domestic laws of each party-state, the Beef Agreement had become effective upon signature by the representatives of two parties. Considering the parties’ intentions as expressed in the wording of the Beef Agreement and the signatures affixed thereto, as well as the parties’ history of dealing with the same issue in 2006 (which led to the 2006 Notification) and the past practices of Korea and the United States when entering into agreements at the executive branch level, it is hardly convincing to argue that the Beef Agreement is not a binding international agreement that is governed by international law. To this extent, this author supports the view that the Korea-U.S. Beef Agreement is a binding international agreement that had become effective on April 18, 2008 upon signature by the representatives of two parties. With respect to the second question regarding the extent of Korea’s commitment under the Beef Agreement, it is important to point out that the Beef Agreement makes explicit references to both the Korean and the U.S. administrative procedure laws.43 In particular, the final paragraph of the Beef Agreement on the “Timeline for 41

42

43

Id. at 41-44. While Professor Kim recognizes the Beef Agreement as an international agreement that has no legal effect under Korean law, he does not discuss the ramifications of the Beef Agreement under international law; that is, whether Korea is still under the obligation to perform the conditions agreed to in the Beef Agreement or whether Korea may unilaterally repudiate those international commitments on the basis that it has no domestic effect under Korean law. See Won Mok Choi, Chot Bul Eui Myung Ryung Ae Hui Dul Lee Nin Dae Han Min Guk [Power of the Candlelight to Command Korea], Chosun.com, June 11, 2008, http://news. chosun.com/site/data/html_dir/2008/06/11/2008061101990.html. Professor Choi reasons that at the end of the twenty day public comment period, Korea is obligated to implement the Beef Agreement because the agreement itself is valid under international law. Beef Agreement, supra note, 6, at 2 (stating that the United States’ review of the OIE designation of Korea’s foot-and-mouth status will be done “within the parameters of the

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Implementation of Protocol” [hereinafter Timeline in Beef Agreement] states the following:44 Korea stated that no later than April 22, 2008, the Ministry for Food, Agriculture, Forestry and Fisheries will publish for public comment the import health requirements for beef and beef products contained in the protocol. As soon as the public comment period required by Korea’s Administrative Procedures Act closes (twenty days after publication), the protocol will be published as a final regulation. … Korea indicated that it expects the regulatory process will be concluded and enter into force as of May 15, 2008.

According to Articles 26 and 27 of the Vienna Convention on the Law of Treaties, a treaty must be performed in good faith and a party’s internal law cannot be invoked as an excuse for nonperformance of a treaty.45 If KAPA were not specifically mentioned in the Beef Agreement, then invoking it would not be justifiable under Article 27 of the Vienna Convention. However, in this case, the reference to the respective administrative procedures laws indicates that the representatives of both countries were fully cognizant of the potential legal implication of making such a reference in an international agreement. In short, the parties understood that the implementation of the Beef Agreement would be linked to the domestic processes of each country. This explicit reference to a domestic rulemaking procedure in the main text of the Beef Agreement raises the complex issue of how the internal procedural requirement of KAPA (that public opinions be taken into consideration in the government’s decision-making process) can be integrated at the international decision-making level. Under Korean law, in order to implement the Beef Agreement, as explained earlier, the Ministry of Agriculture has to amend the 2006 Notification to reflect the terms and conditions set forth in the Beef Agreement. The amendment of the 2006 Notification is subject to the KAPA procedure.46 The purpose of the public comment process under KAPA is to guarantee public access to and participation in the administrative rulemaking process, thus giving the people the right to present their opinion critical of a proposed administrative regulation before it becomes effective.47

44 45 46 47

U.S. Administrative Procedures Act”); id. at 3 (stating that Korea’s application to export ginseng chicken to the U.S. will be reviewed “within the parameters of the U.S. Administrative Procedures Act”); id. at 4 (stating that the enhanced feed ban is “in the final stages of the rulemaking process under the U.S. Administrative Procedures Act”). Beef Agreement, supra note 6, at 5. Vienna Convention on the Law of Treaties, arts. 26-27, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter Vienna Convention]. Korean Administrative Procedures Act, supra note 5, arts. 41-45. Id. The public comment process is not required under several conditions including when the regulation bears no effect on the people’s rights and duties, the regulation was enacted in an emergency situation, the regulation is a mere execution of an upper regulation, or, if there are any other reasonable reasons to justify the exemption of the public comment process.

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

The public comment period shall be for at least twenty days.48 Any person has the right to offer his or her opinion on the proposed regulation and the government must treat such opinion respectfully.49 If the regulation in question raises a diverse group of issues, then the government may hold public hearings to facilitate the democratic process.50 KAPA also requires that the administrative agency in charge of the proposed regulation must notify the person who submitted an opinion of the result.51 However, KAPA does not contain specific guidelines on the standard of treatment for the submitted public opinion. During the course of observing the KAPA requirements, the Korean government did not clarify the relationship between Korea’s promise to implement the Beef Agreement and the KAPA procedure. It simply maintained that the renegotiation of the binding international agreement was not possible, and that the public opinions objecting to the proposed amendment to the 2006 Notification solicited by the Ministry of Agriculture52 had failed to present an objective scientific basis to support their position. Many debates have since been had on the implication of the twenty day public comment period. One legal scholar offers a rather literal interpretation of the wording found in the Timeline in Beef Agreement. This scholar argues that Korea’s promise to implement the Beef Agreement is unconditional and that Korea is under the obligation to give effect to the import health conditions as agreed with the U.S. when the twenty day comment period closes.53 According to this argument, the Korean government was under the obligation to execute the Beef Agreement as a final domestic regulation at the end of the public comment period. This scholar contends 48

49 50 51 52

53

Id. art. 43. The Ministry in charge may extend the period depending on the importance, effect, and nature of the regulation, which is rather discretionary. On a related note, the U.S. Trade Representative (USTR) had evidently found the twenty day public comment period to be in need of regulatory reform: “A general lack of transparency in Korea’s rule-making and regulatory system is a cross-cutting issue affecting U.S. firms in many different sectors, and continues to be one of the principal problems cited by U.S. businesses seeking to compete in the Korean market. Korea’s Administrative Procedures Act [(KAPA)] stipulates that the public comment period for draft regulations subject to the [KAPA] shall be no less than [twenty] days. However, in many cases, the [twenty] day minimum is insufficient. In addition, in many instances the final versions of regulations do not reflect the comments provided.” Office of the USTR, 2008 National Trade Estimate Report on Foreign Trade Barriers, Korea (2008), http://www.ustr.gov/sites/default/ files/uploads/ reports/2008/NTE/asset_upload_file716_14634.pdf. Korean Administrative Procedures Act, supra note 5, art. 44(3). Id. art. 45(1). Id. art. 44(4). Ministry of Agriculture Notice, supra note 25. The Ministry of Agriculture published the notice soliciting the people’s opinion on April 22, 2008 and requested that all submissions be made no later than May 13, 2008. Won Mok Choi, Han Mi Swe Go Gi Hyup Sang Hap Eui Moon Ae Dae Han Guk Je Bub Juk Pyung Ga Wa Dae Chaek Bang Hyang [Legal Analysis of the Agreed Documents in Korea-U.S. Beef Negotiations and Policy Directions for Korea], 82 Tong Sang Bub Ryul [J. Int’l Trade L.] 11, 16 (2008).

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that the serious negotiations of the two countries cannot be uprooted by the outcome of the public comment process. The language contained in the final paragraph of the Timeline in Beef Agreement is not entirely clear. That Korea reserved the right to implement the Beef Agreement subject to KAPA’s requirement of the twenty day public comment period by the reference to KAPA is a very plausible counter-argument given the legislative intent of KAPA in the domestic decision-making process and the importance of building consensus in a democratic society. The Korean government is under the legal obligation to follow in good faith the KAPA procedure – both in form and substance. Several important considerations support this counter-argument. First, when Korea agreed to partially resume importation of U.S. beef in 2006, the Ministry of Agriculture abided by the same KAPA procedure.54 The U.S. delegations were therefore aware of the KAPA requirement. Second, the chief Korean negotiator was a deputy minister level officer who did not have the authority to waive the KAPA requirements in the negotiation with the United States. Furthermore, the Beef Agreement also includes an explicit provision stating that the U.S. government will conduct its obligations “within the parameters of the U.S. Administrative Procedures Act.”55 Thus, it is logical to infer that the United States and Korea fundamentally each understood that the other would be required to conform to their respective domestic administrative procedures.56 The argument that Korea must execute the Beef Agreement as a final regulation when the public comment period expires57 is a far-fetched assumption that the two countries’ representatives agreed to a perfunctory application of the KAPA requirement. A more rational interpretation is that the parties, with their mutual knowledge of the counterparty’s administrative procedures requirement, agreed that (1) the Korean government will publish the import health conditions for the public comment period by April 22, 2008; (2) the Korean government will act in good faith with the objective of implementing the agreement into a final regulation; and, (3) as long as the KAPA process does not raise any serious issues, the parties can expect the final regulation to become effective from May 15, 2008. In this regard, it is important to note that in the final sentence of the Timeline in Beef Agreement, “Korea indicated that it expects the regulatory process will be concluded and enter into force as of May 15, 2008.”58 If the parties agreed to make Korea’s promise absolute and unconditional, they would have used wording that is 54 55 56

57 58

This author was unable to obtain a copy of the Korea-U.S. agreement which led to the 2006 Notification through publicly available sources. E.g., Beef Agreement, supra note 6, at 2. In acting in accordance with the each country’s domestic administrative procedures, the Beef Agreement gave a certain degree of flexibility to the United States to implement its obligations “within the parameters of the U.S. Administrative Procedures Act,” while attempting to bind the Korean government tighter by putting in deadlines for publication of the notice soliciting public comments. Choi, supra note 53. Beef Agreement, supra note 6, at 5.

41 Hi-Taek Shin, The Domestic Decision-Making Process and Its Implications for International Commitments: American Beef in Korea

more definite as a means to bind Korea unconditionally. For instance, if the parties intended to make Korea’s commitment unconditional, they could have omitted the reference to KAPA and simply require that Korea implement the Beef Agreement by May 15, 2008. Certainly, the international law perspective is that Korea is under the obligation to bona fide perform the Beef Agreement and refrain from taking any action that defeats its object and purpose during the public comment process. However, if the Ministry of Agriculture finds that in the course of complying with KAPA the public raised substantial health and safety concerns relating to the Beef Agreement, then it is obliged to take appropriate measures to address the public concerns such as by holding public hearings or organizing a special task force to examine the scientific basis of the concerns raised by the public. If, through this process, scientific evidence that supports the public objection to the implementation of the Beef Agreement was presented, then Korea may be excused from implementing the Beef Agreement. Depending upon the merits of the public comments, the Korean government may delay implementation of the Beef Agreement until a risk assessment of the public health and safety concerns have been made or demand modification of the terms of the initial agreement to the extent justified by the objective scientific evidence. Whether the United States accepts such a delay in the implementation of the Beef Agreement or Korea’s demand for modification or not is a decision to be made by the U.S. government. What is important is that Korea’s failure to implement the Beef Agreement at the end of the twenty day public comment should not be viewed as a breach of the Beef Agreement as long as Korea acted in good faith. The subsequent series of events leading to the additional negotiation and 2008 Notification support the foregoing arguments. Although the Korean government deliberately created the appearance that it would not seek renegotiation, in reality, Korea sought renegotiation of the major conditions of the Beef Agreement and the United States agreed to the demands for renegotiation. Both parties were persistent in calling that process “additional consultation” and “additional negotiation” rather than renegotiation. In hindsight, if the Korean government had taken the position from the outset that the Beef Agreement was subject to the KAPA procedure, thus faithfully following the KAPA procedure and giving more respect to public opinion in the consensus building process, it might have been more successful in having the Beef Agreement implemented in an orderly manner. The focus of the public debate in Korea would have been directed to verifying whether an objective scientific basis exists for the health and safety concerns raised over American beef rather than being a highly politicized spectacle filled with polarizing rhetoric and physical confrontation between different factions. Furthermore, the Korean public would not have received the indelible impression that its government was unfairly demanding that ordinary people present scientific evidence to prove the risk of consuming U.S. beef. IV. Conclusion Like other countries in the world, Korea faces the critical challenge of upgrading its domestic decision-making processes relating to international trade agreements.

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Until the late 1980s, policymaking in Korea was monopolized by a few political elites. Yet, with rapid democratization and an increasingly active civil society, demands for meaningful public participation in Korea’s decision-making process, especially on international trade issues, are growing stronger. Ordinary citizens want their voices to be reflected in the country’s decision-making process, especially on issues that affect their health, safety, and living environments. Paradoxically, the position that the Korean government took in the U.S. beef controversy in order to maintain its international credibility ultimately hurt the government’s domestic credibility, which in turn weakened its ability to perform its international commitments. The U.S. beef controversy highlights the need for trade negotiators to carefully consider the domestic decision-making process of their counterparties when negotiating international trade agreements. It also teaches us the increasingly important role that domestic policymaking processes play in maintaining the viability of our international legal system, especially in our currently charged economic environment.

Chapter 42 Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration Albert Jan van den Berg*

I. Introduction Dissenting opinions appear to have become an accepted practice in international arbitration. The current debate concentrates on their procedure, form, and content.1 Alan Redfern noted that “[a]t present, a generally relaxed attitude towards dissenting opinions seems to be taken not only by the arbitral institutions, but also by the arbitrators themselves …  .”2 In this contribution, I would like to explore the cautionary note with which Redfern concluded his seminal article, namely, that the “[t]ime has perhaps come to inquire whether the present leniency towards dissenting opinions … has gone too far.”3 I propose to do so with respect to investment arbitrations because many of the awards and dissenting opinions have been made available publicly, including party-appointed arbitrators’ dissenting opinions.4 As a legal matter, arbitrators generally may render a dissenting opinion in investment arbitrations. It is even treaty law, at least for those investor-state arbitrations conducted under the auspices of the International Centre for Settlement of Invest*

1

2 3 4

I am indebted to Devashish Krishan for his valuable support in the research for this contribution and to Susan Franck for a critical review of the draft. The views expressed, however, are those of the author alone. Manuel Arroyo believes that the “scientific debate [about dissenting opinions in international arbitration] has become stale and redundant.” Manual Arroyo, Dealing with Dissenting Opinions in the Award: Some Options for the Tribunal, 26 ASA Bull. 437, 459 (2008). Alan Redfern, Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly, 20 Arb. Int’l 223, 242 (2004). Id. at 242 n.3. Because it is uncommon to publish international commercial awards, “it is difficult to generalize from the sample of published awards,” and hence I will not use them as the basis for analysis in this contribution. Christopher Drahozal, Of Rabbits and Rhinoceri: A Survey of Empirical Research on International Commercial Arbitration, 20 J. Int’l Arb 23, 25 (2003). Investment arbitration awards, on the other hand, are routinely published, whether in full (on websites and in specialized law reporters) or in redacted form (such as pursuant to ICSID Arbitration Rule 48(4).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 821-843.

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ment Disputes (ICSID): “Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or a statement of his dissent.”5 The practice of dissenting opinions originated in the Anglo-American judicial culture in which case law plays a prominent role. England’s House of Lords developed a practice whereby judges would give individual speeches, opening the door to the possibility of dissenting opinions. In the United States, after some initial hesitation, individual judges also began to issue dissenting opinions. The Permanent Court of International Justice (PCIJ) and its successor, the International Court of Justice (ICJ), also permit dissenting opinions.6 In contrast, civil law states generally disallow dissenting opinions, principally because of their emphasis on collegiality in the dispensation of justice.7 Similarly, the 1899 Hague Convention on the Pacific Settlement

5

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Convention on the Settlement of Investment Disputes Between States and Nationals of Other States art. 48(4), June 10, 1966, 17 U.S.T 1270, 575 U.N.T.S. 160 [hereinafter ICSID Convention]. The issue of dissenting opinions was first raised by Mr. Tsai, the Chinese representative, at the Third Session of the Asian Regional Meeting on April 29, 1964. ICSID (W. Bank), History of the ICSID Convention: Documents Concerning the Origin and the Formulation of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 458, 515 (1968). Although the representatives did not discuss this particular issue elaborately during the regional meetings, the Draft Convention of September 11, 1964, prepared for the Legal Committee, provided in draft Article 51(3) that “except as parties agree: (a) the award shall state the reasons upon which it is based; and (b) any arbitrator dissenting from the majority decision may attach his dissenting opinion or a bare statement of his dissent.” Id. at 610, 624; see also Christoph Schreuer et al., The ICSID Convention: A Commentary (2d ed. 2009) 830-34. A draft of Article 56 of the Statute of the Permanent Court of International Justice, prepared by the Advisory Committee of Jurists, provided that “dissenting judges shall be entitled to have the fact of their dissent or reservations mentioned,” but to this was added, “[b]ut the reasons for their dissent or reservations shall not be expressed in the judgment.” P.C.I.J: Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee: 16 June-24 July 1920 (1920). The League of Nations did not adopt this proposal. The final version of the Statute provided: “If the judgment does not represent in whole or in part the unanimous opinion of the judges, dissenting judges are entitled to deliver a separate opinion.” Statute of the Permanent Court of International Justice art. 57, Dec. 16, 1920, 6 L.N.T.S. 380 (1926). Some exceptions exist today: for example, judges of the German Constitutional Court may issue dissenting opinions.

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

of International Disputes does not allow dissents.8 Nor does the European Court of Justice.9 II. Dissenting Opinions by Party-Appointed Arbitrators in Practice Those who favor giving arbitrators the right to issue dissenting opinions in investorstate arbitrations rely mainly on four arguments: (i) it will lead to a better award; (ii) the majority will act more responsibly; (iii) it will bolster party confidence in the process; and (iv) it will contribute to the development of the law. The first argument presumes that “a well-reasoned dissent can help ensure that the majority opinion deals with the most difficult issues confronting it.”10 That may be true, but is it not the task of any competent tribunal to ensure that it deals with all relevant and important issues, including “the most difficult” ones? The second argument begs the question whether an arbitral tribunal would act less responsibly without (the threat of ) a dissenting opinion. Again, that presumption is difficult to verify. The third and fourth arguments appear to be based on the practices of certain national courts (notably those in common-law states) and international courts (notably 8

During the Third Commission’s session (the plenary session charged with adopting the final text of the Hague Convention), M.E. Rolin, a Belgian representing Siam, suggested that “the reasons for the vote of the minority be given in the arbitral award.” Chevalier Descamps, representing Belgium, replied that “this would give the appearance of there being two judgments and of laying the dissent of the arbitrators before public opinion. The dissenting arbitrators are allowed to state their dissent, but it would not be safe to go further than that.” Mr. Rolin did not press the point, concluding that though still of the opinion that it would be preferable if the arbitrators who do not concur in the award were invited to state officially the reasons for their dissent, does not consider this absolutely necessary. Mr. Rolin therefore refrains from presenting a formal amendment. He presumes that the arbitrators who are unable to give the reasons for their views immediately after the rendering of the award will not fail to do so without in their reports to the Governments or even to the press. The drawback of having the dissent of the arbitrators brought to public notice will therefore not be completely prevented, whatever may be the reporter’s opinion, and that is why Mr. Rolin deemed it preferable to limit at the outset the object and the scope of the dissent by inviting the arbitrators who do not concur in the award to give on the spot the reasons for their dissenting vote.

9 10

The Proceedings of the Hague Peace Conferences: Translation of Official Texts 616-17 (J.B. Scott ed., 1920) [hereinafter Proceedings of the Hague Conferences]. As a result, Article 52(2) of the 1899 Hague Convention on the Pacific Settlement of International Disputes, July 29, 1899, 32 Stat. 1779, 1 Bevans 230, provides: “Those members who are in the minority may record their dissent when signing [the Award].” Article 79 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, Oct. 18, 1907, 36 Stat. 2199, 1 Bevans 577, which is said to have improved upon the 1899 Convention, does not mention dissents at all. Vlad Perju, Reason and Authority in the European Court of Justice, 49 Va. J. Int’l L. 307, 308 (2009). Richard Mosk & Tom Ginsburg, Dissenting Opinions in International Arbitration, 15 Mealey’s Int’l Arb. Rep. 6 (2000).

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the ICJ). Those courts, however, operate in settings and with dynamics that differ to a certain extent from those that prevail in international arbitration. An inquiry into the actual practices of investment arbitrations may therefore be more useful. To that end, one may examine both the Investment Treaty Arbitration (ITA) and ICSID websites (freely accessible), which contain approximately 150 publicly reported decisions, whether jurisdictional or on the merits, in investment cases.11 As the 150 decisions show, three-member tribunals decide most investment arbitrations.12 The prevailing method for selecting the arbitrators is for each party to appoint an arbitrator and then for the two party-appointed arbitrators to appoint the presiding arbitrator. The 150 decisions show that the presiding arbitrator rarely dissents.13 Given the negligible number of dissents by presiding arbitrators, they can be left aside. The 150 decisions also show that a party-appointed arbitrator issued a dissenting opinion in 34 cases (that is, in approximately 22 percent of the 150 cases under analysis). The Annex to this contribution summarizes them. The astonishing fact is that nearly all of those 34 dissenting opinions were issued by the arbitrator appointed by the party that lost the case in whole or in part. A nearly 100 percent score of dissenting opinions in favor of the party that appointed the dissenting arbitrator is statistically significant. In a tribunal of three, one could imagine that there is about a 33 percent chance that the dissenting opinions would be in favor of that party; or, if one eliminates the presiding arbitrator, the chance may be about 50 percent. It is said that “the parties are careful to select arbitrators with views similar to theirs.”14 Assuming—generously—that such a factor influences half of dissenters,15 the percentage could be assessed to be about 75 percent. But the statistics show that dissenting opinions are almost universally issued in favor of the party that appointed the dissenter.16 11

12

13

14 15

16

Chronological Listing of ITA Arbitrations, http://ita.law.uvic.ca/chronological_list.htm (last visited July 23, 2009); ICSID Cases, http://icsid.worldbank.org/ICSID/Index.jsp (follow “Cases” hyperlink; then follow “Search Cases” hyperlink) (last visited July 23, 2009). This contribution does not deal with the Iran-US Claims Tribunal’s awards and decisions because of that tribunal’s sui generis circumstances, even though a number of those awards and decisions may be deemed investment disputes. See infra nn.53-54. One recent survey of 102 investment arbitration awards found that three-member tribunals rendered 100 of them. Susan Franck, Empirically Evaluating Claims About Investment Treaty Arbitration, 80 N.C. L. Rev. 1, 77 (2007). One of those rare examples is Professor Prosper Weil’s dissenting opinion in Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18 (Apr. 29, 2004) (Decision on Jurisdiction) (Weil, dissenting), available at http://ita.law.uvic.ca/documents/tokios-dissenting_opinion_000.pdf. Having opined that the tribunal lacked jurisdiction, Professor Weil resigned before the tribunal heard the matter on the merits. Mosk & Ginsburg, supra note 10, at 9. This is already a generous percentage because normally one would not know how an arbitrator will evaluate the facts, and it is a rule of thumb that in most cases the facts constitute 80 of the case. Arbitrators appointed by the investor have dissented slightly more (nineteen cases) than arbitrators appointed by the host state (sixteen cases), and in one case, Duke Energy Int’l

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

That nearly 100 percent of the dissents favor the party that appointed the dissenter raises concerns about neutrality. While treaty law and arbitration rules allow dissents, they also require that an arbitrator be impartial and independent.17 That applies not only to the presiding arbitrator but also to the party-appointed arbitrators. Few exceptions for party-appointed arbitrators exist: they may confer ex parte with the party that appointed them about the selection of the presiding arbitrator. It is also an implied duty that they ensure that the tribunal consider the arguments of the party that appointed them. This duty does not, however, mean that the party-appointed arbitrator may act as an advocate for the party that appointed him or her. The nearly 100 percent score is difficult to reconcile with the neutrality requirement.18 In view of the foregoing, one wonders whether, in fact, “[d]issents can help build confidence in the process” or “enhance the legitimacy of the process by showing the losing party that alternative arguments were considered, even if ultimately rejected.”19 One also wonders whether (the possibility or threat of ) a dissent really does “force the majority to develop sounder arguments.”20 Indeed, it is hard to see how dissenting opinions enhance the quality of arbitral decision-making given that almost 100 percent of the dissents are issued by party-appointed arbitrators and almost 100 percent of them favor the party that appointed the dissenter. Moreover, the arbitral tribunal has a duty to address all relevant and important arguments that a party has advanced. If a tribunal fails to do so, its award may be set aside. Compliance with that duty

17

18

19 20

Peru Inv. No. 1, Ltd. v. Peru, ICSID Case No. ARB/03/28 (Feb. 1, 2006) (Decision on Jurisdiction), both party-appointed arbitrators dissented. See infra Annex. In another arbitration, both co-arbitrators, one party-appointed and the other appointed by an appointing authority, dissented. AMT v. Zaire, 5 ICSID Rep. 11 (Feb. 21, 1997) (Award). The present contribution does not take the latter arbitrator’s dissenting opinion into account statistically because it concerns dissenting opinions by party-appointed arbitrators. See ICSID Convention, supra note 5, art. 14(1) (“Persons designated to serve on the Panels shall … exercise independent judgment.”); id. art. 57 (allowing disqualification of panel members who violate art. 14(1)’s requirements); Int’l Chamber of Comm., Rules of Arbitration, art. 7(1) (Jan. 1, 1998) (“Every arbitrator must be and remain independent of the parties involved in the arbitration.”); London Ct. Int’l Arb., LCIA Rules, art. 5(1) (“All arbitrators conducting an arbitration under these Rules shall be and remain at all times impartial and independent of the parties; and none shall act in the arbitration as advocates for any party … .”); UNCITRAL Arbitration Rules, G.A. Res. 31/98, art. 9, U.N. Doc. A/31/17 (Dec. 15, 1976) (requiring disclosure by an arbitrator of justifiable doubts as to his impartiality and independence); Id. art. 10 (allowing a party to challenge an arbitrator if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence). Recall, however, that dissenting opinions were rendered in 34 of 150 decisions (about 22). Hence, unanimous outcomes obtained in about 78 of the decisions. Because of the secrecy of deliberations, it is not possible to comment, with anything other than anecdotal experience, upon any real or perceived partisanship on the part of party-appointed arbitrators in unanimous tribunals. This issue is therefore not studied in this contribution. Mosk & Ginsburg, supra note 10, at 7. Id.

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826

would not seem to require the mechanism or threat of a dissenting opinion. The argument that dissenting opinions contribute to the development of the law is also contradicted by the 150 reported investment arbitration awards. With one curious exception,21 in none of the investment cases did the arbitrators refer to a dissent in a previous investment case.22 Although it cannot be supported empirically, one 21

22

The sole exception that could be found is Helnan International Hotels A/S v. Arab Republic of Egypt, ICSID Case No. 05/19, ¶ 125 (July 3, 2008) (Decision on Award) (“[A]n international tribunal must accept the res judicata effect of a decision made by a national court within the legal order where it belongs.”), available at http://ita.law.uvic.ca/documents/ HelnanAward.pdf. In support of that statement, the tribunal referred to a passage in the dissenting opinion in Fraport AG Frankfurt Airport Services Worldwide v. Philippines, ICSID Case No. ARB/03/25, § 26 (Aug. 16, 2007) (Award) (Bernardo Cremades, dissenting) (“This Tribunal is bound to apply Philippine law to the interpretation of the Anti-Dummy Law (Art. 42 of the Washington Convention), and it manifestly exceeds its powers if it does not do so. It is not bound by a decision of the Philippine court—even the Supreme Court—but its own judgment on Philippine law must be premised on the Philippine law itself. It is the res judicata in Philippine law that the Terminal 3 concession is null and void ex tunc and not ex nunc, and this must be accepted by the Arbitral Tribunal. In my view, the Tribunal should respect the consequences of the Supreme Court decision. On this basis it is impossible for Piatco, or Fraport, to be guilty of any breach of the Anti-Dummy Law.”), available at http://ita.law.uvic.ca/documents/FraportAward.pdf. The tribunal’s reliance on this dissenting opinion is remarkable because there is a large number of precedents, representing unanimous or majority awards, that make the same point. Actually, in the alphabetical listing of investment awards, one need go no further than the As to find an example of a unanimous award that has been referred to many times in subsequent awards and literature: Azinian, Davitian, & Baca v. Mexico, ICSID Case No. ARB(AF)/97/2 (Nov. 1, 1999) (Award), available at http://ita.law.uvic.ca/documents/Azinian-English.pdf. In one case, a dissenting opinion created a preliminary issue in the sequel of that case. In Waste Management v. Mexico I, the majority dismissed jurisdiction because of claimant’s failure to provide under Article 1121(2)(b) of the North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 605 (1993), a waiver of the right to initiate or continue, before any tribunal or court, dispute settlement proceedings with respect to the measures taken by the Respondent that are allegedly in breach of NAFTA. Waste Management v. Mexico I, ICSID Case No. ARB(AF)/98/2 (June 2, 2000) (Award), available at http://ita.law.uvic.ca/documents/WasteMgmt-Jurisdiction.pdf. The dissent disagreed and added that the majority decision had a “drastically preclusive effect,” id. ¶ 9, with the result that “the entire NAFTA claim has been undone,” id. ¶ 63. In Waste Management v. Mexico II, the respondent relied on the dissenting opinion in Waste Management I. Waste Management v. Mexico II, ICSID Case No. ARB(AF)/00/3 (June 26, 2002) (Decision on Mexico’s Preliminary Objection concerning Previous Proceedings), available at http://ita.law.uvic.ca/documents/WastMgmt2-Jurisdiction.pdf. The Tribunal, which was composed of different arbitrators, rejected the respondent’s argument, observing: [T]he dissenting arbitrator’s characterization of the effect of the decision cannot be decisive, even if the characterization was clear and unambiguous (which it is not). Only a majority of the Tribunal could determine the effect of its decision, and as noted there is no indication on the face of the award that the majority expressed any view on the matter.

Id. ¶ 23.

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

reason for such a lack of reference may be that tribunals know that dissents in investment arbitrations almost always emanate from the arbitrator appointed by the party that lost the case in whole or in part. In other words, regrettably, dissenting opinions by party-appointed arbitrators in investment arbitrations have become suspicious. Additional factors that could explain why other tribunals have not cited dissenting opinions merit further research.23 Some authors nonetheless believe that “dissenting (and concurring) opinions have a significant and beneficial role to play” and that “[t]reaty arbitrators should refrain from elevating collegiality over the expression of individual judgment on a significant point of investment international law.”24 By contrast, the tribunal in Rompetrol Group N.V. v Romania specifically refused to opine on the legal authority of dissenting opinions, declining to follow Professor Weil’s approach in Tokios Tokelés v Ukraine.25 In this connection, if one studies the thirty-four dissenting opinions, one wonders why a number of them were issued at all. If the test is that “[a]n investment treaty arbitrator should dissent where he or she discerns a principled basis to do so,”26 few of the thirty-four dissenting opinions seem warranted. Another argument is that dissenting opinions enhance transparency by allowing the parties to see which of the arbitrators favored or disfavored particular positions and that this would, in turn, improve accountability. It depends on one’s views of the judicial and arbitral process whether one would like to equate it to a political or a collegial process. Such a comparison will likely never be completely valid, as the principle of the secrecy of deliberations is universally accepted. Nonetheless, those who perceive a higher degree of transparency and accountability for arbitrators in investment arbitrations will find little or no support in dissenting opinions rendered by party-appointed arbitrators in the present situation.

23 24

25

26

It may be recalled that this contribution does not deal with awards and decisions of the Iran-US Claims Tribunal due to its particular circumstances. See supra note 11. Laurence Shore & Kenneth Juan Figueros, Dissents, Concurrences and a Necessary Divide Between Investment and Commercial Arbitration, 3 Global Arb. Rev. 18, 20 (2008). It is unclear on what basis the authors choose the dissenting opinions they state are exceptions to dissents issued by “a crude contrarian or a party’s puppet” given that many of the opinions so cited were issued by party-appointed arbitrators in favor of the party that appointed them. Id. at 19. The Rompetrol Group N.V. v Romania, ICSID Case No. ARB/06/3, ¶ 85 (Apr. 18, 2008) (Decision on Respondent’s Preliminary Objections on Jurisdiction and Admissibility) (“The Tribunal (which is not, of course, bound by the decisions of other ICSID tribunals) can leave aside the question what authority should be attached to a dissenting opinion in contrast to the Award itself, since (as the Claimant argued) the view expressed by Prof. Weil has not been widely approved in the academic and professional literature, or generally adopted by subsequent tribunals. The Tribunal would in any case have great difficulty in an approach that was tantamount to setting aside the clear language agreed upon by the treaty Parties in favour of a wide-ranging policy discussion.”), available at http://ita. law.uvic.ca/documents/RomPetrol.pdf. Shore, supra note 24, at n.22.

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III. Analysis of the Disadvantages of Dissenting Opinions by Party-Appointed Arbitrators

828

Doubts about dissenting opinions by party-appointed arbitrators arise not only in relation to the neutrality of the arbitrator and the development of investment law; dissenting opinions may also weaken the authority of the award. In 1899, Descamps described the situation as “the appearance of there being two judgments.”27 Dissents may impair enforcement and incentivize a dissatisfied party to move to annul the award. In the view of some, this argument “underestimates the ability of dissenting opinions, merely by expressing alternative views, to reduce potential challenges to awards”; they reason that “[i]f parties believe their views have been considered and rejected for the best possible reasons, they may be less likely to challenge awards.”28 Those views are not supported by any case. Regrettable though it may be, the contrary is true. A case in point is Klöckner v. Cameroon, an early ICSID case. Cameroon prevailed in the first arbitration, but there was a detailed dissenting opinion by the arbitrator appointed by Klöckner. Klöckner sought annulment of the award, mainly on basis of the reasons set forth in the dissenting opinion. In a “first generation” annulment decision, the ad hoc committee annulled the award, relying in large part on the dissenting opinion.29 Klöckner resubmitted the case but lost again. Cameroon’s award in the second arbitration, however, was reportedly less favorable to it.30 A dissent should not be a platform for preparing for annulment. If there is something wrong with either the award or the procedure leading to it, the award itself and the record of the arbitration should suffice for applying for annulment. Klöckner shows, in the extreme, why that should be so: the dissenting arbitrator, who had been appointed by Klöckner in the first arbitration, became Klöckner’s counsel in the second arbitration.31 Another example is the case of CME v. The Czech Republic.32 The majority award was in favor of CME, and the arbitrator appointed by the Czech Republic dissented.33 Not only did he dissent on points of fact and law but also on the conduct of the ar27 28 29

30 31 32 33

Proceedings of the Hague Conferences, supra note 8, at 617. Mosk & Ginsburg, supra note 10, at 7. Klöckner v. Cameroon, ICSID Case No. ARB/81/2 (Oct. 21, 1983) (Decision on the Application for Annulment Submitted by Klöckner), available at http://icsid.worldbank.org/ICSID/ FrontSer vlet?requestType=CasesRH&actionVal=showDoc&docId=D C665_ En&caseId=C127. The award is not publicly available. A deontological conduct that reportedly was not disapproved by the Bâtonnier of the Strasbourg Bar Association, to which Association the arbitrator in question belonged. CME v. The Czech Republic, UNCITRAL Arbitration (Sept. 13, 2001) (Partial Award), available at http://ita.law.uvic.ca/documents/CME-2001PartialAward.pdf. CME v. The Czech Republic, UNCITRAL Arbitration (Sept. 13, 2001) (Partial Award) (Jaroslav Hándl, dissenting), available at http://ita.law.uvic.ca/documents/CME-2001Dissent.pdf. Notably, the Czech Republic appointed a different arbitrator in the parallel case

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

bitration and the deliberations themselves. The result was an almost unprecedented parade of arbitrators as witnesses before the Svea Court of Appeal (Sweden being the place of the arbitration), testifying about what happened during the deliberations.34 Because of their experience, a dissent by a judge or a presiding arbitrator normally does not infringe the principle that deliberations must remain confidential. But the instrument of a dissent in the hands of a party-appointed arbitrator may be another matter, as CME illustrates.35 The risk of violating the secrecy of deliberations—indeed, the very legitimacy of the process of arbitral decision-making—cannot be ameliorated by a “vigorous tradition of well-reasoned dissent.”36 That tradition is limited to judges and experienced arbitrators, mainly from Anglo-American jurisdictions. But these individuals do not constitute the majority of investment arbitrators.37 One of the major problems with dissents by party-appointed arbitrators is that they may inhibit the deliberative process. A party-appointed arbitrator who believes that he or she should support (or even improve) the case advanced by the party that appointed him or her is not likely to engage in meaningful dialogue about the case with his or her colleagues. The party-appointed arbitrator’s colleagues, in turn, will

34

35

36 37

Ronal S. Lauder v Czech Republic, which favored the Czech Republic. That award was unanimous. See Czech Republic v. CME Czech Republic BV, Case No T 8735-01, 87-90 (May 15, 2003), 42 ILM 919 (Svea Court of Appeals), available at http://ita.law.uvic.ca/documents/CME2003-SveaCourtofAppeal_000.pdf. The annulment application was rejected. Some presiding arbitrators, however, seem to have difficulty with the principle. See, e.g., Decision of Appointing Authority to the Iran-U.S. Claims Tribunal (May 7, 2001) (deciding on the challenge brought by the United States against Judge Bengt Broms, Chairman of Chamber One at the Iran-US Claims Tribunal, based on revelations by him of parts of the deliberations in his separate concurring and dissenting opinion); 16-5 Mealey’s Int’l Arb. Rep. 2 (2001) (“He has been unable to resist the temptation to continue arguing with his colleagues …” ; “Revelations of such informal discussion and of suggestions made, could be very damaging and seriously threaten the whole deliberation process …” ; “A judge may be strictly and correctly impartial and independent though massively indiscreet and forgetful of the rules.” Sir Robert did not accept the challenge but admonished Judge Broms in no uncertain terms: “…  after his ill-judged breaches of the secrecy of the deliberations … This was a most serious error … It seems right to make it clear to Judge Broms that he should now resolve on no account to fall into this error again … .”); Redfern, supra note 2, at 234-36. Presiding arbitrators’ separate opinions can also be confusing. See, e.g., Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 I.C.J. 53 (Nov. 12), available at http://www.icj-cij.org/docket/files/82/6863. pdf; see also Stephen Schwebel, The Majority Vote of an International Arbitral Tribunal, 2 Am. Rev. Int’l Arb. 402 (1991). Mosk & Ginsburg, supra note 10, at 8. Susan Franck notes that out of 145 investment treaty arbitrators, the larger number came from the Civil Law tradition: 31.1 of arbitrators were nationals of the United States of America, United Kingdom and Australia, whereas 34.3 were nationals of Mexico, France, Germany, Sweden, Italy, Switzerland, Ecuador and Spain. Canadian nationals comprised 5.5 of the total number of arbitrators. See Susan Franck, supra note 12, at 77-78.

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soon discover that there is a quasi-advocate among the members of the tribunal.38 The result may be either that the presiding arbitrator and the other party-appointed arbitrator will no longer take the advocate-arbitrator seriously or that the other party-appointed arbitrator will do the same relative to his or her co-arbitrators. In both cases, the deliberative process breaks down. Moreover, arbitrators cannot freely exchange views with the prospect that a dissenting opinion inspired by party-partisanship may be forthcoming. Yves Derains wrote two instructive articles about the distinction between the harmonious deliberation and the pathological deliberation, in which he described certain pathological deliberations as “le terrorisme arbitral.”39 There is a third type of deliberative process that may be conducive to dissenting opinions. A number of presiding arbitrators (myself included) attempt to convene with their colleagues after the hearing every day for some 20 to 30 minutes, usually addressing one question only: “What did we learn today?” While some initially react “Nothing!”, the ensuing exchange of views assists in seeing where the arbitrators are in their thinking about the case, what needs further study and reflection, and what questions they may wish to explore with the parties. Some presiding arbitrators do not follow this kind of interactive deliberative process. They deliberate by asking each party-appointed arbitrator to write a note on the case and, having received notes from both arbitrators, the presiding arbitrator writes back that he or she prefers the views expressed in one of the notes. There is little or no exchange of views in person. It is therefore unsurprising that the arbitrator whose note is not chosen feels left out and later converts that note into a dissent. The practice of dissents in investment arbitration may even have reached the point where a party-appointed arbitrator is now expected to dissent if the party that appointed him or her has lost the case entirely or in part. If there is no dissent, commentators emphasize that the award is unanimous, in which case some even express surprise.40 Pressure for a “mandatory dissent” also seems to be emerging. In my view, this is undesirable. The principle should remain that an award should be presumptively unanimous, which should be unremarkable, and the exception should be a dissent, which should be issued in extreme cases only.41 Surprise and comment should 38 39

40

41

See CME v. Czech Republic, UNCITRAL Arbitration (Sept. 13, 2001), at 88. Yves Derains, La pratique du délibéré arbitral, in Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in Honour of Rober Briner 221, 224 (2005); Yves Derains, The Deliberations of the Arbitral Tribunal—“Retour au délibéré arbitral,” in The Resolution of the Dispute—from the Hearing to the Award: ASA Special Series No. 29, 16 (Markus Wirth ed., 2007). Some commentators even suggest that arbitrators should put their conceptions of intellectual purity over and above the parties’ interest in the dispute at hand by issuing a dissenting opinion even when there is no need. In the classic scenario, when a point of law arises in a case and one of the three arbitrators had been a member of a prior tribunal that ruled on a similar point of law, some commentators maintain, the common arbitrator must dissent, whether or not it serves the interests of the parties before the subsequent tribunal. Although dissenting opinions have been rendered in more than 22 of decisions, the number has been increasing. As the Annex shows, fourteen dissenting opinions were

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

be reserved for those cases where serious procedural misconduct or a violation of fundamental principles occurs; for example, where an arbitrator commits fraud. Given the foregoing, one may wonder what would justify a dissenting opinion in an investment arbitration. There is a major difference between judicial proceedings and investment arbitration. In judicial proceedings, a judge, who is not appointed by a party, may dissent for reasons of legal principle. Such dissent may promote good law in the future. In contrast, a party-appointed arbitrator does not have the expectation that his or her dissent will contribute to the development of investment law because, as noted above, those dissents are virtually never relied upon in subsequent investment cases. Moreover, as the Annex shows, few dissents involve matters of legal principle. It is fair to say that dissenting opinions have no future in investment arbitration. It therefore seems that dissenting opinions barely serve a legitimate purpose in a system with unilateral appointments. Why, then, should there be dissenting opinions in international arbitration? At an ABA Conference on October 5, 2007, in London, I gave the following list of possible motives for dissents: – The arbitrator genuinely believes that the majority is fundamentally wrong on an issue of law or fact. That, however, does not explain why nearly 100 percent of dissenting opinions are drafted by arbitrators appointed by the losing party. Why is there not a percentage of dissenting opinions drafted by arbitrators appointed by the winning party? – The arbitrator has ventured a different opinion in public (e.g., in scholarship, at a conference, or in a post on the Internet). – The arbitrator has advocated a different opinion as counsel in a prior case. – The arbitrator is counsel in a pending case where the majority opinion would be unfavorable to his or her client. – The arbitrator wants to show his or her appointing party that such party was right to appoint him or her and that counsel should do so again in the future. – The arbitrator wants to help his or her appointing party to frustrate enforcement of the award or to provide ammunition that might help get the award set aside. – The arbitrator suffers from intellectual exhibitionism. – Something went fundamentally wrong in the arbitral process, for example, there was a very serious violation of due process. – The arbitrator has been threatened that, absent a dissent, he or she will be in physical danger upon returning to his or her state of nationality or residence. That scenario indeed materialized in at least one case. I concluded at this conference that only the last two reasons should justify publishing a dissent in an investment arbitration. The research carried out for this contribution does not change my view; to the contrary, it vindicates it.

rendered in the twenty-one year period from 1983 to 2004, whereas twenty dissenting opinions were rendered in the three-year period between 2005 and 2008.

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IV Making and Applying Investment and Trade Law

IV. Possible Solutions 832

Alan Redfern has categorized dissenting opinions as (1) “good” if they are short, polite, and restrained; (2) “bad” if they argue that the majority is fundamentally misguided or ignorant; and (3) “ugly” if they attack the conduct of the arbitration, and he apparently suggests that only “good” dissents should be issued.42 Laurent Lévy proposed a code of ethics for dissenting arbitrators.43 Manuel Arroyo recently came forward with more than twenty options for dealing with dissenting opinions.44 The question that arises relative to each of these solutions is the same: what is the sanction if an arbitrator issues a “bad” or “ugly” dissent, or violates the putative code of conduct, or bypasses the relevant Arroyo option? Apart from perhaps affecting the dissenting arbitrator’s reputation, could the violation also jeopardize the validity of the award? The International Court of Arbitration (ICC) seems to be reasonably wellequipped to deal with dissents. A working party has issued a detailed report to guide the practice.45 Moreover, the ICC has at its disposal several mechanisms by which to deal with dissents. It can, for example, (1) filter out inappropriate dissenting opinions at the stage of scrutiny of the draft award; (2) use the more drastic measure of removing an arbitrator (even at a late stage in the proceedings); or (3) refuse to communicate a dissenting opinion to the parties. Furthermore, the arbitral tribunal’s chairperson has the power to decide the case alone if no majority opinion emerges.46 To a certain extent, that power deters arbitrators who consider dissenting and encourages them to cooperate more actively and in good faith with the chairperson. The ICC’s experience is a fairly reliable indicium of the nature of dissents in commercial arbitrations. Alan Redfern reported that, in 2001, there were twenty-four dissents and that, in the twenty-two cases in which identifying the dissenting arbitrator was possible, the dissent favored the party that had appointed him or her.47 The Secretariat of the ICC kindly provided me with statistics for the years 2004 through 2008. They show that, in general, the use of dissents by party-appointed arbitrators is on the decline in ICC arbitrations: 8.6 percent in 2004; 5.8 percent in 2005; 5.1 percent in 2006; 7.7 percent in 2007; and 5.6 percent in 2008.48 In nearly every case, the 42 43 44 45 46

47 48

Redfern, supra note 2, at 226-30. Laurent Lévy, Dissenting Opinions in International Arbitration in Switzerland, 5 Arb. Int’l 34, 41 (1989). Arroyo, supra note 1. ICC Commission Working Party, Final Report on Dissenting and Separate Opinions, 2 ICC Ct. Bull. 32 (1990) (M. Hunter, Chairman). “When the Arbitral Tribunal is composed of more than one arbitrator, an Award is given by a majority decision. If there be no majority, the Award shall be made by the chairman of the Arbitral Tribunal alone.” Int’l Chamber Comm., ICC Rules of Arbitration art. 25(1) (1998) Redfern, supra note 2, at 234. The total percentages of dissents (including Chairpersons, unidentified dissenters, and dissenters not clearly in favor of either party) were 10.4 in 2004; 8.3 in 2005; 7.8 in 2006; 9.1 in 2007; and 7.6 in 2008.

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

losing party’s chosen arbitrator rendered the dissent. There are two exceptions: in one case in 2007 and in another in 2008, the dissenting arbitrator issued a dissent adverse to the party that appointed him or her. It therefore seems reasonable to conclude that ICC arbitration is less “polluted” by dissenting opinions by party-appointed arbitrators than investment arbitration where, as mentioned, party-appointed arbitrators dissent in some 22 percent of the reported decisions. The London Court of International Arbitration’s (LCIA) rules contain a provision on the chairperson similar to that in the ICC Rules.49 Apart from that provision, the LCIA’s weaponry against unhelpful dissenting opinions seems to be limited. Dissents by party-appointed arbitrators recur regularly in ICSID arbitrations, partially because the ICSID Convention expressly allows them. Moreover, the Convention requires a majority voting, without giving the presiding arbitrator a casting vote. Therefore, there appears to be no mechanism to control dissents. In one instance, the award stated that “the Tribunal unanimously decides,” without ever mentioning the dissenting opinion attached to the award; the dissenter signed the award on January 11, 2007, and the dissenting opinion on January 30, 2007.50 UNCITRAL arbitration is not helpful in this respect either. As the Iran-US Claims Tribunal’s experience has shown, one of the main defects in the current version of the UNCITRAL Arbitration Rules is that it requires majority voting, without giving the presiding arbitrator a casting vote.51 One of its drafters of the Rules explained: “The arbitrators are therefore forced to continue their deliberations until a majority, and probably a compromise solution, has been reached.”52 That may be true in some cases, but at the Iran-US Claims Tribunal the provision led to rather curious “concurring” opinions. Consider two examples: (1) “I concur in the Tribunal’s Partial Award. I do so in order to form a majority so that the award can be rendered.”53 (2) “Unfortunately, however, the damages awarded are only about half of what the governing law requires. Why then do I concur in this inadequate Award, rather than dissenting from it? … [S]omething is better than nothing.”54 It would have been preferable, in my view, if these arbitrators had simply agreed and not issued a “concurring” opinion signaling disagreement. The opinions raise doubts as to whether majority awards actually existed. 49

50

51 52 53 54

“Where there are three arbitrators and the Arbitral Tribunal fails to agree on any issue, the arbitrators shall decide that issue by a majority. Failing a majority decision on any issue, the chairman of the Arbitral Tribunal shall decide that issue.” London Ct. Int’l Arb., LCIA Rules art. 26.3 (1998) Siemens v. Argentina, ICSID Case No. ARB/02/8, 128 (Feb. 6, 2007) (Award), available at http://ita.law.uvic.ca/documents/Siemens-Argentina-Award.pdf; Separate Opinion from Professor Domingo Bello Janiero, ICSID Case No. ARB/02/8 (Feb. 6, 2007), available at http://ita.law.uvic.ca/documents/Siemens-Argentina-Opinion.pdf. UNCITRAL, UNCITRAL Arb. Rules art. 31(1) (1976). Pieter Sanders, Commentary on UNCITRAL Arbitration Rules, II Y.B. Comm. Arb. 172, 208 (1977). Ultrasystems Inc. v. Iran, 2 Iran-U.S. Cl. Trib. Rep. 100 (1975) (Richard Mosk). Economy Forms Corp. v. Iran, 3 Iran-U.S. Cl. Trib. Rep. 42 (1983) (Howard Holtzmann).

833

IV Making and Applying Investment and Trade Law

834

The root of the problem is the appointment method. Unilateral appointments may create arbitrators who may be dependent in some way on the parties that appointed them. In an insightful contribution on the subject, Jan Paulsson proposes replacing the method of party-appointed arbitrators with a list-procedure.55 That, however, is probably still a long way off. As Yves Derains so aptly observes: Yet, it is also a fact that only in exceptional cases do the parties waive the right to nominate what they frequently call improperly “their” arbitrators, with the hope that he or she will have, at least, a sympathy for their case. There is an obvious tension resulting from the law of international arbitration and the expectation of many parties. Even if huge progress has been made in this regard during the ten last years, a lot of educational work remains to be done. Moreover, too many co-arbitrators still have difficulties in being fully impartial, as illustrated by the telling fact that the number of dissenting opinions not in favour of the party which nominated their author is statistically negligible. Nowadays, almost all coarbitrators declare that they are independent and impartial. It will take time until all behave accordingly.56

Until that moment has come, investment arbitration would function better and be more credible if party-appointed arbitrators observe the principle: nemine dissentiente. V. Post Scriptum: 2009 The Annex contains an overview of investment cases through 2008. The decisions reported until June 2009 do not differ from those surveyed in the Annex: all dissents issued by party-appointed arbitrators have favored the losing party, either in part or entirely. There are two dissenting opinions in the 2009 series that merit mention here in light of their expressed justification: one because it confirms this contribution’s analysis; the other because it shows that the problem is not as black-and-white as some may think. Both use a caption that is currently perceived (or rather misconceived) as politically correct arbitral language (“Separate Opinion” and “Individual Opinion”). If we call a spade a spade, both are really dissenting opinions. The first expresses the following justification for the dissent: Yet, I choose to articulate my partially differing views for two reasons. First, I believe that by doing so I may contribute usefully to the public debate over the issues addressed by this Tribunal in this case, a debate reflected in past awards of other tribunals and doubtless to be 55

56

Jan Paulsson, Moral Hazard and International Dispute Resolution, Investiture Lecture, University of Miami School of Law, April 29, 2010, available at http://www.arbitrationicca.org/index.html. Yves Derains, The Deliberations of the Arbitral Tribunal—“Retour au délibéré arbitral,” in The Resolution of the Dispute—from the Hearing to the Award: ASA Special Series No. 29, 17 (Markus Wirth ed., 2007) (internal footnotes omitted).

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

continued in ongoing and future arbitrations. Second, given what we have been informed may be the practical impact of the Award, it may not be amiss to anticipate the possibility of judicial proceedings in due course in which the correctness of the Award is put in issue, in which case I entertain the fond hope that the views I express may further illuminate certain issues for the benefit of any such forum.57

The first reason confuses the public academic debate about various issues in investment arbitration with the duty of an arbitral tribunal to render a decision in a dispute between the parties. The second reason raises questions regarding the difference between the role of counsel, who may be instructed to challenge the award in a judicial or other appropriate forum, and the role of an arbitrator who forms part of the tribunal that rendered the award. It is an almost universally accepted principle that an arbitrator cannot act as either party’s counsel in any future challenge to the tribunal’s award. Is the distinction blurred when an arbitrator expresses views in a dissent that “may further illuminate certain issues for the benefit of ” the court where the challenge may be heard and decided? The justification for the dissenting opinion given in the second case is of a different nature: Incidental divergences with fellow arbitrators do not, in my view, necessarily require written expression. I have never before felt impelled to dissent. In this instance, I unfortunately find myself in disagreement with respect to the decisive proposition advanced by my two esteemed colleagues, which as far as I can see could be obtained only by an impermissible rewriting of the Treaty we are bound to apply. Given my duty to exercise independent judgment, I find it impossible to subscribe to the decision, and necessary to record my reasons for differing.58

One can sympathize with this “first time” dissenter. I do not know the circumstances of this particular case, but I admit that it makes me think that one day there might be a first time for me too. Yet the reference in the above quote to the arbitrator’s “duty to exercise independent judgment” should not be misunderstood. Article 14(1) of the ICSID Convention provides: “Persons designated to serve on Panels shall be persons … who may be relied upon to exercise independent judgment.” Article 48(4) of the Convention authorizes dissenting opinions: “Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or 57

58

Renta 4 S.V.S.A. et al. v. Russian Federation, Arb. V 024/2007 ¶ 1 (Arb. Inst. Stockholm Chamber Comm. 2009) (Award on Preliminary Objections) (Separate Opinion of Charles N. Brower), available at http://ita.law.uvic.ca/documents/Renta.pdf (internal footnotes omitted). Hrvatska Elektroprivreda D.D v. Republic of Slovenia, ICSID Case No. ARB/OS/24, ¶ 1 (June 12, 2009) (Decision on the Treaty Interpretation Issue) (Individual Opinion of Jan Paulsson), available at http://ita.law.uvic.ca/documents/Hrvatska-Interpretation-Paulsson.pdf.

835

IV Making and Applying Investment and Trade Law

836

a statement of his dissent.” If the duty to exercise independent judgment would be legally relevant for the question whether or not to issue a dissenting opinion, it would mean that in each and every instance that an arbitrator has a view different from his or her colleagues, he or she would have the obligation to write a dissent. I do not believe that the author of the dissent in this case intended to say that, especially since he had never before dissented. But there seem to be certain parties and commentators who believe that an arbitrator should dissent as soon as he or she is not in agreement with the majority. This, however, raises the question where to draw the line in terms of whether to dissent. As long as that line is unclear, and given that dissents raise questions regarding arbitrator neutrality, it reinforces the aspired principle expressed above: nemine dissentiente.

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

Annex: Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitrations

(1)

(2) (3)

(4)

(5)

59 60 61

62 63

Notes: This survey excludes dissents by presiding arbitrators,59 arbitrators appointed by an Appointing Authority in lieu of a party,60 arbitrators appointed by consent of all parties,61 and members of ICSID Annulment Committees.62 The dissenting arbitrator is italicized. Concurring opinions are included to the extent that they can be considered a dissenting opinion. A dissenting opinion is one where there is disagreement on the dispositive outcome of the majority holding. Only disagreement on reasoning but concurrence with result is counted as a concurring opinion.63 The survey is based on decisions, awards and dissenting opinions in investment arbitrations as published on the freely publicly accessible websites of ITA and ICSID, unless indicated otherwise. Research was concluded on December 31, 2008.

E.g., Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18 (Apr. 29, 2004) (Decision on Jurisdiction). E.g., Mytilineos Holdings SA v Serbia, UNCITRAL Case (Sept. 8, 2006) (Partial Award on Jurisdiction), available at ita.law.uvic.ca/documents/MytilineosPartialAward.pdf. E.g., IBM v Ecuador, ICSID Case No. ARB/02/10 (Dec. 22, 2003) (Decision on Jurisdiction); Archer Daniels et al. v Mexico, ICSID Case No. ARB(AF)/04/5 (Nov. 21, 2007) (Award). In SOABI v Senegal, the original tribunal consisted of Aron Broches (P), Jean van Houtte and Kéba Mbaye; the latter two were appointed by mutual agreement of the parties. After the decision on jurisdiction on August 1, 1984, SOABI appointed Jan C. Schultsz to replace Jean van Houtte for health reasons. On February 25, 1988, the tribunal issued a majority decision with Kéba Mbaye dissenting. SOABI v Senegal, 2 ICSID Rep. 190 (Feb. 25, 1988) (Award). E.g., Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/7 (May 27, 2007) (Separate Opinion and A Statement of Dissent). E.g., Corn Prod. Int’l, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/04/1 (Jan. 15, 2008) (Decision on Responsibility).

837

Bernard Hanotiau (P) Gary Born (C) Toby Landau (R)

Karl-Heinz Böckstiegel (P) Johan Steyn (C) Franklin Berman (R)

Biwater v Tanzania Award -Jul-

RosInvestCo v Russia Award on Jurisdiction Oct-

Declines jurisdiction on the basis of Article  of the UKSoviet BIT. Declines jurisdiction on the basis of Article () read with another BIT. Upholds jurisdiction on the basis of Article () read with another BIT.

Holds that the Respondent had breached its international obligations but dismisses the Claimant’s claim for damages for lack of causation.

Decides that it does not have jurisdiction ratione temporis regarding disputes that had arisen prior to  and that the facts are such that the dispute arose prior to .

Francisco Orrego Vicuña (P) Otto L.O. deWitt Wijnen (C) Dominique Grisay (R)

African Holding v Congo Award on the Lack of Competence and Admissibility -Jul-

Declares: “I would not want our common conclusion that Article  does not confer jurisdiction in this case to be taken in any way as an expression of opinion on how that article or other similar treaty clauses relates [sic] to other claims that might be brought forward in other cases based on an allegation of expropriation.” (¶ )

Disagrees, inter alia, because the majority analysis confuses issues of causation and quantification of damages, which “is ultimately not decisive to the specific outcome in the present case, but it could well be in future cases and I am therefore unable to join it.” (¶ )

Argues that the ratione temporis requirement was met by the facts of the case.

Tawil disagrees with (i) the majority finding that it has no jurisdiction to construe Peruvian law and to review the correctness of SUNAT’s decisions and assessments or of the Tax Court’s decisions; and (ii) with the majority ruling rejecting that Respondent’s Depreciation Assessment was wrongful. Nikken disagrees with the majority finding that Respondent’s conduct amounted to estoppel in respect of the merger.

Awards US$. million to Claimant on account of Respondent’s breach of a contractual tax stabilization clause through a Merger Revaluation Assessment.

Dissent

L. Yves Fortier (P) Guido Tawil (C) Pedro Nikken (R)

Duke v Peru Award -Aug-

Majority Contends that jurisdiction should have been retained. Argues that the majority erred in construing Article  of the ICSID Convention by implying a duty to look beyond the ownership of the Dutch company that directly owned TSA’s shares.

TSA Spectrum v Argentina Award -Dec-

838

Decides that it lacks jurisdiction to examine TSA’s claims. Accepts Respondent’s third objection to jurisdiction that TSA cannot be treated, for the purposes of Article () of the ICSID Convention, as a national of the Netherlands because of the absence of foreign control. Finds that, at the time of consent, TSA’s ultimate owner is an Argentine national.

Arbitrators

Hans Danelius (P) Grant Aldonas (C) Georges Abi-Saab (R)

Case

IV Making and Applying Investment and Trade Law

Michael Mustill (P) Daniel Price (C) Piero Bernardini (R)

Kenneth Keith (P) Ronald A. Cass (C) L. Yves Fortier (R)

David A.R. Williams (P) Michael Pryles (C) Francisco Orrego Vicuña (R)

Pierre Karrer (P) Robert Volterra (C) Emmanuel Gaillard (R)

Tokios Tokelés v Ukraine Award -Jul-

UPS v Canada Award on the Merits -May-

Siag v Egypt Decision on Jurisdiction -Apr-

Eastern Sugar v Czech Republic Partial Award -Mar-

Accepts jurisdiction. Awards Claimant €. million because Respondent’s Third Sugar Decree violated the Netherlands-Czech and Slovak BIT. Holds that the First and Second Sugar Decrees and related conduct did not violate the BIT.

Upholds jurisdiction over claims brought by both Claimants, ruling that Mr. Siag held Italian nationality at all relevant times, as was Ms. Vecchi. Rejects Respondent’s objections to jurisdiction that there did not exist an investment.

Dismisses the claim in its entirety on the merits.

Argues that the First and Second Sugar Decrees and related conduct of the Respondent violated Article . of the BIT.

Disagrees with respect to the majority finding regarding Mr. Siag’s nationality, arguing that he is an ineligible Claimant as he maintained Egyptian nationality at the relevant times and did not maintain Italian nationality.

Disagrees that Respondent has not violated its national treatment obligation under Article  of NAFTA.

Contends that Respondent breached fair and equitable treatment obligations in Article  of the BIT. Agrees on the applicable standard, but disagrees on the assessment of the evidentiary record (¶ ).

Argues that there was an investment under the BIT, whether or not there was a breach of Respondent’s laws, which breach in any event is not established at the preliminary stage. Contends, moreover, that there was no violation of the Anti-Dummy Law. Further asserts that good faith also applies to Respondent’s conduct.

Accepts Respondent’s objection to jurisdiction finding that “Fraport knowingly and intentionally circumvented the [Philippines Anti-Dummy Law] by means of secret agreements. As a consequence, it cannot claim to have made an investment ‘in accordance with law’ [as required by Arts. () and () of the Germany-Philippines BIT].” (¶ )

L. Yves Fortier (P) Bernardo Cremades (C) W. Michael Reisman (R)

Fraport v Philippines Award -Aug-

Dismisses Respondent’s further objection to jurisdiction. Dismisses Claimant’s claims under Articles ,  and  of the Lithuania-Ukraine BIT.

Opines that, although the dispute related to Resolution  of  is outside jurisdiction ratione temporis, other parts of the dispute arose within jurisdiction ratione temporis.

Declines jurisdiction ratione temporis and dismisses claims because the real cause of the dispute arose out of Resolution  of , beyond the critical date.

Claus von Wobeser (P) Susana Czar de Zalduendo (C) W. Michael Reisman (R)

Vieira v Chile Award -Aug-

Disagrees with finding regarding post-award interest and argues that it should have been awarded to Claimant.

Awards Claimant US$. million on account of Respondent’s breaches of obligations related to fair and equitable treatment and observance of undertakings. Awards compound interest only up to the date of the Award because Claimant had not requested post-award interest in the petitum and memorials.

Francisco Orrego Vicuña (P) Marc Lalonde (C) Sandra Morelli Rico (R)

Sempra v Argentina Award -Sep-

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

839

Gilbert Guillaume (P) Bernardo Cremades (C) Ian Sinclair (R)

Albert Jan van den Berg (P) Thomas W. Walde (C) Agustín Portal Ariosa (R)

David Caron (P) Henri C. Alvarez (C) Jose Luis Alberro-Semerena (R)

Salini v Jordan Award -Jan-

Thunderbird v Mexico Arbitral Award -Jan-

Aguas del Tunari v Bolivia Decision on Respondent’s Objections to Jurisdiction -Oct-

Rejects Respondent’s two objections to jurisdiction relating to scope of consent to arbitration under the Bolivia-Netherlands BIT and relating to whether the Claimant, a Bolivian company, was controlled directly or indirectly by Dutch nationals as required by the BIT. Denied Respondent’s requests for production of evidence relating to ownership and control over Claimant.

Dismisses claims in their entirety, finding that Respondent had not breached Articles ,  or  of NAFTA. Allocates costs % to Claimant and % to Respondent.

Dismisses Claimant’s claims for lack of an agreement binding on it and Respondent. Allocates costs equally between the parties.

Holds that claims were outside of jurisdiction, except expropriation claims under Article VIII of the Canada-Ecuador BIT. Dismisses claims based on Article VIII, finding that there was no expropriation with respect to the right to VAT refunds under Ecuador law.

James Crawford (P) Horacio Grigera Naón (C) J. Christopher Thomas (R)

EnCana v Ecuador Award -Feb-

Contends that the dispute is outside the scope of consent under the BIT and that the Claimant was not controlled by Dutch nationals. Disagrees also on the majority’s denial of production of evidence.

Contends that Articles  and  of NAFTA were breached and would have awarded as damages US$, versus US$  million claimed (¶ ). Disagrees also on the allocation of costs.

Disagrees on the cost decision only. Argues that the costs and expenses of the Tribunal during the merits phase should be in the proportion of one-third to the Respondent and two-thirds to the Claimant, with each Party bearing its own costs.

Argues that conduct attributable to Respondent had expropriated Claimant’s returns on its investment in breach of Article VIII of the BIT.

Dismisses claims for lack of jurisdiction under the Belgium/ Argues that Respondent’s preliminary objections should Luxembourg-Russia BIT. have been dismissed and that the parties should have been ordered to proceed to a hearing of the merits of the claim.

Bengt Sjövall (P) Todd Weiler (C) Sergei Lebedev (R)

Argues that the Tribunal should have retained an independent expert for the valuation of the damages to Claimant, as had been requested by Respondent. Also contends that costs of arbitration should have been allocated equally.

Berschader v Russia Award, -Apr-

Awards Claimant US$. million on account of Respondent’s breaches of obligations related to expropriation (Article () of the Argentina-Germany BIT), fair and equitable treatment and full protection and legal security (Articles () and () of the BIT) and arbitrary measures (Article () of the BIT). Allocates costs % to Respondent and % to Claimant.

Andrés Rigo Sureda (P) Charles N. Brower (C) Domingo Bello Janeiro (R)

840

Siemens v Argentina Award -Feb-

IV Making and Applying Investment and Trade Law

Declares to have jurisdiction. Finds expropriation under Article III of the Congo-US BIT. Awards Claimant as compensation US$ ,. [Award not published; information derived from Annulment Decision.]

Upholds jurisdiction over the claims under Article VIII() (umbrella clause) of the Philippines-Swiss BIT. Dismisses the claim under Article VI (expropriation) of the BIT. Stays the arbitration, pending a decision on a contractual matter by the forum as contractually agreed. Awards Claimant US$. million. Rules that “just” compensation under the BIT and international law is fair market value and applies the DFC method.

Andreas Bucher (P) Marc Lalonde (C) Yawovi Agboyibo (R)

Ahmed S. El-Kosheri (P) Antonio Crivellaro (C) James Crawford (R)

Wolfgang Kuhn (P) Stephen Schwebel (C) Ian Brownlie (R)

Konstantinos D. Kerameus (P) David A. Gantz (C) Jorge Covarrubias Bravo (R)

J. Martin Hunter (P) Bryan P. Schwartz (C) Edward C. Chiasson (R)

Mitchell v Congo Award -Feb- Annulled by Ad Hoc Committee on  November  on the grounds of lack of jurisdiction

SGS v Philippines Decision of the Tribunal on Objections to Jurisdiction -Jan-

CME v Czech Republic Final Award -Mar- (See also Partial Award of  September  below)

Feldman v Mexico Award -Dec-

SD Myers v Canada Final Award -Dec- (See also Partial Award of -Nov- below)

Awards Claimant CAN$, as costs of arbitration with interest.

Dismisses claim based on Article  (expropriation) of NAFTA. Finds that Respondent had breached Article  (national treatment) of NAFTA. Awards Claimant . million Mexican Pesos plus interest.

Holds that Respondent had breached its obligations under Articles ., . and  of the Netherlands-Poland BIT.

L. Yves Fortier (P) Stephen Schwebel (C) Jerzy Rajski (R)

Eureko v Poland Partial Award -Aug-

Contends that Claimant should have been awarded CAN$. million as costs of arbitration with interest.

Argues that there was no discrimination or other violation of Article  of NAFTA.

Contends that the standard of “just” compensation is not fair market value but should be subject to legitimate expectations and actual conditions. Argues that in the present case the business plan was best indicator of genuine value, computing it to be US$. million.

Disagrees that the arbitration proceedings should be stayed pending a decision on the contractual dispute by the contractually agreed forum.

Dissenting Opinion is not published.

Argues that the dispute is entirely of a contractual nature and that there is no ground which could entitle Claimant to protection under the BIT, and hence the Respondent could not have breached any of Articles ., . or  of the BIT.

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

841

Holds that Respondent had breached its obligations under Articles  (national treatment) and  (minimum standard of treatment) of NAFTA. Dismisses claims relating to Articles  (performance requirements) and  (expropriation) of NAFTA. Declares that Respondent is to pay Claimant compensation to be determined in the second stage of the proceedings.

J. Martin Hunter (P) Bryan P. Schwartz (C) Edward C Chiasson (R)

Bernardo Cremades (P) Keith Highet (C) Eduardo Siqueiros T. (R)

SD Myers v Canada Partial Award -Nov- (See also Final Award of -Dec- above)

Waste Management v Mexico I Arbitral Award -Jun-

Dismisses jurisdiction because of Claimant’s failure to provide under Article ()(b) of NAFTA a waiver of the right to initiate or continue before any tribunal or court, dispute settlement proceedings with respect to the measures taken by the Respondent that are allegedly in breach of NAFTA.

Awards Claimant US$. million on the basis that Respondent had breached Articles  and  of the EgyptUK-BIT. Awards post-award interest at % compounded quarterly until the date of payment.

Monroe Leigh (P) Ibrahim Fadlallah (C) Don Wallace Jr. (R)

Wena v Egypt Award -Dec-

Disagrees with the majority on the scope of Article  and as to the interpretation of the waiver. Also disagrees that waiver goes to jurisdiction rather than to admissibility of the claim. Opines that the majority decision had a “drastically preclusive effect” (¶ ) with the result that “the entire NAFTA claim has been undone” (¶ ). Note: See Waste Management v Mexico II, Decision of  June , discussed in n.  supra.

Argues that Respondent had also breached Article  of NAFTA.

The full text of the separate statement reads: “Professor Wallace concurs in the Tribunal’s entire award and is persuaded that compound interest should be awarded. However, he is not persuaded that compounding should be quarterly.”

Contends that there was no jurisdiction over the dispute. Argues that the Claimant should not be protected by the BIT because the investment was made previously by a German company. Disagrees on the appreciation of the factual record and contends that there was no violation of any provision of the BIT.

Holds that that Respondent breached Articles ,  and  of the Czech and Slovak-Netherlands BIT. Declares that the Respondent is obligated to remedy the injury payment of the fair market value of Claimant’s investment, to be determined in a second phase of the arbitration.

Wolfgang Kuhn (P) Stephen Schwebel (C) Jaroslav Handl (R)

CME v Czech Republic Partial Award -Sep- (See also Final Award of -Mar- above)

Argues that expenditures could amount to an investment but there was a lack of proof that the expenditures had been incurred by a Sri Lankan company in which Claimant had a share.

Declines jurisdiction on ratione materiae grounds. Finds that certain agreements did not create binding obligations upon the Respondent and that the characterization of certain expenses as pre-incorporation expenditures was insufficient proof that an “investment” existed.

Sompong Sucharitkul (P) David Suratgar (C) Andrew Rogers (R)

842

Mihaly v Sri Lanka Award -Mar-

IV Making and Applying Investment and Trade Law

Finds that Zaire (Congo) is liable for damages caused by looting to Claimant under the US-Zaire BIT. Awards Claimant US$ million as compensation.

Sompong Sucharitkul (P) Heribert Golsong (C) Kéba Mbaye (Appointing Authority)

Eduardo Jiménez de Aréchaga (P) Robert F. Pietrowski Jr. (C) Mohamed Anim El Mahdi (R)

Ahmed S. El-Kosheri (P) Berthold Goldman (C) Samuel K.B. Asante (R)

Eduardo Jimenez de Aréchaga (P) William D. Rogers (C) Dominique Schmidt (R)

AMT v Zaire Award -Feb-

SPP v Egypt -May-

AAPL v Sri Lanka Final Award -Jun-

Klockner v Cameroun I -Oct- Annulled by Ad Hoc Committee on  March  (relying on dissenting opinion)

Upholds jurisdiction finding that an ICC arbitration clause in a related agreement was not a bar to jurisdiction. Dismisses Claimant’s claim for the balance of the price of supplying a factory in its entirety on grounds of Claimant’s failure of contractual performance.

Awards Claimant US$, for Respondent’s violations of Articles  and  of the Sri Lanka-UK BIT.

Awards Claimant US$. million for Respondent’s breaches of the contract and applicable law.

Upholds jurisdiction in the case where the German Claimant channeled certain investments into Russia through an American company and that the Procurement Department of the President of the Russian Federation was an appropriate organ to represent the State as Respondent. Awards Claimant US$. million.

Staffan Magnusson (P) Jan Peter Wachler (C) Ivan Zykin (R)

Sedelmayer v Russia Award -Jul-

“The undersigned is under a duty to give a dissenting opinion. He feels that the Award relies on a mistaken assessment of the facts and documents submitted to the Arbitral Tribunal.” Disagrees with virtually every aspect of the majority. Published in  Arb. Int.  ()

Argues that the Respondent was not liable as none of the provisions of the BIT were breached.

Dissents on “the perception of the facts.” Contends that the Claimant was not an investor under the ICSID Convention. Asserts also that there was no violation of applicable law. Further argues that amount of compensation should be reduced.

Golsong argues that Claimant should have prevailed on its claim under Article IV() of the BIT concerning expropriation, which the majority had rejected. Mbaye contends that US$ million compensation exceeded the injuries sustained and would have awarded US$ million.

Disagrees that the Tribunal has jurisdiction because the Germany/Russia BIT does not cover investments channeled through an American entity and the Procurement Department of the President of the Russian Federation does not represent the Russian Federation. Because the Tribunal “lacks the competence to try the case” there was no need to deal with the further issues (p. ).

42 Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

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Chapter 43 China’s Practice in International Investment Law: From Participation to Leadership in the World Economy Guiguo Wang*

I had the privilege of studying for a J.S.D. degree at Yale under the supervision of Professor Michael Reisman. Professor Reisman is a great scholar of extreme modesty. He listens and responds to students’ needs promptly, and patiently explains his and others’ points of view. I was attracted by Professor Reisman to the Yale Law School twenty-seven years ago, and have benefited from his great scholarship ever since, especially his New Haven School understanding of law “as a process of decision that is both authoritative and controlling.”1 It is difficult to measure to what extent my view of the law has benefited from Professor Reisman’s scholarship. Yet I can safely say that his theory about, and approach to, the law have had the greatest influence on my scholarly thinking. This piece is a case in point. In fact, as with many of my earlier projects, I have again had the benefit of his advice in writing this article. This essay sets out to review the policies and laws adopted by China in the last three decades relating to foreign investment, in particular, the recent development of China’s policies regarding bilateral investment treaties (BITs) and free trade agreements (FTAs). China started its long march toward modernization in 1978 by encouraging the inflow of foreign capital and technology and reforming the domestic economy.2 Within the short span of thirty years, it has become the most active and

*

1 2

This is an expanded and revised version of my article of the same title, published at 34 Yale J. Int’l L. 575 (2009), which was first presented at a conference in Professor Reisman’s honor. See W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L.575, 576 (2007). After the death of Chairman Mao Zedong in 1976, Deng Xiaoping came to power. The Chinese Communist Party held a meeting at its 3rd Plenary Session of the 11th Central Committee at which declared an end to the notorious Cultural Revolution and abandoned the large-scale political change. It also announced that the country would embark on domestic economic reforms and open itself to the outside world. For more detailed discussion, see Guiguo Wang, Wang’s Business Law of China 5-11 (Kelleigh Poon ed., 4th ed. 2003).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 845-890.

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largest developing host country for foreign direct investment3—a result of its economic reforms and its opening up to the outside world. In this time period, China has entered into more than 120 BITs4 and several FTAs. In April 2008, China not only entered into an FTA with New Zealand, the first FTA concluded with a developed country,5 but it also started negotiations on a BIT with the United States—its most important trading partner.6 As China is now one of the fastest growing economies in the world,7 it has also re-negotiated its BITs with other countries, which dem-

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According to statistics issued by the Ministry of Commerce of the People’s Republic of China, China had taken in US747.1 billion in foreign investment by the end of November 2007. See China’s Foreign-Capital Utilization in 2007, http://www.fdi.com.cn/pub/ FDI_EN/ News/Focus/Subject/Utilization2007/default.html (last visited April 1, 2007) [hereinafter China’s Foreign-Capital Utilization]. According to the 2007 World Investment Report of UNCTAD, China ranked No.5 globally and No.1 among developing countries in direct foreign investment inflow. It continued to be regarded as the most attractive host country and first R&D choice worldwide. For details, see http://www.unctad. org/Templates/Page.asp?intItemID=1465. See U.N. Conference on Trade and Development [UNCTAD], Recent Developments in International Investment Agreements: 2007-June 2008, at 3, fig. 2, Doc. No. UNCTAD/ WEB/DIAE/IA/2008/1 (2008), available at http://www.unctad.org/en/docs/webdiaeia20081_en.pdf. China and New Zealand started by carrying out a feasibility study for concluding an FTA. The two countries signed the FTA on April 7, 2008. Free Trade Agreement, P.R.C.N.Z., art. 135, available at http://chinafta. govt.nz/1-The-agreement/2-Text-of-theagreement/0-downloads/NZ-ChinaFTA-Agreement-text.pdf [hereinafter China-New Zealand 2008 FTA]. By 2008, China was the fourth-largest trading partner of New Zealand, importing over 1.6 billion of New Zealand’s merchandise and over 1 billion of services per annum. It was also anticipated that China’s middle class which was estimated to be more than 100 million people would also increase importation by China of New Zealand’s agricultural products. For details, see http://www.mfat.govt.nz/Trade-andEconomic-Relations/Trade-Agreements/China/index.php. The United States announced that after seventeen months of preliminary negotiations with China, both countries had agreed to start negotiations for a BIT on June 20, 2008. The Bureau of Economic, Energy and Business Affairs of the Department of State announced that the negotiations would cover the following aspects: (1) non-discriminatory treatment; (2) fair and equitable treatment, including the right to due process; (3) compensation in the event of expropriation or nationalization; (4) free transfers of capital; (5) transparent regulation; and (6) submitting disputes to independent international arbitration. It also considered that the BIT would, if successfully negotiated and entered into, “require China to abide by clear, certain and agreed rules on investor protection and transparency of investment-related laws and regulations.” See http://www.state.gov/e/ eeb/rls/fs/2008/106132.htm. The average annual GDP growth rate of the Asia and Pacific region during the period of 1990 to 2006 was 5.7, the highest of all regions of the world. Within the Asia-Pacific region, China has been leading in economic development. Between 1990 to 2006, its average annual GDP growth rate was 10.2. See UNESCAP, Statistical Yearbook for Asia and the Pacific 2007, available at www.unescap.org/stat/data/syb2007/ESCAP-SYB2007.pdf.

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Guiguo Wang, China’s Practice in International Investment Law: From Participation to Leadership in the World Economy

onstrates the country’s willingness to accept the modern standards of treatment of foreign investments. Although there has not been any dispute to which the Chinese government has been a party, recent Chinese practice will have important consequences upon its laws and legal system. The recognition of investment interests of legal persons established by nationals of a BIT contracting party in a third country may serve as an example. In the past, China refused to protect such investments; yet the China-Argentina BIT (1992) and China-Brunei BIT (2000) offer protections to such investment.8 China is an important recipient of foreign direct investment (FDI); at the same time, its role as a capital-exporting country is also growing.9 Any policy stance taken by China through signing BITs or FTAs will have international implications. This article will review the policies and laws adopted by China in the last three decades, and the evolution of the Chinese legal system on foreign investment, especially the recent development of its BIT and FTA practice. I. Mechanisms for Protecting Foreign Investment For the purposes of attracting foreign investment, China adopted the Chinese-Foreign Joint Venture Law in 1979.10 Almost ten years later, the Chinese-Foreign Cooperative Venture Law11 was enacted, followed by the Wholly Foreign-Owned Enterprises Law.12

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Cf. Article 1(2) of the 1992 China-Argentina BIT, available at http://www.unctad.org/ sections/dite/iia/docs/ bits/argentina_china.pdf (“If natural or judicial persons of a Contracting Party have an interest in a juridical person which was established within the territory of a third State, and this juridical person invests in the Other Contracting Party, it shall be recognized as a juridical person of the former Contracting Party.”). For instance, in 2005, 1067 medium- and large-sized Chinese enterprises made investments overseas, with the agreed investment value of the Chinese parties amounting to US6.954bln. See http://english.mofcom.gov.cn/aarticle/statistic/foreigninvestment/ html. Law of the People’s Republic of China on Chinese-Foreign Equity Joint Ventures (promulgated by the Fifth National People’s Congress on July 1, 1979, amended by the Standing Committee of the 9th National People’s Congress on March 15, 2000), translated in Isinolaw (last visited Apr. 2, 2009) (P.R.C.). [hereinafter Chinese-Foreign Joint Venture Law]. Law of the People’s Republic of China on Chinese-Foreign Contractual Joint Ventures (promulgated by the Standing Committee of the 7th National People’s Congress on April 13, 1988, amended by the Standing Committee of the 9th National People’s Congress on October 31, 2000, translated by Isinolaw (last visited Apr. 2, 2009) (P.R.C.). Law on Wholly Foreign-Owned Enterprises (promulgated by the 6th National People’s Congress on April 12, 1986, amended by the Standing Committee of the 9th National People’s Congress on October 31, 2000), translated by Isinolaw (last visited Apr. 2, 2009) (P.R.C).

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These three laws have dictated the forms of foreign investment in China.13 In general, there is no upper limit on foreign equity holdings, while foreign investors’ ownership must not be less than 25 of the total investment.14 As to the sectors open for investment, there have always been restrictions.15 After China joined the WTO, some additional sectors of the economy became open to foreign investors.16 A very important issue in China’s effort to attract foreign investment has been its treatment of foreign investors, in particular, with respect to the issues of whether foreign investment might be expropriated, and, if so, whether compensation would be paid, and what the standard for such compensation would be, including the method of assessing foreign investment assets.17 These questions arose because the Chinese government had nationalized foreign and Chinese private enterprises after its establishment in 1949.18 Also since the People’s Republic had assumed the seat of China in

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According to the statistics issued by the Ministry of Commerce of the People’s Republic of China, by the end of 2005, more than 630,000 FDIs had been established. See http:// www.fdi.com.cn/pub/FDI_EN/ News/Focus/Subject/Utilization2007/default.html. All of these enterprises were established in accordance with the Chinese-Foreign Joint Venture Law, Chinese-Foreign Cooperative Venture Law and Wholly Foreign-owned Enterprises. In practice, many Chinese entities still prefer equity joint ventures when cooperating with foreign counterparts. Article 4 of the Chinese-Foreign Joint Venture Law provides: “The proportion of the foreign party’s contribution to the registered capital of an equity joint venture shall in general not be less than 25 percent.” The control is exercised by the Chinese government through the process of approval of the equity ventures. According to Article 3 of the Chinese-Foreign Joint Venture Law, the agreement, contract and articles of association of an equity joint venture signed by the Chinese and foreign parties must be submitted to the state department in charge “for examination and approval.” The Chinese government also publishes foreign investment guidelines stipulating the areas that are restricted from, and those are encouraged to attract, foreign investments. For details, see www.mofcom.gov.cn. For details, see Protocol on the Accession of the People’s Republic of China and Report of the Working Party on the Accession of the People’s Republic of China adopted at the Doha Ministerial Conference on November 10, 2001 (WT/ACC/CHN/49). For discussion on the matter, see Guiguo Wang, The Law of the WTO: China and the Future of Free Trade 51-55 (2005). These are still paramount issues for foreign investors although the form and scale of expropriation have changed over time. Open nationalization or expropriation is no longer the issue but regulatory taking has become a concern of the contemporary world. This is evidenced in the ICSID arbitration relating to Argentina, Mexico, etc. After the establishment of the People’s Republic in 1949, China expropriated all the private enterprises, a process essentially completed by 1957 when the country started the Anti-Rightists Movement. For discussion on China’s political and economic situation, in particular regarding expropriations, see George N. Ecklund, Protracted Expropriation of Private Business in Communist China, 36 Pac. Aff. 238-49 (1963).

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Guiguo Wang, China’s Practice in International Investment Law: From Participation to Leadership in the World Economy

the United Nations, it had always followed the policies of developing countries with respect to South-South and North-South issues.19 At first, the Chinese government tried to ease the concern of foreign investors over expropriation through domestic laws.20 For instance, Article 2 of the ChineseForeign Joint Venture Law provides: “The State shall not nationalize or requisition any joint ventures. Under special circumstances, in the interest of the public, the State may requisition a joint venture in accordance with legal procedures and appropriate compensation shall be made.”21 It should be pointed out, however, that when China started its policy on domestic reforms and opening to the outside world 30 years ago, concerns relating to expropriation of foreign investment were quite different from those arising in the twenty-first century.22 Even taking that into account, the 19

20

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At the Sixth Special Session of the UN General Assembly in 1974, Deng Xiaoping, then Vice Premier of the People’s Republic of China, expounded upon the theory of three worlds and stressed the need for establishing a new international economic order. Soon after assuming its seat in the UN, the People’s Republic joined the Group of 77 known as “the G77 plus China.” China shared the views of developing countries in and contributed to the adoption of the 1974 Charter of Economic Rights and Duties of States, the 1990 Declaration on International Economic Co-operation, in particular the Revitalization of Economic Growth and Development of the Developing Countries, etc. For more on China’s role regarding these issues, see http://www.showchina.org/ zgygjzzxl/ zgylhg/04/200701/t107115.htm. Some scholars argued that the concern about macro-political risks such as expropriation missed the zeitgeist of post-Mao China and that, as part of its commitment to reform, China had paid less attention to its theoretical right to seize foreign assets and the ensuing legal implications than to its ability to attract foreign investment. See David L. Weller, The Bureaucratic Heavy Hand in China: Legal Means for Foreign Investors to Challenge Agency Action, 98 Colum. L. Rev. 1238 (1998). At the same time, Article 5 of the Wholly Foreign-Owned Enterprises Law states that the State shall not nationalize or requisition any foreign-owned enterprises. Under special circumstances, however, where the public interest so requires, foreign-owned enterprises may be requisitioned through legal procedures and appropriate compensation shall be made, the same Article provides. Article 5 of the Regulations of the People’s Republic of China on Sino-foreign Cooperation in the Exploitation of Continental Petroleum Resources prescribes that the State shall not expropriate the investments and income of foreign enterprises that participate in the cooperative exploitation of continental petroleum resources and that under special circumstances, the State may, according to the needs of the public interest, expropriate a portion or all of the petroleum due to foreign enterprises in connection with their cooperative contracts. Currently, the international community pays more and more attention to creeping expropriation or indirect expropriation. As a result, changes in exchange rates, repatriation policies, adoption and amendment of laws relating to taxes, prices, labor, import and export, foreign control of certain types of companies, etc. may all lead to disputes involving creeping expropriation. A renegotiated contract may also result in suspension of indirect expropriation if the terms thereof become less favorable to the foreign investors in question. For discussions on the issues relating to China, see Pat K. Chew, Political Risks and U.S. Investment in China: Chimera of Protection and Predictability?, 34 Va. J. Int’l L. 615 (1994); and Timothy A. Steinert, Note, If the BIT Fits: The Proposed Bilateral Invest-

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Chinese law provisions could not ease the concern of foreign investors, as at that time the rest of the world and China were mutually unknown to each other. For instance, expropriation for public purposes had already been commonly accepted by Western countries when the Chinese-Foreign Joint Venture Law was adopted. Yet, Chinese scholars were still debating whether nationalization was an exercise of sovereignty and if yes, what should be the standard of compensation.23 Regarding the standard for compensation, China took the developing countries’ view, i.e., appropriate compensation, which begged more rather than resolved the questions.24 In addition to the issues relating to expropriation, there were other hurdles in Chinese law to be overcome for foreign investments, including Chinese law being the governing law in foreign investment contracts,25 although investment disputes among contracting parties may be resolved within or outside China.26 No right relating to investor-state arbitration was to be found in Chinese law.27 Naturally, what the Chinese government did was welcomed by foreign investors who at the same time expected China to adopt more measures geared toward pro-

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25 26

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ment Treaty between the United States and the People’s Republic of China, 2 J. Chinese L. 405 (1988). Even Chinese scholars have admitted that an indirect expropriation is not impossible in China. See Zeng Huaqun, WTO and the Development of Foreign Investment Law of China 290 (2006). See Wang Xuan, Permanent Sovereignty of States Toward Natural Resources, 1982 Chinese Y.B. Int’l L. 99; Mei Ruao, Legal Protection of International Investment, 1982 Chinese Y.B. Int’l L. 115; Ni Zhengyu, Theory and Practice of State Immunity, 1983 Chinese Y.B. Int’l L. 3; Chen Tiqiang, State Sovereign Immunity and International Law, 1983 Chinese Y.B. Int’l L. 31. It is interesting to note that in his separate opinion in CME Czech Republic B. V. v. Czech Republic, an UNCITRAL award issued in 2003, Professor Ian Brownlie suggested, relying on 1974 UN General Assembly Resolutions, appropriate compensation as the standard in assessing the Czech Republic’s liability. Article 2 of the Chinese-Foreign Joint Venture Law which stipulates that joint venture agreements, contracts and articles of association are subject to relevant Chinese laws. Article 15 of the Chinese-Foreign Joint Venture Law provides that parties to Chinese-foreign joint ventures may, by agreement, have their disputes resolved by a Chinese arbitration body or another arbitration body, which is interpreted to mean a foreign arbitration body, and where there is no agreement on arbitration, a disputing party may bring the case to a Chinese court. In practice, most Chinese-foreign joint venture contracts contain provisions for settling disputes by arbitration tribunals within China, in particular by the China International Economic and Trade Arbitration Commission. Having recognized the limits of traditional remedies available to foreign investors against host countries, such as local court proceedings and diplomatic protection, the World Bank started to create a special mechanism for resolving investor-state disputes in 1961. In 1965, the Executive Directors of the World Bank adopted the text of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States which entered into force in 1966 after the deposit of twenty ratifications. For more on the Convention, see P.F. Sutherland, The World Bank Convention on the Settlement of Investment Disputes, 28 Int’l & Comp. L.Q. 367 (1979).

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tecting their interests.28 For instance, the Joint Venture Law only mentioned compensation for nationalization but without specifying what were the related rights and interests of joint ventures. Also, it was not stated in detail either what forms of investment other than the joint ventures would be considered as FDI and would therefore be entitled to the same treatment in case of nationalization.29 Unless these questions were answered, the skeleton-type Chinese laws mentioned above may be of little use to foreign investors.30 The solution of the problem rested on the formation of international mechanisms for the protection of foreign direct investment in China. The first step that China took in creating international mechanisms to deal with foreign direct investment was the conclusion of bilateral investment treaties (BITs).31 The first group of BITs that China entered into was with Germany (1983),32 France (1984),33 and Norway (1984).34 All these BITs have a common feature of being brief in nature. For instance, the China-Norway BIT has only nine articles which outline the desire of both parties in promoting bilateral investment and a few concepts such as investment and investors. 28

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See Stanley Lubman, Looking for Law in China, 20 Colum. J. Asian L. 1 (2006); Jerome Alan Cohen & Stuart J. Valentine, Foreign Direct Investment in the People’s Republic of China: Progress, Problems and Proposals, 1 J. Chinese L. 161 (1987). There are differences under the Chinese Constitution with regard to protection against expropriation of foreign-owned properties as opposed to the expropriation of domesticowned private properties. See Yasheng Huang, One Country, Two Systems: Foreign-Invested Enterprises and Domestic Firms in China, 14 China Econ. Rev. 404 (2003). As a practice in the 1980s and 1990s, where a law was adopted by the National People’s Congress, implementation provisions would be enacted by the State Council; further detailed rules could also be promulgated by the ministries in charge under the State Council. Even so, Chinese laws adopted in those years were quite brief compared with those in the United States and other developed countries. For a detailed account on China’s law making, see Wang, supra note 2. At that time, lawyers and scholars from the United States and elsewhere often advised the Chinese government on foreign investment issues, although such advice was given unofficially. The Chinese government also sent their officials as visiting scholars to foreign countries to study. At least three heads of the Law and Treaties Department of the Ministry of Foreign Trade and Economic Cooperation, predecessor of the Ministry of Commerce of China, studied in the United States. Such exchanges helped China understand the need of foreign investors greatly. Therefore to use BITs as means for promoting foreign investment was not unthinkable for the Chinese government. Agreement between the People’s Republic of China and the Federal Republic of Germany on the Encouragement and Reciprocal Protection of Investments (1983). Agreement between the Government of the People’s Republic of China and the Government of the French Republic on the Reciprocal Encouragement and Protection of Investments (1984), available at http://www.unctad.org/sections/dite/iia/docs/bits/ france_china_fr.pdf. Agreement between the Government of the People’s Republic of China and the Government of the Kingdom of Norway on the Mutual Protection of Investments (1984), available at http://www.unctad.org/sections/dite/ iia/docs/bits/china_norway.pdf.

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It emphasizes the right of subrogation in case of expropriation and repatriation of investment. Most-favored-nation (MFN) treatment is provided for, but not national treatment. Further improvements were made after China had gained some experience with foreign investment treaties and had become more familiar with international practice. An example is the China-UK BIT entered into in 1986,35 in which the Hull rule for compensation for expropriation was accepted. The contents thereof were also determined in more detail. With the help of the above laws and BITs, China achieved good results in attracting foreign investment in the 1980s.36 In 1992, the late Chinese leader Deng Xiaoping took a tour to the southern part of China to advocate for further reform.37 Thereafter, the Chinese government formally announced that it would gradually adopt a market economy with Chinese characteristics, which triggered another wave of inflow of foreign investment.38 The surge of foreign capital and technology inflow led to a new stage of participation by China in international mechanisms. It became a state party to the ICSID Convention on February 6, 1993.39 This was, however, considered a small step in ensuring the protection of foreign investors as China had made a reservation that it “would only consider submitting to the jurisdiction of ICSID disputes over compensation

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Agreement between the Government of the United Kingdom and North Ireland and the Government of the People’s Republic of China concerning the Promotion and Reciprocal Protection of Investments, available at http://www.unctad.org/sections/dite/iia/docs/ bits/uk_china.pdf. China and Britain signed a Joint Declaration on the Question of Hong Kong in 1984, per which Britain agreed to return Hong Kong to China by 1997 and China agreed to maintain the capitalist system of Hong Kong thereafter for 50 years. That was considered by China as a friendly move. Therefore it was understandable that China was prepared to make more cessions in its BIT with Britain than with other states. In the 1980s, China signed nineteen BITs, which made it an attractive destination for foreign investment. After the Tiananmen movement of June 4, 1989, foreign countries imposed economic sanctions on China. Within the country and among the leadership, there were doubts as to whether further opening of the country would be in its best interest. Deng Xiaoping, whilst without official position, followed the steps of late Chairman Mao Zedong, toured the more liberal-minded southern part of China and used his personal influence to call upon the leadership for further reform. Article 15 of the Constitution reads: “The State practices a planned economy on the basis of socialist public ownership. It ensures the proportionate and coordinated growth of the national economy through overall balancing by economic planning and the supplementary role of regulation by the market.” The 1993 Amendment to the Constitution changed the expression “planned economy” into “socialist market economy.” China signed the ICSID Convention on February 9, 1990 and deposited its instrument of ratification on January 7, 1993; it became a member state on February 6, 1993. As for China’s reservation, see ICSID official document No. ICSID 8-D.

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resulting from expropriation or nationalization.”40 Thereafter, China accelerated the process of concluding new BITs and amending the existing ones. The most recently re-negotiated BITs include China-Germany (December 2003),41 China-Finland (November 2004),42 China-Spain (November 2005)43 and China-Portugal (December 2005).44 These newly revised BITs represent China’s current position on international investment law. They constitute a new generation of BITs with China’s participation. Significant changes that have been built into these BITs relate, inter alia, to the definition of investment and investors, the treatment of foreign investment, expropriation, compensation and dispute settlement, in particular investor-state arbitration. The FTAs to which China is a party are also important to foreign investment. China did not participate in FTAs until quite recently. The first FTA negotiated by China was with the Association of South East Asia Nations (ASEAN) in November 2001.45 One year later, a framework agreement was entered into, laying out the FTA plan in stages.46 The parties agreed to implement an early harvest agreement relating to trade in goods together with a dispute settlement mechanism in July 2005, whilst 40

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45

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The reservation made by China was considered by some as reluctance to accede to international arbitration. See Mark A. Cymrot, Investment Disputes with China, Dispute Res. J., Aug-Oct, 2006. The Agreement between the People’s Republic of China and the Federal Republic of Germany on the Encouragement and Reciprocal Protection of Investments was signed on December 1, 2003 and entered into force on November 11, 2005, available at http://www. unctad.org/sections/dite/iia/docs/bits/china_germany.pdf. The Agreement between the Government of the Republic of Finland and the Government of the People’s Republic of China on the Encouragement and Reciprocal Protection of Investments, available at http://www.unctad.org/sections/dite/iia/docs/bits/china_ finland.pdf, was signed on November 15, 2004 and entered into force on November 15, 2006. The Agreement between the People’s Republic of China and the Spanish Kingdom on the Encouragement and Reciprocal Protection of Investments was signed on November 14, 2005; it has not yet entered into force. The Agreement between the People’s Republic of China and the Republic of Portugal on the Encouragement and Reciprocal Protection of Investments was signed on December 9, 2005; it has not yet entered into force. At the invitation of Malaysian government, the former Chinese Foreign Minister Qian Qichen attended the 24th ASEAN Ministerial Meeting in 1991, which started the bilateral dialogue. China then participated in the 25th ASEAN Ministerial Meeting at the invitation of ASEAN Standing Committee. In 1996, China became a full member of the dialogue at the 29th ASEAN Ministerial Meeting. The formation of a FTA between China and ASEAN was suggested by the former Chinese Premier Zhu Rongji at the ChinaASEAN summit on November 6, 2001. The Framework Agreement on Comprehensive Economic Cooperation between the People’s Republic of China and the Association of South East Asian Nations was signed on November 4, 2002 in Phnom Penh and entered into force on July 1, 2003. The Framework Agreement contains 16 articles to set out the principles of cooperation between the parties and to outline a timetable thereof.

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negotiations on trade in services were aimed to be completed in January 2007 for implementation in July 2007.47 The objective of the early harvest agreement is to establish a full FTA by 2010 for the six original ASEAN members and in 2015 for the remaining four members.48 Investment is part of the overall China-ASEAN FTA. Yet, by early 2009, due to the financial tsunami impacting the world economy, negotiations on issues relating to investment had not yet started. The China-Chile FTA49 also essentially concentrates on trade issues such as elimination of trade barriers, remedies, etc. and almost leaves investment aspects untouched, except by stipulating that the parties shall establish close cooperation aiming at “stimulating productive synergies, creating new opportunities for trade and investment”50 and promoting “the establishment of information exchange channels and facilitat[ing] full communication and exchange” in policies, laws and economic information that may affect investment.51 This lack of a detailed mechanism addressing investments was apparently due to China’s inexperience in and traditionally narrow views on FTAs. The most comprehensive FTA that China has entered into is that with New Zealand which was preceded by the China-Pakistan FTA.52 In general, China’s FTA with Pakistan is much less comprehensive than that with New Zealand insofar as bilateral investments are concerned. Both FTAs aim at establishing a mechanism for promoting cross-border direct investment.53 One of the objectives of the China-New Zealand FTA is to “substantially increase investment opportunities.”54 At the same time, the China-Pakistan FTA requires the parties to “encourage investors of the other

47 48

49

50 51 52

53

54

The early harvest program was stipulated in Article 6 of the Framework Agreement. As its objective, the Framework Agreement wishes to strengthen and enhance economic, trade and investment collaboration by progressively relaxing trade and other barriers. To achieve the purpose, Articles 2 and 3 provide a timetable for a gradual integration of ASEAN members into their FTA with China. The Free Trade Agreement between the Government of the People’s Republic of China and the Government of the Republic of Chile was signed on November 18, 2005 in Pusan, Korea. China-Chile FTA, art. 104(b). Id. art. 112. The Free Trade Agreement between the Government of the People’s Republic of China and the Government of the Islamic Republic of Pakistan was entered into on November 24, 2006. For the purpose of promoting bilateral investment, the China-New Zealand FTA requires the establishment of a Committee on Investment, whilst the China-Pakistan FTA has no such arrangement. This difference in arrangement shows that China and New Zealand give bilateral investments a more important role. See China-New Zealand FTA, art. 150. China-New Zealand FTA, art. 2. Other objectives that are investment related include “promote conditions for fair competition in the free trade area,” “provide for the protection and enforcement of intellectual property rights” and “eliminate barriers to trade in … services.”

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Party to make investments in its territory.”55 Yet, the China-Pakistan FTA makes investments to be made “in accordance with its laws and regulations” a condition to qualify for protection, whilst the China-New Zealand FTA does not include the same requirement. In addition to Chapter 11 that deals exclusively with investment issues, the ChinaNew Zealand FTA emphasizes on “creating new opportunities for … investment.”56 This is to echo the objectives of the FTA requiring specific actions of the parties. Such actions include policy dialogue and exchange of information, providing assistance and facilities to business persons, etc.;57 the implementation of this obligation requires positive and concrete actions of the parties which include cooperation and information exchange between government institutions, business groups and industrial associations, and the holding of investment marts.58 Another distinct feature of the China-New Zealand FTA is its emphasis on the special interests of small and medium-sized enterprises. This is a reflection of the economic and business reality of the bilateral relationship: because of the size of the New Zealand market, it is more attractive to the small and medium-sized Chinese entities; also, the majority of Chinese business entities are also relatively small. Therefore to promote investment by such enterprises is in the interest of both China and New Zealand.59 II. Qualified Investments and Investors For the effective promotion and protection of foreign investment, the qualification by BITs and FTAs of investments and investors is essential. Whether a given investment or investor should be granted protection under the treaty depends on such qualification. In this regard, the China-Norway BIT, one of the earliest bilateral agreements on investment China entered into, provides: The term “investing” means assets permitted by either contracting party in accordance with its laws and regulations, including, in particular: a. Movable and immovable property and other property rights such as mortgages, pledges, liens, usufruct, and other similar rights; b. Shares, stock, and debentures of companies or interests in the property of such companies; 55 56 57

58 59

China-Pakistan FTA, art. 47. China-New Zealand FTA, art. 173(b). China-New Zealand FTA, art. 175.2. No similar provisions are found in China-Pakistan FTA. It is a reflection of China’s caution in committing to the establishment of a comprehensive mechanism which it may not be able to handle. China-New Zealand FTA, art. 176.2(a) and (c). Most of the provisions of Chapter 14 on Cooperation are related to small and mediumsized enterprises. These provisions require the Contracting Parties to take government measures for the promotion of co-operation of small and medium-sized enterprises of both countries.

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e.

Claims to money or to any performance under contract having a monetary value; Copyrights, industrial property rights (such as patents, trademarks and external designs of industrial products), know-how, and goodwill; and Concessions conferred by law or under contract permitted by law, including concessions to search for and exploit natural resources.

The definition of “investment” in the China-Norway BIT, though relatively incomplete compared with those of modern such agreements, has the effect of filling the gap of Chinese law,60 as in the Chinese legal system, international treaty provisions prevail over local laws in case of conflict.61 That was precisely the use of BITs in the development of the Chinese legal system on protection of foreign investment. The China-UK BIT, which was agreed upon a few years later, gives investment a broader definition than the China-Norway BIT. It states that “[i]nvestment means every kind of asset accepted as investment by a contracting party,” and that it “includes investments existing at the date of entry into force of this Agreement; and a change in the form in which assets are invested does not affect their character as investments.”62 In the current generation of BITs that China has entered into, the definition of “investment” has been further expanded. For instance, the 2003 China-Germany BIT defines investment as “every kind of asset invested directly or indirectly by investors of one Contracting Party in the territory of the other Contracting Party.”63 With 60

61

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None of the Chinese laws contains detailed definition of foreign “investment.” In general, Chinese law regards cash, equipment, technology and intellectual property rights contributed by foreign investors as investment. Yet, it does not define the outer limit of the rights arising from such invested items. For example, Article 5 of the Chinese-foreign Joint Venture Law reads: “Each party to a joint venture may make its investment in cash, in kind or in industrial property rights, etc. The technology and the equipment that serve as the foreign party’s investment must be advanced technology and equipment that actually suit our country’s needs. If the foreign party causes losses by deception through the intentional use of backward technology and equipment, it shall pay compensation for the losses. The investment of a Chinese joint venture may include the right to the use of a site provided for the joint venture during the period of its operation. If the right to the use of the site does not constitute a part of the Chinese party’s investment, the joint venture shall pay the Chinese Government a fee for its use. The various investments referred to above shall be specified in the joint venture contract and articles of association and the value of each (excluding that of the site) shall be jointly assessed by the parties to the venture.” Article 142 of the General Principles of Civil Law of the People’s Republic of China provides that where any international treaty concluded or acceded to by China contains provisions differing from those in the laws of the country, the provisions of the international treaty shall apply, unless the provisions are ones with respect to which China has made a reservation. Article 236 of the Chinese Civil Procedure Law provides that where an international treaty ratified or acceded to by the People’s Republic of China contains provisions differing from those found in this Law, the provisions of the international treaty shall apply, unless the provisions are the ones on which China has announced reservations. 1986 China-UK BIT, art. 1(1)(a). 2003 China-Germany BIT, art. 1(1).

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the broad definition to include investments made “indirectly,” the coverage by the China-Germany BIT is much wider than the one afforded by prior agreements.64 The China-Germany BIT also enumerates on a non-exclusive basis activities that should be considered as investment, including:65 (a) (b) (c) (d)

(e)

movable and immovable property and other property rights such as mortgages and pledges; shares, debentures, stock and any other kind of interest in companies; claims to money or to any other performance having an economic value associated with an investment; intellectual property rights, in particular copyrights, patents and industrial designs, trademarks, trade-names, technical processes, trade and business secrets, know-how and good-will; business concessions conferred by law or under contract permitted by law, including concessions to search for, cultivate, extract or exploit natural resources.66

Compared with the 1983 agreement, the current China-German BIT includes stocks and shares, business secrets and good-will, and concessions to search for, cultivate, extract or exploit natural resources as investment. In addition, the open-ended definition of investment—“includes, though not exclusively”—may extend the application of the BIT to any extent.67 Obviously, in order to maintain the scope of 64

65

66 67

Article 1(1) of the 1983 China-Germany BIT provides that “‘[i]nvestment’ means all the assets under the effective laws of the contracting parties, mainly include: (a) ownership rights of movable and immovable property and other property rights such as mortgages and pledges; (b) shares and other kind of interest in companies; (c) claim to money that can be used in creating economic value or to any other performance having an economic value; (d) copyrights, industrial property rights, technical processes, know-how, trademarks and trade names; and (e) concession rights, including concessions to search for, exploit and extract.” This is comparable with the recent US model BIT under which “‘investment’ means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include: (a) an enterprise; (b) shares, stock, and other forms of equity participation in an enterprise; (c) bonds, debentures, other debt instruments and loans; (d) futures, options, and other derivatives; (e) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts; (f ) intellectual property rights; (g) licenses, authorizations, permits, and similar rights conferred pursuant to domestic law; and (h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges.” 2003 China-Germany BIT, art. 1(1). In Fedax N.V. v. Venezuela, promissory notes were taken as qualified investment. One of the rationales given by the tribunal for reaching this conclusion was that Article 1 of the Netherlands-Venezuela BIT gave an open-ended definition of “investment” by providing that “the term ‘investments’ shall comprise every kind of asset and more particularly

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application within the expectation of the parties, the Protocol to the BIT68 stipulates that “investments” are those “made for the purpose of establishing lasting economic relations in connection with an enterprise, especially those which [are] allow[ed] to exercise effective influence in its management.” The Protocol further defines indirect investments as those “invested by an investor of one Contracting Party through a company which is fully or partially owned by the investor and having its seat in the territory of the other Contracting Party.” The Protocol is an integral part of the BIT and the two were entered into at the same time. The restrictions made in the Protocol were a compromise of the parties; a Chinese negotiator told this author that the term “indirect investment” was too indeterminate for China but Germany insisted to have it included in the BIT.69 As a result, whilst the BIT explicitly provides for the protection of indirect investment, the Protocol formulates restrictions to narrow down the application of such provisions. This practice also reflects the cultural sensitivity inherent in BIT negotiations. The China-New Zealand FTA has a wider definition of investment than that of the China-German BIT. It covers, in addition, “bonds, including government issued bonds, debentures, loans and other forms of debt, and rights derived there from;” and “any right conferred by law or under contract and any licenses and permits pursuant to law.”70 In comparison, the China-Pakistan FTA’s definition of investment is almost identical with that of the China-German BIT.71 Another notable difference is that, in the China-Pakistan FTA, it is provided that “any change in the form in which assets are invested does not affect their character as investments provided that such a change is in accordance with the laws and regulations of the Party in whose territory the investment has been made,” whilst in both the China-New Zealand FTA and the China-German BIT, the words “provided … made” are not included. The BITs and FTAs that China has entered into list possible areas and activities as investments, a practice common to international investment treaties. As a consequence, what may constitute an investment is subject to interpretation in practice, which is also often the source for disputes. Although China has not yet been involved in an investor-state arbitration, related decisions made by arbitral tribunals are of sig-

68

69

70

71

though not exclusively … .” See Fedax N.V. v. Venezuela, ICSID Case No. ARB/96/3, Decision on Jurisdiction, July 11, 1997. The Protocol and the BIT between China and Germany were signed on the same day. The preamble of the Protocol states: “On signing the Agreement …, the plenipotentiaries, being duly authorized, have, in addition, agreed on the following provisions, which shall be regarded as an integral part of the said Agreement.” It is also the practice of China in international treaty making that less important provisions and concrete provisions as well as those that may be amended afterwards may be stipulated in a separate document such as a protocol of the main agreement. China-New Zealand FTA, art. 135. It also stipulates that non-interest bearing loans and other forms of debt should be treated as investments, provided that they are registered with the competent authorities of a Party. Article 46 of the China-Pakistan FTA does not include industrial designs in its definition of investment.

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nificance in determining how the provisions will be interpreted in practice. The bestknown criteria established for determining investment are the “Salini test,” according to which the notion of investment must include the following: (a) a contribution of money or other assets of economic value; (b) a certain duration; (c) an element of risk; and (d) a contribution to the host State’s development.72 China would welcome the Salini test, albeit the last element of it has been criticized by some:73 whether a given investment contributes to the economic development of a country may be difficult to ascertain. As discussed earlier, Chinese law requires foreign investors to contribute advanced technology which, in the view of China, will contribute to its economic development. Suppose a foreign investor is found to have failed to provide advanced technology and the Chinese government, local or central, decides to suspend preferential treatment of the foreign investor. The question as to whether the investment concerned is qualified for protection will arise. The tribunal in charge will need to decide whether the Chinese authorities were at fault in approving the foreign investment and, if not, whether the foreign investor acted deceptively. Any major investment will involve a substantial period of preparation, construction and operation before it makes any profit. Where the Chinese government, after supposedly examining the documents and business plans regarding the foreign investment, approved the project and later on decides that the investment is not qualified to enjoy preferential treatment due to the technology invested being less advanced, arbitral tribunals are unlikely to be sympathetic.74 Thus the BITs entered into may play a crucial role in protecting foreign investors’ interests. The BITs entered into by China prior to the mid-1990s all require that the investment must be made “in accordance with the laws and regulations” of the host country. The recently concluded BITs, however, do not include such requirement. The ChinaGerman BIT simply defines investment as “every kind of asset invested directly or indirectly by investors of one Contracting Party in the territory of the other Contracting Party.”75 Article 2 on the Promotion and Protection of Investments states that “Each Contracting Party shall encourage investors of the other Contracting Party to make investments in its territory and admit such investments in accordance with its laws and regulations.” It then continues to provide for constant protection and security.76 The China-New Zealand FTA not only does not require foreign investment to be made by following host country laws but also omits such provisions in the articles stipulating 72 73 74

75 76

See Salini Costruttori S.p.A. v. Morocco, ICSID Case No. ARB/OO/4, Decision on Jurisdiction of 23 July 2001. For instance, it was put in doubt by the tribunal of L.E.S.I.-DIPENTA v. Republique Algerienne Democratique et Populaire, Decision on Jurisdiction of July 12, 2006, para. 72. For instance, in Saipem, the tribunal stated that since “Saipem invested substantial technical, financial and human resources in the project, which gave a substantial contribution to Bangladesh’s economic development, and it assumed risks for a significant duration (the performance phase lasted two and a half years),” the related contract was an investment. Saipem S.p.A. v. Bangladesh, ICSID Case No. ARB/05/07, para. 100. China-German BIT, art. 1(1). China-German BIT, art. 2(2).

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treatment of foreign investments. This is in contrast to the China-Pakistan FTA which contains similar stipulations like those in the first generation BITs of China.77 The differences in treaty requirements like those entered into by China on the making of investments may lead to problems in practice. It can be argued, as the China-New Zealand FTA was entered into subsequent to the China-Pakistan FTA and as the former does not require investments to be made “in accordance with the laws and regulations of the host country,” at least the Chinese government was not unaware of the significance of the omission. In practice, such omission may stop China (of course also New Zealand) from claiming an investment to be unqualified. For instance, in Fraport,78 the term “in accordance with the laws and regulations” was interpreted as a condition for investment making and hence a pre-condition for the giving of consent by the host country for investor-state arbitration. In that case, the BIT between the Philippines and Germany defined investment as “any kind of asset accepted in accordance with the respective laws and regulations of either Contracting State,”79 and required the Contracting State to “promote as far as possible investment in its territory by investors of the other Contracting State and admit such investment in accordance with its Constitution, law and regulations.”80 Fraport, the foreign investor, entered into a secret shareholders agreement whereby it secured managerial control of the investment project, Terminal 3 of the Ninoy Aquino International Airport of the Philippines, in violation of the Philippine Anti-Dummy Law (“ADL”). The tribunal of which Professor Michael Reisman was a member held that “[i]n summary, Fraport had been fully advised and was fully aware of the ADL and the incompatibility with the ADL of the structure of its investment which it planned and ultimately put into place with the secret shareholder agreements.”81 Based on the fact that the foreign investor knowingly made an investment not “in accordance” with local law, the Fraport tribunal decided not to recourse to the object and purpose interpretative technique of treaties to offer protection to the foreign investor. In its view, “[i]t is also clear that the parties were anxious to encourage investments, which are the raison d’être of the treaty. But while a treaty should be interpreted in the light of its objects and purposes, it would be a violation of all the canons of interpretation to pretend to use its objects and purposes, which are, by their nature, a deduction on the part of the interpreter, to nullify four explicit provisions. Plainly, as indicated by these four provisions, economic transactions undertaken by a national of one of the parties to the BIT had to meet certain legal requirements of the host state in order to qualify as an ‘investment’ 77

78 79 80 81

Article 46 of the China-Pakistan FTA provides that the term investment “means every kind of asset invested by investors of one Party in accordance with the laws and regulations of the other Party in the territory of the latter.” It should be noted that the ChinaPakistan FTA was concluded before the China-New Zealand FTA. Fraport AG Frankfurt Airport Services Worldwide v. Philippines, ICSID Case No. ARB/03/25, Aug. 16, 2007. Agreement between the Federal Republic of Germany and the Republic of the Philippines concerning the promotion and Reciprocal Protection of Investments, art. 1. Id. art. 2. Fraport, supra note 78, para. 327.

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and fall under the Treaty.”82 The tribunal hence ruled that ICSID had no jurisdiction over the dispute as the Philippine consent for ICSID arbitration was conditioned on a valid investment according to the BIT. Based on the rulings of Fraport, even though Chinese law may require that foreign investments meet certain requirements, including advanced technology, etc., as international treaty provisions prevail over national laws in case of conflict, the China-New Zealand FTA type agreements may enable foreign investors not to comply with Chinese law. The Chinese government still requires foreign investors to go through an approval process when making an investment. Once approval is given, it is more difficult for the Chinese government to argue that a given investment was not made in accordance with Chinese law. The approval processes may work for China as a recipient of foreign capital where the foreign investor fails to fully disclose or deliberately makes false disclosure of the information required by law. The case in point is Plama,83 where foreign investors failed to disclose the shareholding of the entity through which the investment was made. The tribunal held that the deliberate concealment of shareholding “amount[ed] to fraud, calculated to induce the Bulgarian authorities to authorize the transfer of shares to an entity that did not have the financial and managerial capacities required”84 for an oil refinery. In reaching its decision, the tribunal elaborated at length upon “good faith” as a general principle in business transactions including international investment. The decision of the tribunal apparently rests on the fact that under Bulgarian law, operation of an oil refinery requires approval of the government and that the foreign investor’s concealment of shareholding was for the purpose of obtaining the host government’s approval which was given upon false qualification of the foreign investor.85 In other words, the foreign investor used bad faith as a means to obtain the approval of the host government, an action which in itself violated the local law. As a result, the investor was not entitled to the protection of the relevant treaty—Energy Charter Treaty.86 82

83 84 85

86

Id. para. 340. The Fraport tribunal was obviously convinced by the evidence introduced by the foreign investor that “Even assuming, however, that the ‘preponderance of evidence’ test which applies in civil law must yield in the instant case to a ‘beyond a reasonable doubt’ test because the subject of the ‘in accordance’ inquiry is a Philippine criminal statute, this is a case in which res ipsa loquitur. The relevant facts, all of which are found in Fraport’s own documents, are incontrovertible.” Id. para. 399. Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, August 27, 2008. Id. para. 135. The tribunal stated that “This [non-disclosure of shareholding] may be acceptable in some cases but not under the present circumstances in which the State’s approval of the investment was required as a matter of law and dependant on the financial and technical qualifications of the investor. If a material change occurred in the investor’s shareholding that could have an effect on the host State’s approval, the investor was, by virtue of the principle of good faith, obliged to inform the host State of such change.” See id. para. 145. These rulings are in compliance with the findings of some international organizations. UNCTAD, for instance, suggests that there should be limitations in interpreting investment agreements, that is, an “investment that was not established in accordance with the

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Compared with international practice, the lack of requirement of investment making in compliance with local laws may lead to disputes. For instance, when a foreign investor makes an investment in China and the Chinese government does not raise any questions, in arbitration or other fora of dispute resolution, it will be difficult for the Chinese government to avail itself of the argument of non-compliance with local law as a basis to exclude the investment from treaty coverage. The only possible defense that China may have is “good faith.” Yet, to what extent this defense can go is still doubtful. In balance, although it is understandable that for purposes of competing with other countries in the region for foreign capital, China decided to eliminate the requirement of compliance with local laws and regulations, in the long run China may have to pay a high price. The inconsistency of treaty provisions may further complicate the matter. With regard to delimiting the term “investor,” another important aspect of international investment law, the China-Norway BIT does not contain a general definition of “investor”; it defines “nationals” as natural persons with the nationality of China or Norway, and “companies” as the legal persons of either party.87 At the time of ratifying the China-Norway BIT, China did not have a company law.88 The concept of “companies” was unclear. To accommodate both parties, the China-Norway BIT provides that, as for China, companies are “economic bodies incorporated and domiciled” in China. In respect of Norway, companies are “judicial persons and sole proprietors domiciled in the territory of Norway, or companies and associations, regardless of whether or not the liabilities of its partners, members or constituents are limited, and regardless of whether their activities are profit-oriented.”89 Protection is accorded by one contracting party to nationals and companies of the other.90

87 88

89 90

host country’s laws and regulations would not fall within the definition of ‘investment’ as used in the agreement.” The purpose is said to be to “to induce foreign investors to ensure that all local laws and regulations are satisfied in the course of establishing an investment.” See UNCTAD, Scope and Definition, UNCTAD Series on Issues in International Investment Agreements, UNCTAD/ITE/IIT/11 (Vol. II) (1999), at 24. 1984 China-Norway BIT, arts. 3 and 4. Before the promulgation of the Company Law in 1993, different Chinese laws governing enterprises were adopted based on the ownership of enterprises. Whilst the ChineseForeign Joint Venture Law was adopted in 1979, the Law of the People’s Republic of China on Industrial Enterprises Owned by the Whole People was promulgated in 1988. 1984 China-Norway BIT, art. 4(2). In theory, the national treatment was mutually applicable to both the Chinese and Norwegian investors. As at that time no Chinese entities made investments in Norway, the benefit of this provision was one-sided. Since 1983, Norwegian companies have been investing in China. The main sectors of their investments are post and telecommunications, electronics, machinery, transportation, light industry, agriculture and environmental protection. Most of the investment projects are located in Eastern coastal cities. See http://www.tpbjc.gov.cn/Article_Show.asp?ArticleID=12803.

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Regarding natural person investors, the China-Germany BIT provides that as neither party recognizes dual nationality, the national law of each party should be referred to for the purpose of ascertaining nationality issues.91 For non-natural-person investors, the China-Germany BIT deleted a provision in the previous BIT that required a Chinese non-natural investor to “be entitled to do business with foreigners;” at that time an enterprise that wished to engage in business transactions with a foreign counterpart had to first secure approval of the government.92 The current China-Germany BIT sets forth that “economic entities incorporated and constituted under the laws and regulations of China, irrespective of whether or not for profit and whether their liabilities are limited or not” may be qualified as investors on the condition that they have their seat/domicile in the territory of China.93 The requirement for a German legal person investor is to have its seat in the territory of Germany. This “seat” test, however, may give rise to difficulties, as it is unclear whether a mere registration of a company in the territory of either party would satisfy the requirement.94 The 2005 China-Finland BIT requires both incorporation and registered office as necessary elements for determining the nationality of legal entities.95 91

92

93 94

95

2003 China-Germany BIT, arts. 2(1)(a) and 2(2)(a). According to Articles 4, 5 and 6 of the Chinese Nationality Law, any person born in China or abroad whose parents are both Chinese nationals or one of them is a Chinese national, has Chinese nationality. Where a person whose parents are Chinese nationals but have settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired a foreign nationality at birth shall not have the Chinese nationality. Article 7 of the Foreign Economic Contract Law of 1985 provides that contracts which were subject to the approval of the state, as provided for by the laws or administrative regulations of the People’s Republic of China, should be formed only after such approval was granted. With the entering into force of the Contract Law of the People’s Republic of China on October 1, 1999, the Economic Contract Law ceased to be effective on the same day. The current Contract Law does not contain provisions requiring commercial contracts with foreign counterparts to be approved before coming into force. Yet, other Chinese laws require certain types of transactions to be subject to government approval. 2003 China-Germany BIT, art. 2(2)(b). Article 2 of the Company Law of the People’s Republic of China provides, “The term ‘company’ as mentioned in this Law refers to a limited liability company or a joint stock company limited set up within the territory of the People’s Republic of China according to the provisions of this Law.” Under Article 10, “A company shall regard its main office as its domicile.” According to Article 39 of the General Principles of the Civil Law of the People’s Republic of China, “A legal person’s domicile shall be the place where its main administrative office is located.” Article 184 of the Opinions of the Supreme People’s Court on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China (For Trial Implementation) provides, however, that for a foreign legal person, the law of its country of registration shall be deemed as its governing law, and the capacity for civil conduct of a legal person shall be determined according to its governing law. The China-Finland BIT defines “investor” as: “(b) any legal entity … incorporated or constituted under the laws and regulations of either Contracting Party and having its registered office in that Contracting Party.”

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The China-New Zealand FTA affords protection to enterprise investors which are “constituted or organized under the law of a Party, and a subsidiary located in the territory of a Party and engaged in substantive business operations there.”96 A plain reading of the above provision would mean that where an entity from one Party sets up an enterprise (subsidiary) in the territory of the other Party, the subsidiary may not be entitled to the treaty protection unless it engages in substantive business activities. Where the position is clear for entities to set up subsidiaries in the territory of the other Party, there is no similar requirement in relation to natural persons from one Party who have constituted or organized entities in the other Party. This situation is dealt with in Article 149 (Denial of Benefits), subsection (b) of which permits a Contracting Party to deny the benefits to “[i]nvestors of the other Party where the investment is being made by an enterprise that is owned or controlled by persons of the denying Party and the enterprise has no substantive business operations in the territory of the other Party.” The word “persons” without doubt covers both legal and natural persons.97 The essence of these provisions is to prevent Tokios Tokeles 98 types of situations where the control test was decided not to apply in the determination of the nationality of foreign investors. In Tokios Tokeles, the complainant, a publishing company of Lithuania 99 of whose shares were owned by Ukrainians, established a wholly owned subsidiary (Taki spravy) in Ukraine to conduct publication and advertisement business. Taki Spravy published a book in favor of the opposition leader Yulia Tymoshenko. The Ukrainian government apparently didn’t like it and from then on the problems started. The Ukrainian government took several measures against Taki Spravy including tax investigations, cancelling of contracts, placing assets under administrative arrest, seizure of financial documents, etc. In the arbitration, the respondent Ukraine argued that Tokios Tokeles was 99 owned by Ukrainians and therefore was not an investor under the investment agreement of the two counties. The Tribunal held that under Article 25 (2)(b) of the ICSID Connection, the nationality of juridical persons should be mainly determined on the basis of place of incorporation and that the nationality of a company did not depend upon the nationality of the controlling shareholders. In Tokios Tokeles, the foreign investment did not even involve a transfer of funds from

96

97

98

China-New Zealand FTA, art. 135. Natural person investors include those having a permanent status in one of the Parties. As China does not yet have any law or regulation giving permanent status to foreigners, the FTA prescribes that upon China adopting such laws, these provisions will apply. In the China-Pakistan FTA, “investors” include “(a) natural persons who have the nationality of either Party in accordance with the laws of that Party; (b) legal entities, including companies, associations, partnerships and other organizations, incorporated or constituted under the laws and regulations of either Party and have their seats in that Party.” See China-Pakistan FTA, art. 46(3). As the “denial of benefit” applies to the matters covered in the entire chapter on investment, all issues including dispute resolution, foreign investors and investments are likely to be affected. Tokios Tokeles v. Ukraine (ICSID Case No. ARB/02/18), June 29, 2007, Award on Jurisdiction.

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Lithuania to Ukraine. Yet, that did not bother the Tribunal in determining the nature of foreign investment as in its view, under the ICSID Convention, the source of the invested capital did not have to be from a foreign country. This award, albeit it may be intended to advocate a policy for promoting foreign investment, is contrary to the very intent of the ICSID Convention, i.e., to resolve disputes between an investment host country and a foreign national. Unless the control test is applied, any investor may make use of the device of incorporation in a foreign country for the purpose of challenging its own government in an international forum.99 This is the situation that the Chinese government has always tried to avoid.100 The half-way approach taken by the China-New Zealand FTA is apparently another compromise. III. Treatment of Investment The treatment of foreign investors and investments is the center issue of any BIT. The basis on which to hold the host government responsible is that the body that acts or omits to act is part of the government. Another condition for the host government to be responsible is that the failure of performing the obligation must be proved on the fact that a promise has been made. In Fireman’s Fund Insurance, a claim was based on the negotiation, development, and ultimate rejection of a Recapitalization Program by a Working Group established by the Mexican Government which argued that no legal claims could be based on the activities of the Working Group, because it was, under Mexican law, not a governmental organization with decision-making authority or power to bind the State.101 The tribunal did not directly address the issue as to whether the Working Group was part of the Mexican government. Rather, it ruled that the “evidence submitted to the Tribunal does not show a case of a commitment made on behalf of Mexico by the Working Group and subsequently repudiated by the State,” as the Working Group was a “forum in which proposals of various kinds were discussed among the relevant Mexican agencies and with interested outside parties, subject at all times to ratification or rejection by the competent government authorities.”102 It also stated that the complainant “should have known and did know that while the recommendations of the Working Group were crucial” to decisionmaking by the government, they were nonetheless recommendations only.103 BITs seldom list the authorities of the BIT contracting parties whose conduct or omission would be attributed to the contracting parties. In practice, such issues are determined in accordance with international law, in particular customary interna99 100

101 102 103

For discussions on this point, see the dissenting opinion of the president of the Tokios Tokeles tribunal. Even some Chinese scholars have difficulties accepting the Tokios Tokeles award. See Zhu Yansheng, The Theories and Practice on the Nationality of Legal Person under the ICSID Regime, 13 J. Int’l Econ. L. 244 (2006). Fireman’s Fund Insurance Company v. United Mexican States, ICSID (Additional Facility), July 17, 2006, para. 149. Id. para. 150. Id. para. 153.

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tional law. The Articles on Responsibilities of States for Internationally Wrongful Acts adopted in 2001 by the International Law Commission and commended to the attention of Governments by the UN General Assembly in Resolution 56/83 of 12 December 2001 (the ILC Articles) are often referred to by tribunals. According to the ILC Articles, the conduct of any state organ, being legislative, executive or judiciary or central or local government bodies, in compliance with the laws of that state, must be considered an act of that state under international law.104 Such acts are generally referred to as acts of de jure organs. An act of state may also be created by the conduct of a person or entity which is not a de jure organ but which is empowered by the internal law to exercise elements of governmental authority, provided the person or entity is acting in that capacity in the particular instance.105 Under the Articles of the ILC, in fact, even the conduct of a person or group of persons who are not part of the government may be considered an act of their state under international law, provided they act “on the instructions of, or under the direction or control of that State in carrying out the conduct.”106 Insofar as the treatment standard is concerned, about 20 of the BITs that China has entered into provide for national treatment,107 and most of its recently concluded BITs contain the relative treatment standard—either national treatment or MFN treatment with better treatment applicable, as well as the fair and equitable treatment standard.108 These standards have been incorporated into the China-Germany 104 105 106 107

ILC Articles, art. 4. ILC Articles, art. 5. ILC Articles, art.8. Among the 117 BITS China has entered into so far only 17 provide for national treatment, whilst the others stipulate fair and equitable treatment as the standard. See Zhang Caixia, Review and Re-establish the National Treatment System in Sino-Foreign BITs, 1 Rule of Law Tribune 240 (2007). 108 For example, Article 3 of the 2005 China-Portugal BIT provides: “(1) Investments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment in the territory of the other Contracting Party. (2) Each Contracting Party shall accord to investments and activities associated with such investments by the investors of the other Contracting Party treatment not less favorable than that accorded to the investments and associated activities by its own investors. (3) Neither Contracting Party shall subject investments and activities associated with such investments by the investors of the other Contracting Party to treatment less favorable than that accorded to the investments and associated activities by the investors of any third State.” Article 3 of the 2005 China-Czech BIT reads: “(1) Each Contracting Party shall in its territory accord to investments and returns of investors of the other Contracting Party treatment which is fair and equitable and not less favorable than that which it accords to investments and returns of its own investors or to investments and returns of investors of any third State, whichever is more favorable. (2) Each Contracting Party shall in its territory accord to investors of the other Contracting Party, as regards management, maintenance, use, enjoyment or disposal of their investment, treatment which is fair and equitable and not less favorable than that which it accords to its own investors or to investors of any third State, whichever is more favorable.”

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BIT, applicable to “investments and activities associated with such investments.” It should be noted, however, that it is far from clear what may constitute an activity associated with or relating to an investment. The explanation given in the Protocol to the China-Germany BIT offers little assistance in this regard. It sets out: “the following shall more particularly, though not exclusively, be deemed ‘activity’ within the meaning of Article 3(2): the management, maintenance, use, enjoyment and disposal of an investment.”109 Whatever purpose it may try to serve, the term “though not exclusively” should be interpreted to include any activity that may be reasonably justified as related to an investment. Of course, a question that may immediately be raised is whether the national and MFN treatment standard under the BIT could be applied to pre-investment activities.110 The 2004 China-Finland BIT, explicitly stipulates that national treatment is only applied “with respect to the operation, management, maintenance, use, enjoyment, expansion, sale or other disposal of investments that have been made.”111 At the same time, “[w]ith respect to the establishment, acquisition, operation, management, maintenance, use, enjoyment, expansion, sale or other disposal of investments,”112 the MFN treatment applies. Like the NAFTA Agreement, the China-Finland BIT provides that “each Contracting Party shall accord to investments by the investors of the other Contracting Party the treatment, which, according to the investor is more favorable,”113 which means that the investors concerned may choose what treatment to receive. In this regard, there would not be any problem as China has always accorded foreign investors more favorable treatment than its own nationals.114 Concerning the treatment standards, the China-Portugal BIT, in which reference is made to international law, is typical. Article 10(1) of this agreement states, “if the provisions of law of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addi109 Protocol to the Agreement between the People’s Republic of China and the Federal Republic of Germany on the Encouragement and Reciprocal Protection of Investments, art. 3. 110 Chinese law has no provisions for pre-investment national treatment. China is now an observer of the Energy Charter Treaty which requires pre-investment to be afforded national treatment. It is therefore not unforeseeable that China may accept pre-investment national treatment in its BITs as that will give additional protection to its investment abroad. 111 2005 China-Finland BIT, art. 3(2). 112 2005 China-Finland BIT, art. 3(3). 113 2005 China-Finland BIT, art. 3(4). 114 For example, according to the Circular of the State Council of China on Adjustment of Imported Equipment Taxation Policies, the State Council decided that, starting from January 1, 1998, imported equipment of domestic investment projects and foreign investment projects encouraged by the State shall enjoy exemption from tariff and import stage value-added tax within the specified scope. Before January 1, 2007 when the Decision of the State Council on Amending the Interim Regulations of the People’s Republic of China on City and Town Land Use Tax entered into force, foreign-invested enterprises had been exempted from the land use tax. They also enjoyed lower income taxation before January 1, 2008 when the Enterprise Income Tax Law entered into force.

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tion to the present Agreement contain regulations entitling investments by investors of the other Contracting Party to a treatment more favourable than is provided for by the present Agreement, such regulations shall, to the extent that they are more favourable, prevail over the present Agreement.”115 Such provisions may beg more questions than resolving any, as what may constitute international standard is, to say the least, very uncertain.116 The situation that they may catch is China joining the Energy Charter Treaty and giving pre-investment national treatment to foreign investors. As discussed earlier, in China’s practice, the protection and treatment, both national and most favored nation treatment, offered to investors are granted without exceptions. This is in contrast with NAFTA, Article 1410(1) of which provides: “Nothing in this Part shall be construed to prevent a Party from adopting or maintaining reasonable measures for prudential reasons,” even if the effect of such measures (as contrasted with their motive or intent) is discriminatory.117 The NAFTA exception of prudential measures is apparently confined to financial measures.118 In China’s specific commitments in joining the WTO relating to the services sector, a similar provision was included. As it is very difficult, if not impossible, to draw a line between investment and trade in services in most of the cases, this may cause difficulties in practice. For instance, where a measure is introduced by the Chinese government pursuant to the prudential principle under the General Agreement on Trade in Services (“GATS”), 115

2005 China-Portugal BIT, http://www.chinahotelsreservation.com/china_law/Agreement_between_china_ law_the_Government526.html, art. 10(1). Other BITs featuring the same provisions include the China-Tunisia BIT (2004), the China-Bosnia BIT (2002), and the China-Netherlands BIT (2001). 116 The Neer case was regarded as the historical starting point of the standard of treatment to foreigners. According to the Commission, “the treatment of an alien, in order to constitute an international delinquency, should amount to outrage, to bad faith, to willful neglect of duty or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.” See Neer v. United Mexican States, 4 R. Int’l Arb. Awards 60, 61-62, para. 4 (Mex.-U.S. Gen. Cl. Comm’n 1926). In practice, however, some tribunals departed from the high standard and held that the minimum standard was evolving with time passing by. For example, in the ADF case, the tribunal interpreted customary international law referred in Article 1105(1) of the NAFTA as “not ‘frozen in time’ and that the minimum standard of treatment dose evolve … what customary international law projects is not a static photograph of the minimum standard of treatment of aliens as it stood in 1927 when the Award in the Neer case was rendered. For both customary international law and the minimum standard of treatment of aliens it incorporated are constantly in a process of development.” ADF Group Inc. v. United States, Award of January 9, 2003, para 179. 117 Fireman’s Fund Ins. Co. v. United Mexican States, ICSID (Additional Facility), para. 162. 118 Olin L. Wethington, the US principal negotiator for financial services under NAFTA writes: “Article 1410(1 )(a) … carves out of the national treatment and other obligations of the financial services chapter a right to take reasonable measures even though discriminatory in application, to protect the safety and soundness of the financial system. This regulatory prerogative to protect the integrity of the financial system is accepted internationally.” Olin L. Wethington, Financial Market Liberalization: The NAFTA Framework § 5.07 (1994).

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it may be judged against the provisions of BITs relating to fair and equitable treatment, national treatment, etc. As the WTO dispute resolution mechanisms only permit Members to institute complaints, private investors are likely to choose international arbitration as a forum for resolving their disputes with the Chinese government. In this circumstance, may the Chinese government use GATS compliance as a defense for not providing fair and equitable treatment or national treatment? Fair and equitable treatment has already become standard in China’s recent BITs. The China-Germany BIT, the China-Finland BIT, the China-Spain BIT and the China-Portugal BIT have all adopted largely the following language: “investments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment in the territory of the other Contracting Party.”119 The China-Russia BIT concluded in 2006 followed these precedents even though it adopted a slightly different wording.120 Fair and equitable treatment is not a new concept in international investment law. Yet, recent arbitral awards involving Argentina and other countries have certainly sent a strong signal that the clause may have a devastating impact on the legal system and laws of the host countries.121 China was of course not unaware of the potential consequences of the fair and equitable clause. Yet it still decided to have the clause stated in its BITs which shows that China is determined to be a responsible member of the international community and to let its laws and administrative decisions be subject to the scrutiny of international arbitration.122 For a country with the communist party at the helm of affairs, this is in itself an important contribution to international investment law. The China-New Zealand FTA, as a matter of principle, does not apply to trade in services. Yet it extends its application to government measures that affect the supply 119 2003 China-Germany BIT, art. 3(1): China-Finland BIT, art. 3(1); China-Spain BIT, art. 391); and China-Portugal BIT, art. 3(1). 120 Article III (1) of the 2006 China-Russia BIT provides that “each Contracting Party shall ensure in its territory fair and equitable treatment of the investments made by investors of the other Contracting Party and activities in connection with such investments.” 121 Currently no consensus has emerged from international arbitration practice. Where the factual situations are the same, different arbitration tribunals, relying on different BITs with almost identical provisions, came to contradictory decisions relating to the host country’s obligations under the fair and equitable treatment. See CME Czech Republic B.V. v. Czech Republic, UNCITRAL; Lauder v. Czech Republic, UNCITRAL. Of course, it may be argued that in every legal proceeding, there are always at least two lawyers, that is every provision may be subject to two interpretations. It is equally true that judges of the same court or different courts may take different views on the same legal issue. The fact of inconsistence in arbitration practice may, however, hinder the acceptance of the provisions, although no solution to this problem is yet available. 122 Once an arbitration tribunal decides that China is in breach of its obligations under the fair and equitable treatment clause, it is bound to amend its laws if the legal provisions are the source of the breach or to change the practices of the government if such behaviors are questioned. It is exactly in this context that BITs will have an important effect on Chinese laws and government decision-making.

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of services through commercial presence with respect of transfer of funds, fair and equitable treatment, compensation, expropriation and subrogation. In such matters, a service supplier may invoke the investor-state dispute settlement mechanism in resolving its differences with the host government.123 Constant protection and security, fair and equitable treatment, national treatment and MFN treatment have now become standard clauses in China’s BITs. The China-Pakistan FTA follows the model of the China-German BIT, including the limitations with regard to the application of the MFN treatment clause.124 Article 48(3) of the China-Pakistan FTA modified the China-German BIT slightly by providing that MFN treatment shall not encompass the benefit of any treatment, preference or privilege “by virtue of: (a) any other customs union, free trade zone, economic union and any international agreement resulting in such unions, or similar institutions; (b) any international agreement or arrangement relating wholly or mainly to taxation; (c) any arrangements for facilitating small scale trade in border areas.” The China-New Zealand FTA has, however, adopted a much elaborated standard. In terms of national treatment, it stipulates that the specific areas should include “management, conduct, operation, maintenance, use, enjoyment or disposal, by the investors” to their investment and associated activities.125 It also makes like circumstances the condition for affording national treatment.126 There are also restraints on the application of national treatment provisions. They include (1) existing non-conforming measures; (2) continuation and amendments of non-conforming measures provided that such amendments do not increase the degree of non-conformity; and (3) a measure that would not fall into the national treatment obligations under an existing bilateral investment treaty that a Party has concluded.127 This having been stipulated, the Parties are under an obligation to remove the non-conforming measures progressively.128 123 China-New Zealand FTA, art. 137. The measures affecting services do not include subsidies provided by a Party or “laws, regulations, policies and procedures of general application governing the procurement by government agencies of goods and services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods or the supply of services for commercial sale.” Id. art. 137(5). 124 It also provides that where the laws of either Party or international obligations existing at conclusion of the FTA or established thereafter between the Parties result in more favorable treatment to the investments of the investors from the other Party than that provided by the FTA, the more favorable treatment should apply. See China-Pakistan FTA, art. 55. 125 China-New Zealand FTA, art. 138. The China-Pakistan FTA and BITs that China has entered into recently do not have such detailed provisions. 126 Id. 127 China-New Zealand FTA, art. 141. 128 The China-New Zealand FTA does not provide specifically what may constitute a nonconforming measure. It instead incorporates the provisions of the WTO Agreement on Trade-Related Investment Measures mutatis mutandis. See China-New Zealand FTA, art. 141.

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The China-New Zealand FTA also explicitly states that dispute resolution procedures under other arrangements do not apply to investors of any party, nor any differential treatment to third countries “under any free trade agreement or multilateral international agreement.”129 Differential treatment involving fisheries and maritime matters under international agreements may also be considered as exceptions to MFN treatment.130 The China-New Zealand FTA puts fair and equitable treatment and full protection and security in the same paragraph which requires the Parties to accord the treatment “in accordance with commonly accepted rules of international law.”131 It further elaborates that fair and equitable treatment includes “the obligation to ensure that, having regard to general principles of law, investors are not denied justice or treated unfairly or inequitably in any legal or administrative proceeding affecting the investments of the investor,” whilst full protection and security “requires each Party to take such measures as may be reasonably necessary in the exercise of its authority to ensure the protection and security of the investment.”132 Under the China-New Zealand FTA, fair and equitable treatment and full protection and security require the host government not to take any measures that may result in unreasonable or discriminatory treatment against the “management, maintenance, use, enjoyment and disposal of the investments.” This is by far the most elaborated provision on the subject that China has committed itself to. Yet, the China-New Zealand FTA also stipulates that the violation of other articles “does not establish that there has been a violation” of the article on fair and equitable treatment and full protection and security.133 This is so because the fair and equitable treatment requirement is bound to have a significant impact on the laws and legal systems of the host country. What is fair and equitable, without treaty obligations, would entirely be decided by administrative and judicial bodies. With the provisions of the China-New Zealand FTA, China must ensure that its decision-making complies with internationally recognized practice, in particular due process. On the transfer of funds with respect to making an investment, investment returns, payments arising from royalties, concessions, loan contracts, liquidation of 129 China-New Zealand FTA, art. 139. This exclusion includes “agreements on the liberalization of trade in goods or services or investment, any measures taken as part of a wider process of economic integration or trade liberalization between the parties to such agreements.” 130 China-New Zealand FTA, art. 139(5). 131 Id. art. 143(1). This arrangement of wording is very different from other FTAs and BITs that China has entered into. Whether or not this will become the practice of China is worth observing. 132 China-New Zealand FTA, art. 143(2) and (3). 133 As mentioned earlier, the China-New Zealand FTA puts fair and equitable treatment and full protection and security in Article 143. In BITs that China signed recently and ChinaPakistan FTA, fair and equitable treatment is provided for in one article, while protection and security are guaranteed in another. Also, instead of “full,” they both use the adjective “constant” before the words protection and security.

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investments, expropriation, restitution or compensation as a result of losses owing to war, armed conflict or a state of national emergency, insurrection or riot, etc., the China-New Zealand FTA contains the common provisions of the China-German BIT and the China-Pakistan FTA.134 In addition, the China-New Zealand FTA provides: (1) detailed arrangements for exchange rates; (2) China may retain its foreign exchange control provided that MFN treatment obligation is observed and the measures are not excessively burdensome on the investors; and (3) both Parties may restrain, on the basis of equity, non-discrimination and good faith and through laws, transfer relating to: (a) (b) (c) (d) (e)

bankruptcy, insolvency, or protection of the rights of creditors; issuing, trading or dealing in securities, futures or derivatives; criminal or penal offences; financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or ensuring compliance with orders or judgments in judicial or administrative proceedings.135

What should also be noted is that Article 142 of the China-New Zealand FTA prohibits both parties from requiring their own nationals to transfer back their “income, earnings, profits or other amounts derived from or attributable to investments in the territory of the other Party” or penalizing those who fail to transfer.136 China currently has such requirements. As a compromise, the FTA permits China not to be subject to the above provisions on the condition that Chinese laws and regulations so provide.137 It is debatable whether BITs and FTAs should allow investors from third parties (non-parties) to have a free ride and whether substantive business should be a precondition for such investors to be afforded protection. The China-New Zealand FTA took the conservative or cautious position by requiring substantive business operation as a condition for investors from a third party to enjoy the treaty’s protection.138 This also applies to situations where an investment is made by an enterprise owned or controlled by persons of a non-Party which has the legal person status of either Party to the FTA. This provision may in practice exclude the jurisdiction of ICSID.139

134 The China-Pakistan FTA’s provisions on transfer are almost identical with those in the China-German BIT. 135 China-New Zealand FTA, art. 142(4). 136 Id. art. 142(5). 137 The significance of this provision is that once China abandons the current transfer back requirement, it may not re-introduce such rules. See id. art. 142(7). 138 Id. art. 149. 139 Under Article 25(2)(b) of the ICSID Convention, where a juridical person may have the nationality of a Contracting State, but because of its foreign control, the States Parties may agree not to grant it the same treatment as that afforded other juridical persons of the same State.

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The applicable law relating to the investment contract is of course as important as the requirement regarding the forum for dispute resolution. Chinese law requires that all foreign direct investment contracts be governed by Chinese law, a provision which should be regarded as covering both substantive law and conflict of law issues. This requirement may not affect the interpretation of BITs that China has entered into. Yet, once it comes to the issue as to whether a foreign investor or its investment has been treated properly, unless international law requires otherwise, Chinese law may have to be consulted. For instance, where a foreign investor wishes to import a piece of machinery, the applicable customs duties will have to be ascertained according to Chinese law, on the basis of which it will also be determined whether the foreign investor is treated fairly and equitably. This arrangement is in compliance with the ICSID Convention, Article 42(1) of which stipulates that tribunals must apply the laws and rules agreed upon by the parties and that “[i]n the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.” IV. Expropriation and Compensation Large-scale or open expropriation is no longer a main threat to contemporary international investment. Indirect and creeping expropriation, however, often triggers disputes. As one of the host countries which have attracted the largest amounts of foreign capital, China has always paid particular attention to the issue of expropriation but essentially limited its understanding of it to the traditional view. For instance, the China-Norway BIT requires that the expropriation of foreign direct investments be for a public purpose.140 In addition, it requires the country carrying out the expropriation or nationalization to apply the principle of nondiscrimination.141 With regard to compensation for expropriation, the China-Norway BIT made some progress from the Chinese Joint Venture Law by providing:142 Compensation shall be made without undue delay and shall be realizable and freely transferable. It shall amount to the value of the investment immediately before the expropriation, and shall include interest until the date of payment.

This, of course, does not meet the requirements of the Hull Rule, according to which the host state is required to pay prompt, adequate and effective compensation.143 Yet, considering the fact the Chinese law at that time was quite primitive and that China 140 141 142 143

1984 China-Norway BIT, art. 5(1). Id. Id. art. 5(2). The Hull Rule was articulated in 1938 by U.S. Secretary of State Cordell Hull in response to the Mexican expropriation of U.S .agricultural and oil interests and became the cardinal principle of U.S. custom in this sphere. See M. Sornarajah, The International Law on Foreign Investment 229-30 (1994).

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was the pure recipient of foreign capital,144 it was an important step in subjecting the country to international norms. The China-UK BIT brought China closer to the general practice of developed countries. Rather than recognizing the expropriation as a right of states, it prescribes that “[i]nvestments … shall not be expropriated, nationalized or subjected to measures having effect equivalent to expropriation or nationalization” except for a public purpose and with compensation.145 Expropriation or nationalization conditioned on public purpose and compensation was not a prevailing view among Chinese academics at that time.146 It was truly a significant move on the part of China. The China-UK BIT still adopts the “reasonable compensation” standard in general terms. Yet, immediately thereafter, the reasonable standard is further defined: “Such compensation shall amount to the real value of the investment expropriated immediately before the expropriation or impending expropriation became public knowledge, shall include interest at the normal rate until the date of payment, shall be made without undue delay, be effectively realizable and be freely transferable.” 147 It should be noted that the prevailing Chinese view on compensation for expropriation then was “reasonable compensation.” The wording of the China-UK BIT was obviously to adopt the Hull Rule in effect, whilst giving lip-service to the “reasonable compensation” in order to quiet potential internal criticisms.148 Actually the adoption of the

144 It was since 1979 that China had started to invest abroad. Initially, most of its investments were in the areas of construction and catering. See http://www.chinapilot.net/ Economy/01/05/article/114.htm. 145 According to the Chinese traditional view, the right to expropriation emanates from the sovereignty of a state; therefore, any condition attached to it by the Western developed countries to legitimate expropriations is unjustified. However, Article 5 of the China-UK BIT seems to admit that China has given up the right to expropriate foreign investments unless the two conditions are met. 146 In the 1980s, by referring to the Charter of Economic Rights and Duties of States, a state’s right to expropriation or nationalization was recognized as an important aspect of its sovereignty over its natural resources. See Wang Tieya, International Law 430-31 (1981); Professor Yao Meizhen held that the concept of a nationalization conditioned on public purpose and compensation was based on the capitalist doctrine of inviolability of private property which was totally unacceptable theoretically, as the right of nationalization was an attribute of sovereignty. For details, see Yao Meizhen, International Investment Law 379 (1989). 147 1986 China-UK BIT, art. 5(1) 148 In Chinese culture at that time, any major concession made to foreign countries may have been considered as non-patriotic and a deviation from socialism, and would have been subject to criticism. This was more so in the mid-1980s, as there were hot debates as to what measures should be considered as reforms and what as adopting the techniques of capitalism. The debates ended with Deng Xiaoping’s tour in southern China when he stated that nothing was exclusively patented for capitalism. For discussion of this issue, see Wang, supra note 2.

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standard in the BIT surprised a lot of Chinese and foreign scholars as in other official documents China still refused to recognize the Hull Rule as acceptable standard.149 It is also stipulated in the China-UK BIT that “The national or company affected shall have a right, under the law of the Contracting Party making the expropriation to prompt review, by a judicial or other independent authority of that party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph.”150 Judicial review of administrative actions at that time was unheard of in the Chinese legal system.151 By granting foreign investors such right in case of expropriation amounted to inserting “judicial review” into the Chinese system.152 As international treaty provisions have the effect of filling the gap and prevailing over any conflicting provisions of Chinese law, this prescription serves as a tool to move international norms into Chinese domestic law.153 A common feature of the BITs that China has entered into lately is making expropriation conditional. Nearly all of these BITs contain the following provisions:154 Neither Contracting Party shall expropriate, nationalize or take other similar measures against the investments of the investors of the other Contracting Party in its territory, unless the measures taken meet the following conditions: (a) for the public interest; (b) under domestic legal procedure (except for the 2003 China-Germany BIT); (c) without discrimination; and (d) against compensation.

149 Law on Wholly Foreign-Owned Enterprises, supra note 12, art. 5. Also, it should be noted that at that time China was solely a recipient of direct foreign investment. With its investment in foreign countries growing rapidly after the turn of the century, it is in China’s interest to ensure adequate compensation for expropriation. 150 1986 China-UK BIT, art. 5(1). 151 In the Protocol on the Accession to the WTO, China agreed that there shall in all cases be an opportunity for an impartial and independent judicial body to review specified administrative actions. Under the current Chinese legal system, judicial review is only available with respect to concrete administrative actions through the means of administrative litigation. By contrast, based on the doctrine of separation of powers, under the common law, judicial review includes constitutional review of legislation. For a discussion of judicial review in China, see Hu Jinguang, The Space of Chinese Judicial Review, Henan Soc. Scis., Sept. 2006, at 72. 152 It was most probably the first time that a bilateral agreement had such an important effect on the Chinese legal system. 153 A distinct feature of globalization is that international norms have a direct effect on national legal systems. With China joining the World Trade Organization and international norms moving into the Chinese legal system, impacts on domestic laws and law enforcement mechanisms have become the natural consequences of concluding international agreements. For a discussion of this issue, see Guiguo Wang, Globalizing the Rule of Law, 48 Indian J. Int’l L. 21 (2008). 154 See, e.g., Article 4 of the 2005 China-Portugal BIT, Article 4 of the 2005 China-Spain BIT and Article 4 of the 2004 China-Finland BIT.

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Regarding compensation for expropriation, the 2003 China-Germany BIT stipulates that “such compensation shall be equivalent to the value of the investment immediately before the expropriation is taken or the threatening expropriation has become publicly known, whichever is earlier.”155 In comparison, the 2006 China-Russia BIT, the 2004 China-Finland BIT, the 2005 China-Spain BIT and the 2005 China-Portugal BIT provide that the compensation “shall be equivalent to the fair market value of the expropriated investment at the time immediately before the expropriation was taken or the impending expropriation became public knowledge, whichever is earlier.”156 This slightly different version may not necessarily lead to arguments that that the “value” under the 2003 China-Germany BIT is not “market value” of the investment in question, even though international arbitration practice does not provide a definite answer.157 Without exception, all the above-mentioned BITs contain clauses that compensation must be paid without undue delay, including interest, effectively realizable and freely transferable.158 These provisions are in essence a reflection of the Hull Rule. These provisions of the recent Chinese BITs confirm that China has accepted the standard.159 None of these BITs, however, contain detailed rules on how the market value should be calculated, whether the Discounted Cash Flow Method (DCF) could be employed, whether the expected profits should be compensated, and what

155 2004 China-Germany BIT, art. 4(2). 156 2006 China-Russia BIT, art. 4(2); 2004 China-Finland BIT, art. 4(2); 2005 China-Spain BIT, art. 4(2); and 2005 China-Portugal BIT, art. 4(2). 157 The issue relating to compensation is what it should include. For instance, in addition to the investment made, it is questionable whether profits should be part of the market value and, if “yes,” whether such profits should be ascertained after deduction of future cash flows or losses. In CME, Professor Brownlie obviously held a different view. See the separate opinion of Brownlie in CME Czech Republic B.V. v. Czech Republic. 158 Article 4(2) of the 2003 China-Germany BIT provides that: “Such compensation shall be equivalent to the value of the investment immediately before the expropriation is taken or the threatening expropriation has become publicly known, whichever is earlier. The compensation shall be paid without delay and shall carry interest at the prevailing commercial rate until the time of payment; it shall be effectively realizable and freely transferable.” Similarly, Article 4(2) of the 2005 China-Portugal BIT states: “The compensation shall be paid without delay; it shall be effectively realized and freely transferred.” Article 4(3) of the 2004 China-Finland BIT stipulates: “Compensation shall be fully realizable and shall, in order to be effective for the affected investor, be paid without delay. It shall include interest at a commercial rate established on a market basis for the currency of payment from the date of dispossession of the expropriated property until the date of actual payment.” 159 In comparison, the 1984 China-Finland BIT provided that “payment of compensation shall not be delayed without reasonable excuse,” indicating that it could be delayed where valid reasons existed. This was also true for the 1983 China-Germany BIT which provided that “payment of compensation shall not be delayed inappropriately.” There were no specific standards of compensation included in the 1983 China-Germany BIT either.

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may constitute expected profits.160 Such issues will have to be dealt with by arbitral tribunals or the courts in practice. It will be interesting to observe how international investment arbitration and treaty practice may affect the interpretation of these BITs with China. All the recent BITs with China contain rules on indirect expropriation in the form of “other legal measures having similar effect,”161 which is similar to the formulation in the NAFTA Agreement.162 This, however, offers little help with regard to issues such as the question as to what specific measures may constitute indirect or creeping expropriation. As some commentators have pointed out, “in any case, the wording of the existing investment treaties has failed to address the indirect expropriation problem. On the contrary, it brings forward this question, and assumes that general international law can provide the answer.”163 The fact that the United States and Canada not long ago began to stipulate detailed rules in their BITs is seen as a response to such criticism and the situation that more and more disputes in international investment were related to indirect expropriation within the NAFTA framework.164 In the Protocol of China-India BIT signed in 2006, the criteria for indict expropriation were stipulated in detail with a balanced emphasis on results and purposes as follows:165 (1)

A measure of expropriation includes, apart from direct expropriation or nationalization through formal transfer of title or outright seizure, a measure or series of measures taken intentionally by a Party to create a situation whereby the investment of

160 It should be noted that in CME, Professor Brownlie argued strongly against the inclusion of uncertain and speculative future profits into the market value. He also argued that when deciding the genuine value of an investment, the status of international law at the time when the BIT in question was entered into should be taken into account. Based on this theory, Professor Brownlie stated, “The standard of appropriate or just compensation carries the strong implication that, in the case of a going concern and more generally, the compensation should be ‘subject to legitimate expectations and actual conditions,’ as Schachter indicates. Schachter’s assessment coincides with the period in which the relevant treaty was concluded.” Separate Opinion of Brownlie, para. 32, CME Czech Republic B.V. v. Czech Republic. 161 See, e.g., 2003 China-Germany BIT, art. 4(2); China-Portugal BIT, art. 4(1); and ChinaFinland BIT, art. 4(1). 162 Article 1100(1) of NAFTA provides that “No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (‘expropriation’).” 163 Rudolf Dolzer, Indirect Expropriations: New Developments?, 11 N.Y.U. Envtl. L.J. 64, 79 (2002). 164 See, e.g., Metalclad Corp. v. Mexico; S.D. Myers, Inc. v. Canada; Pope & Talbot Inc. v. Canada; and Methanex v. United States. 165 Protocol to the Agreement between the Republic of India and the People’s Republic of China on Promotion and Protection of Investments, art. III. Ad Article 5.

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(2)

(3)

an investor may be rendered substantially unproductive and incapable of yielding a return without a formal transfer of title or outright seizure. The determination of whether a measure or a series of measures of a Party in a specific situation, constitute measures as outlined in paragraph 1 above requires a case by case, fact based inquiry that considers, among other factors: (i) the economic impact of the measure or a series of measures, although the fact that a measure or series of measures by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that expropriation or nationalization, has occurred; (ii) the extent to which the measures are discriminatory either in scope or in application with respect to a Party or an investor or an enterprise; (iii) the extent to which the measures or series of measures interfere with distinct, reasonable, investment-backed expectations; (iv) the character and intent of the measures or series of measures, whether they are for bona fide public interest purposes or not and whether there is a reasonable nexus between them and the intention to expropriate. Except in rare circumstances, non-discriminatory regulatory measures adopted by a Contracting Party in pursuit of public interest, including measures pursuant to awards of general application rendered by judicial bodies, do not constitute indirect expropriation or nationalization.

In practice, a measure may include a law or regulation or decree or final court judgment.166 In particular, a so-called creeping expropriation may involve a variety of actions or omissions by the government as a whole. This was eloquently stated by the International Court of Justice in the Fisheries Jurisdiction case:167 “[I]n its ordinary sense the word [measure] is wide enough to cover any act, step or proceeding, and imposes no particular limit on their material content or on the aim pursued thereby.”168 The importance of treaty provisions on expropriation and compensation is that the question as to what action or omission may constitute expropriation would, via BIT, be decided by international arbitration tribunals in accordance with the Vienna Convention on the Law of Treaties169 rather than the domestic law of the contracting

166 See The Loewen Group, Inc. v. United States, ICSID Case No. ARB(AF)/98/3, Jan. 5, 2001. The tribunal held that the “rule of judicial finality (often described as ‘substantive’) was thought to be directed to the responsibility of the State for judicial acts.” Id. para. 68. The tribunal however distinguished judicial “affirmation of a general principle” from a specific order and deemed only the former constituting a measure. Id. para. 52. 167 Fisheries Jurisdiction Case (Sp. v. Can.), 1998 I.C.J. 432. 168 Id. para. 65. 169 International practice, in particular the dispute resolution practice of the WTO, shows that tribunals are very much prepared to interpret treaties, bilateral or multilateral, according to the Vienna Convention on the Law of Treaties.

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parties.170 It is precisely in this sense that the treaty provisions have taken the power of interpretation away from the national courts. The FTAs of which China is a party also consistently take the position that expropriation must meet the following conditions.171 They must be: – for a public purpose; – in accordance with domestic laws; – carried out in a non-discriminatory manner; and – effectuated against payment of compensation. At the same time, the China-New Zealand FTA provides that expropriation must not be contrary to any undertaking that the Party concerned has given.172 Like most other BITs, none of the Chinese BITs has defined the term “expropriation.” In practice, when deciding what may constitute an “expropriation,” arbitral tribunals sometimes take the following into account: – There must be a taking by the host government or its agency of an investment by a covered investor, which may either be a failure to act or an omission of act by the host state; in most cases omission alone may not constitute a measure tantamount to expropriation;173 the investment expropriated may be in the form of intangible or tangible property.174 – The taking must be substantial in the sense that it has effectively deprived the investor of his economic use and enjoyment of the rights to the property or a distinctive part of such property, provided the taking is permanent in nature which usually involves a transfer of ownership from the investor to another person.175

170 For standards of determining indirect expropriation, also see L.Yves Fortier & Stephen L. Drymer, Indirect Expropriation in the Law of International Investment: I Know It When I See It, or Caveat Investors, 19 ICSID Rev. 293 (2004). 171 Whilst both of them have adopted the four conditions, Article 49 of China-Pakistan FTA uses the terms “domestic legal procedure” and Article 145 of China-New Zealand FTA chooses “applicable domestic law.” 172 China-New Zealand FTA, art. 145. 173 See Draft Articles on Responsibility of States for International Wrongful Acts, adopted by the International Law Commission at its 53rd session (2001), art. 2, available at http:// www.un.org/law/ilc/texts/State responsibility/responsibilityfra.htm. 174 See Mondev Int’l Ltd. v. United States, ICSID Case No. ARB(AF)/99/2, Award, Oct. 11, 2002, at 98, available at http://ita.law.uvic.caldocuments/Mondev-Final.pdf; Methanex Corp. v. United States of America, Final Award, Aug. 3, 2005, at 17, available at http://ita. Jaw.uvic.ca/documents/Methanex FinalAward.pdf. 175 According to the tribunal of the Tippets case, “[a] deprivation or taking of property may occur under international law through interference by a state in the use of that property or the enjoyment of its benefits, even where legal title to that property is not affected.” See Tippets, Abbett, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, Award No. 141-7-2, reprinted in 6 Iran-U.S. Cl. Trib. Rep. 219 (1984).

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The taking may be de jure or de facto and “direct” or “indirect,”176 and may be a single measure or a series of measures that the totality of which has the effect of expropriation (often referred to as creeping expropriation). The taking is outside the ambit of the investor’s reasonable “investment-backedexpectations.”177

In practice, expropriation may be compensable or non-compensable depending on the circumstance. It is observed that a regulatory action by public authorities of the host state is unlikely to be the subject of legitimate complaint under Article 1110 of the NAFTA.178 When considering whether a regulatory action may be subject to legitimate complaint, other relevant factors must also be taken into account, such as the scope of the police powers, the purpose and effect of the measure, the proportionality of the measure between the means employed and the aim sought to be realized,179 and the bona fide nature of the measure,180 for example, whether it involves discrimination.181

176 Whether a given measure is de jure or de facto expropriatory is insignificant in judging its constituting an expropriation or taking of property. Indirect expropriation has also become a common staple of BITs. This is illustrated by Article 1110(1) of the NAFTA which prescribes that “[n]o Party may directly or indirectly nationalize or expropriate … or take a measure tantamount to nationalization or expropriation. …” In practice, an indirect expropriation is interpreted as a measure that is equivalent to an expropriation or has the effect of expropriation. See Pope & Talbot Inc. v. Canada, Interim Award, June 26, 2000, at 96 and 104, available at http://ita.law.uvic.ca/documents/Pope-InterimAward. pdf; see also S.D. Myers Inc. v. Canada, Partial Award, 13 November 2000, at 285-286, available at http://ita.law.uvic.ca/documents/SDMevers-lstPartiaIAward.pdf; Marvin Roy Feldman Kappa v. United Mexican States, ICSlD Case No. ARB(AF)/99/1, Award, 16 December 2002, at 100, available at http://ita.law.uvic.ca/documents/feldman mexicoaward-english.pdf. 177 The relevance of investor’s expectation to expropriation is that in some businesses, government intervention is expected, in which case a foreign investor may not bring a legitimate complaint for expropriation as a result of an intervention/regulation by the host government. 178 See S.D. Myers Inc. v. Canada, Partial Award, Nov. 13, 2000, at 281, available at http://ita. law.uvic.ca/documents/SDMeyers-lstPartiaIAward.pdf. 179 See Tecnicas Medioambientales Teemed SA. v. United Mexican States, ICSlD Case No. ARB(AF)/00/2, Award, May 29, 2003, at 122 et seq., available at http://ita.law.uvic.ca/ documents/Tecnicas_001.pdf. 180 For discussions of this issue, see Jack Coe, Jr. & Noah Rubins, Regulatory Expropriation and the Tecmed Case: Context and Contributions, in International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law 597, 632-643 (Todd Weiler ed., 2005); and Fortier & Drymer, supra note 170. 181 Discrimination is always an important factor in disputes involving expropriation. In the Fireman’s Fund Insurance case, the tribunal observed: “If there is a ‘haircut’ for holders of debentures, all should be shaven. Conversely, if one is allowed to escape the hands of

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Fair market value as the standard for compensation is now totally acceptable to China, although the wording may differ from BIT to BIT and from FTA to FTA.182 In this respect, the China-New Zealand FTA contains detailed provisions on the calculation of compensation by stating, for instance, that where “the fair market value is denominated in a freely usable currency,”183 the compensation must be ascertained in accordance with the “fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.”184 In case the fair market value is denominated in a non-freely usable currency, the compensation should be calculated at the prevailing market exchange rate for a freely usable currency on the date of payment.185 V. Investor-State Dispute Settlement Dispute settlement mechanisms in China’s earlier BITs usually excluded the jurisdiction of ICSID. Even for those BITs where ICSID jurisdiction was permitted, disputes that could be subject to international arbitration were limited to the scope of expropriation and compensation,186 a practice that has changed dramatically in recent

182

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184 185 186

the barber, the other should be allowed to escape as well.” See Fireman’s Fund Insurance Company v. United Mexican States, ICSID (Additional Facility), para. 203. For instance, the China-Pakistan FTA (Article 49) requires compensation to be equivalent to the value of the expropriated investments immediately before the expropriation or when the impending expropriation becomes public knowledge, whichever is earlier. According to the International Monetary Fund, US dollars, Japanese yen, pound sterling and the Euro are usable currencies. See Selected Decisions and Selected Documents of the IMF, Thirtieth Issue—Freely Usable Currencies (updated as of June 30, 2006). China-New Zealand FTA, art. 145(3). The same applies to interest payment but does not apply to circumstances of compulsory licenses under the TRIPs of the WTO. See China-New Zealand FTA, art. 145(4) and (5). For example, Article 9(3) of the 1994 China-Iceland BIT states: “If a dispute involving the amount of compensation for expropriation cannot be settled within six months after resort to negotiations as specified in paragraph 1 of this Article, it may be submitted at the request of either party to the International Centre for Settlement of Investment Disputes (ICSID) or to an ad hoc arbitral tribunal. Any dispute concerning other matters between an investor of either Contracting Party and the other Contracting Party may be submitted by mutual agreement to an ad hoc arbitral tribunal. The provisions of this paragraph shall not apply if the investor concerned has resorted to the procedure specified in paragraph 2 of this Article.” Article XII(2) of the 1988 China-Australia BIT provides: “If the dispute has not been settled within three months from the date either party gave notice in writing to the other concerning the dispute, either party may take the following action: (a) in accordance with the law of the Contracting Party which has admitted the investment, initiate proceedings before its competent judicial or administrative bodies; and (b) where the parties agree or where the dispute relates to the amount of compensation payable under Article VIII, submit the dispute to an Arbitral Tribunal constituted in accordance with Annex A of this Agreement.”

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years. In 1998, China entered into a BIT with Barbados whereby disputes between a foreign investor and the host state are permitted first to be settled through friendly negotiation, and if no solution can be reached within a reasonable period of time, upon the investor’s discretion, they then may be submitted to the ICSID for arbitration.187 Similar provisions can be found in most recent BITs that China is a party to. These BITs do not exclude the jurisdiction of ICSID in relation to important issues such as the denial of benefits to foreign investors with capital from the host country or controlled or owned by domestic entities of the host country, prudent financial supervisory measures adopted by the host country, significant safety exceptions, etc.188 Such changes in Chinese bilateral investment treaty practice have a lot to do with the fact that in recent years more and more Chinese entities began to invest overseas.189 China is no longer only the largest developing host country of foreign investments but also an important capital exporting state. For the purpose of protecting its own natural and legal persons investing overseas, it is necessary for China to accept the investor-state arbitration as a norm of international investment law. The China-Pakistan FTA and the China-New Zealand FTA also provide for investor-state arbitration. Both FTAs make amicable settlement through negotiation a prerequisite for the submission of a dispute to international arbitration, the period of which is six months.190 Thereafter, the investor concerned may decide to submit its dispute through other means. Under the China-Pakistan FTA, the alternate means include submitting the dispute to a competent domestic court of the host country and arbitration at ICSID; once a local court is chosen, submitting the same dispute

187 Agreement between the Government of the People’s Republic of China and the Government of Barbados on the Encouragement and Reciprocal Protection of Investments, art. 8. This Agreement was signed on July 20, 1998 and entered into force on October 1, 1999, http://www.asianlii.org/cn/legis/cen/laws/ abtgotprocatgobctearpoi1447/. 188 For example, Article 9 of the 2003 China-Germany BIT provides that: “(1) Any dispute concerning investments between a Contracting Party and an investor of the other Contracting Party should as far as possible be settled amicably between the parties in dispute. (2) If the dispute cannot be settled within six months of the date when it has been raised by one of the parties in dispute, it shall, at the request of the investor of the other Contracting State, be submitted for arbitration. (3) The dispute shall be submitted for arbitration under the Convention of 18 March 1965 on the Settlement of Investment Disputes between States and Nationals of other State (ICSID), unless the parties in dispute agree on an ad hoc arbitral tribunal to be established under the Arbitration Rules of the United Nations Commission on the International Trade Law (UNCITRAL) or other arbitration rule.” It should be noted that the 2004 U.S. Model BIT excludes such items from ICSID’s jurisdiction. 189 China’s FDI outflow increased by 32 to 16 billion in 2006, and its outward FDI stock reached 73 billion, becoming the 6th largest in the developing world. Part of this overseas expansion involves considerable investment in other developing and transitional economies. See UNCTAD, 2007 World Investment Report, at 44. 190 See Articles 152 and 153 of the China-New Zealand FTA and Article 55(1) and (2) of the China-Pakistan FTA.

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to ICSID for arbitration is excluded.191 The China-New Zealand FTA also authorizes investors to submit disputes to ICSID for arbitration. At the same time, investors may make use of ICSID conciliation or UNCITRAL arbitration procedures.192 Before availing themselves of international arbitration, the three months advanced notice condition must be satisfied. The purpose of this provision is to afford the host country an opportunity to require the investor concerned to go through administrative review procedures which must already exist in the laws and regulations of the host country.193 The administrative review process in any event may not exceed three months. Host countries always welcome investors to submit their disputes to local courts, whilst investors in most cases prefer international arbitration. Under the China-New Zealand FTA, an investor, having submitted its dispute to a local court of the host country, may later decide to resort to international arbitration provided that it has withdrawn its case from the domestic court before a final judgment is reached.194 This arrangement is in contrast with that under the China-Pakistan FTA. The China-New Zealand FTA also has detailed rules on arbitration procedures which have the effect of modifying the domestic laws of the Parties and those of ICSID.195 One of such modifications is that the period for submission of disputes is limited to three years from “the time at which the disputing investor became aware, or should reasonably have become aware, of a breach of obligation” by the host country, which has caused loss or damage to the investor or its investments.196 Challenges to the jurisdiction of an arbitral tribunal and objections to arbitration on the basis that the claim is without merit have become common tactics in international arbitration. According to the ICSID Convention, a pre-condition for ICSID’s jurisdiction is that the dispute in question is legal in nature. “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State … and a national of another Contracting State.”197 In practice, what may constitute a legal dispute has been given a wide interpretation. In Saipem, Bangladesh argued that the existence of a legal dispute within the meaning of the above provision presupposed the “existence of a cause of action” and that since its dispute with the claimant concerned an arbitral award issued by the International Chamber of Commerce, it did not constitute a legal dispute.198 The tribunal, however, held that a dispute over an arbitral award satisfied the requirement as “it involves a disagree191 192 193 194 195

See China-Pakistan FTA, art. 55(2) See China-New Zealand FTA, art. 153(2). See id. See id. art. 153(3). Article 153(4) of the China-New Zealand FTA clearly states that the provisions of the FTA on dispute settlement prevail over both ICSID and UNCITRAL arbitration and conciliation procedures. 196 China-New Zealand FTA, art. 154(1). 197 ICSID Convention, art. 25(1). 198 The BIT between Bangladesh and Italy defines “investment” as “any kind of property invested” including “credit for sums of money or any right for pledges or services having an economic value connected with investments” (art. 1(1)).

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ment about legal rights or obligations.”199 The underlying principle is that the “rights embodied in the ICC Award were not created by the Award, but arise out of the Contract. The ICC Award crystallized the parties’ rights and obligations under the original contract. It can thus be left open whether the Award itself qualifies as an investment, since the contract rights which are crystallized by the Award constitute an investment within Article 1(1)(c) of the BIT.”200 What is the response of China to this issue? The China-New Zealand FTA requires that a state party which wishes to raise objections to jurisdiction must file its submission no later than thirty days after the constitution of the tribunal.201 The tribunal must decide on the issue of these objections first and must give the parties a reasonable opportunity to present their views and observations.202 With regard to the interpretation of the FTA, the state party to a dispute may request the tribunal to seek a joint interpretation by the Parties thereto. The joint interpretation which must be reached within sixty days has binding force on the tribunal. Where a joint interpretation is not reached, the tribunal should decide the issue on its own account.203 This looks like a balanced arrangement: on the one hand, it requires the state party to disputes to take actions without delay and, on the other hand, the FTA Contracting Parties may give joint interpretations. It is always the Chinese position that those who have participated in the law-making should know best the meaning of the provisions thereof. With government accountability in respect of arbitration growing, the China-New Zealand FTA permits a state disputing party to make public all documents relating to arbitration, except those specifically designated as confidential information when submitted to the arbitral tribunal.204 The tribunal’s award is final and may be in the form of (a) monetary damages plus interest or (b) restitution of property, in which case the state party may choose to pay monetary damages in lieu of restitution.205 Although costs and fees may be included 199 Saipem S.p.A. v. Bangladesh, ICSID Case No. ARB/05/07, issued on March 21, 2007, para. 94. Obviously, the tribunal of Saipem was influenced by the Report of the Executive Directors of the World Bank on the Convention, which stated that where there exists a dispute involving the determination of the existence of legal rights or the scope thereof of a party, there is a legal dispute. See Report of the Executive Directors on the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, World Bank, Mar. 18, 1965, para. 26, available at http://www.worldbank.org/icsid/basicdoc/ partB-section05.htm03. 200 Saipem S.p.A. v. Bangladesh, ICSID Case No. ARB/05/07, para. 127. In the view of the tribunal, “the notion of investment pursuant to Article 25 of the ICSID must be understood as covering all the elements of the operation, that is not only the ICC Arbitration, but also inter alia the Contract, the construction itself and the Retention Money.” Id. para. 114. 201 China-New Zealand FTA, art. 154(2). 202 China-New Zealand FTA, art. 154(3). When making a decision, the tribunal must consider whether either the claim or the objection was frivolous or manifestly without merit. 203 Id. art. 155 . 204 Id. art. 157. 205 Id. art. 158(1).

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in an award, no punitive damages may be awarded.206 Also a “disputing party may not seek enforcement of a final award until all applicable review procedures have been completed.”207 As discussed earlier, to accept the jurisdiction of ICSID without reservation has become a standard practice of China. An important issue is whether foreign investors whose country’s BITs exclude ICSID jurisdiction or accept the jurisdiction thereof, but with reservations, may bring their disputes with China to ICSID through operation of the MFN clause.208 Currently, in all the BITs that China has entered into, there is a MFN clause ensuring “no less favorable” treatment than that afforded any thirdparty investors. It is tremendously uncertain whether an investor may, by invoking the MFN clause of a third-state agreement, be entitled to the right of bringing its dispute with the host country for arbitration at ICSID. There will also be difficulties in ascertaining whether having disputes settled through one means or forum is necessarily more favorable than another. In the end, the question is whether the choice made by the parties to the treaty should be respected. In Plama v. Bulgaria, the tribunal pointed out that arbitration was a generally accepted forum for resolving disputes between investors and states, and that the basic prerequisite for arbitration was the agreement of the parties to arbitrate, which should be clear and unambiguous. Therefore, doubts as to the parties’ clear and unambiguous intention could arise if the agreement to arbitrate was to be reached by incorporation by reference. The tribunal’s view was that any dispute resolution clause must be the result of negotiations. In the circumstance, if inference is allowed, it may amount to let the achievement made through hard negotiations to be replaced by a third-party treaty. The tribunal also considered it would be difficult to argue that one form of dispute settlement would afford the investors better treatment than another (no less favorable rule).209 In Maffezini v. Spain, however, the tribunal concluded that the MFN treatment clause might extend to the settlement of disputes, because, although the ArgentinaSpain BIT contained no explicit provision on the issue, it used the wording “all matters subject to this Agreement” in the MFN clause. In this tribunal’s view, as a proce206 Id. art. 158(3). 207 Id. art. 158(5). 208 At the moment, international practice throws little light on the solution of the issue. Some countries have, apparently for the purpose of certainty, inserted explicit rules into their BITs on the application of the MFN clause to dispute settlement. For instance, the UK-Albania BIT entered into in 1994 provides that “for the avoidance of doubt it is confirmed that the treatment provided for in paragraphs (1) and (2) above (national and MFN treatment) shall apply to the provisions of Articles 1 to 11 of this Agreement (Article 8 is on dispute settlement).” Similar provisions can also be found in the Annex to the 2004 Canada Model BIT, which stipulates that “Article 4 shall not apply to treatment accorded under all bilateral or multilateral international agreements in force or signed prior to the date of entry into force of this Agreement.” 209 See Plama Consortium Ltd. v. Bulgaria, ICSID Case No. ARB/03/24 (Energy Charter Treaty), Decision on Jurisdiction, paras. 183-227.

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dural right, dispute settlement was vital for the protection of the substantive rights in international investment law. Where a third-party treaty contained provisions for the settlement of disputes that were more favorable than those in the treaty under which the investors sought protection, the provisions of the third-party treaty might be extended to the beneficiary of the MFN clause. The tribunal further examined the practice of Spain in respect of BITs with other countries, and concluded that Spain’s preferred practice was to allow for arbitration.210 The tribunal also pointed out that it was necessary to impose certain restraints when the MFN treatment extended to settlement of disputes. First, where one contracting party had conditioned its consent to arbitration on the exhaustion of local remedies, the requirement could not be bypassed by invoking the MFN clause in a third-party agreement. Secondly, where the parties had agreed to a dispute settlement arrangement which included the socalled fork in the road clause, i.e., a choice between submission to domestic courts or to international arbitration, and where the choice once made became final and irreversible, the stipulation could not be bypassed by invoking the MFN clause. Thirdly, where the agreement had already provided for a particular arbitration forum, that option could not be changed by invoking the MFN clause of a third-party treaty in order to refer the dispute to a different system of arbitration.211 In conclusion, if the Maffezini tribunal’s ruling is accepted, investors could shop around for a dispute settlement forum. This may bring uncertainty to the investment environment. The solution of the issue lies in ascertaining the intent of the parties to investment treaties. Unless there is clear evidence that the parties wish to extend the application of the MFN clause to dispute resolution, regarding procedural or other aspects, jurisdiction should not be inferred, as the Salini tribunal ruled. In Salini v. Jordan,212 Article 3 of the Italy-Jordan BIT does not include any pertinent provision, and there was no evidence at the arbitration that it was the common intention of the Parties to have the MFN clause extended to dispute settlement issues. It is precisely in this respect that the joint interpretation technique provided in the China-New Zealand FTA may offer some assistance. To say the least, the Contracting Parties would be given an opportunity to articulate their positions and submit evidence to support their positions. VI. Alternatives for Policy Consideration Over the last 30 years, China gradually accepted the contemporary practice of the international community relating to international investment. At first, there were serious and hot debates about the compatibility of foreign direct investment with China’s ideology of socialism, whilst the Chinese economy was badly in need of foreign capital and technology. Chinese laws adopted at that time therefore imposed a

210 See Maffezini v. Spain, ICSID Case No. ARB/97/7, Award on Jurisdiction, paras. 38-61. 211 Id. para. 63. 212 Salini Construttori S.p.A. v. Jordan, ICSID Case No. ARB/02/13, paras. 114-119.

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lot of restraints on foreign direct investment.213 Provisions relating to full protection and security, fair and equitable treatment, investor-state arbitration, etc. were never considered as options by the Chinese government then. Now China has become the largest recipient among the emerging markets and a sizable capital exporting country making investments in both developed and developing states. This has a lot to do with the rapid inflow of foreign investment together with experience in business planning, management philosophy and skills, social values, norms and spirits of the law, legal values and culture, understanding the need for the rule of law, etc. Due to these factors, China has realized the importance of a sound legal system to economic development, including attracting foreign investment. Chinese are fast learners and, once awakened, can move equally quickly. The establishment of a Chinese legal system that is generally conducive to the inflow of foreign capital in a relatively short period of time is a case in point. To play a role in world affairs, in particular in international investment, commensurate to its size and economic importance, China still has a lot to do. In the contemporary highly globalized world, the line dividing national and international legal systems and norms is getting thinner and thinner; international norms are, via treaties like BITs and international organizations like WTO, moving into the legal system of sovereign states steadily and continuously, a phenomenon totally unprecedented in history. Nation-states need to review and modify their laws and practice instantly and constantly in order to cope with the ever-changing situation. In this regard, China has been revising its laws especially after joining the WTO. Yet, it appears that no equal adequate attention has been paid to BITs. As discussed earlier, China has not shown coherence in its conclusion of BITs and FTAs as illustrated by the prescriptions relating to foreign investment, treatment of investors and investment and dispute resolution. The continuation of this practice will evidently lead to confusion of, and complications with, foreign investors and may work against China’s interest in the long run, as, for instance, in arbitration the panels may have difficulties in ascertaining the true meaning of the provisions of its BITs and FTAs. This situation is not commensurate with the size and importance of China today. As a major player in the international arena and, more importantly, as China wishes to be a responsible member of the international community, it must assume the functions of a country of like importance as expected by the rest of the world. This was best put by Professor Michael Reisman: “Major power differential responsibilities form the very structure of the international economic agencies, for those agencies are premised on the transfer of resources by the wealthiest States to the less 213 For instance, albeit there is no requirement in Chinese law that investment-related disputes must be resolved by courts or arbitral tribunals in China, most of the investment contracts stipulate to have disputes between investment parties resolved first through negotiations and, failing which, through arbitration by the China International Economic and Trade Arbitration Commission. With regard to disputes between foreign investors and the Chinese government, the BITs entered by China in the early years did not contain any mechanisms of dispute settlement; they therefore could only be dealt with through diplomatic protection.

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endowed States. Power within the agencies is distributed on the basis of the size of contributions.”214 BITs and FTAs are certainly components of the “international economic agencies” dealing with international investment issues, in which China should play a significant part. A possible means for China to do so is the preparation of a model BIT and FTA (hereinafter referred to as Chinese Model BIT) which will be used in its negotiations with other countries. This, of course, does not assume that there is no draft BIT or precedent that China follows. What is needed is a publicly announced and much more detailed and comprehensive BIT or FTA draft. The model BIT and FTA do not only serve as the basis for negotiations but also as a policy statement on the subjects concerned which will give better predictability and transparency to foreign counterparts and foreign investors. It should be able to address all the important issues facing the international community, including the following: – Conditions upon qualified investments. In international practice, what may constitute an “investment” is crucial in determining if it is qualified for treaty protection and jurisdiction of ICSID. The Chinese Model BIT should stipulate clearly the Chinese position, in particular whether investments must be made in accordance with Chinese law. The fact that the BITs and FTAs China has entered into are not consistent on this issue makes the clarification of conditions on qualified investment a matter that requires immediate attention. – Relationship between fair and equitable treatment and international minimum standard. Fair and equitable treatment is a relatively recent standard of treatment, whilst the international minimum standard is quite old. In practice, BITs and tribunals sometimes distinguish one from the other and, at times, they treat the two as identical. It would be a significant contribution to international investment law for the Chinese Model BIT to address the issue. Once it is done, the conclusion of future BITs and FTAs as well as the re-negotiation of existing ones would likely be facilitated by adopting its provisions. – Contents of fair and equitable treatment. It is generally accepted that the fair and equitable treatment standard requires the host government to observe due process in its making of decisions that may affect foreign investment or investors. The transparency of the system and existence of a body independent from the administrative authorities empowered to handle disputes between government and foreign investors may also be considered necessary in order to accord fair and equitable treatment to foreign investors. As this area of law is still devel214 W. Michael Reisman, Towards a Normative Theory of Differential Responsibility for International Security Functions: Responsibilities of Major Powers, in Japan and International Law Past, Present and Future 55 (Nisuke Ando ed., 1999). “Since international economic decisions are perceived, in the internal politics of the major powers, primarily in terms of national consequences, the governments of major powers may find themselves under considerable pressure to use their political and legal influence in economic agencies to advance what are perceived as their own short-term national interests.” Id.

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oping, the more detailed the provisions will be, the more impact they will have on the development of international investment law. Indirect expropriation. Most of the expropriation disputes involve indirect expropriation such as regulatory expropriation. It is this kind of disputes that troubles host governments. Where a BIT or FTA is not well drafted, host governments may not have the discretion to take actions necessary in the case of emergencies. Even with provisions like those included in NAFTA, parties may still differ in the application of emergency provisions. This requires the Chinese Model BIT to have well-thought provisions as to the exceptions to fair and equitable treatment, full protection and security, and international minimum standards in situations of emergency. Acts attributable to host government. Where a BIT provides for standards of treatment, etc., acts or omissions complained about must be attributable to the host government. For other countries, sometimes it is problematic as whether a given act or omission should be regarded as that of the host government. Notwithstanding the fact that China is embarking on a market economy, the government is still able to intervene in business transactions either by itself or through semi-governmental organizations. In addition, professional and business bodies such as the China Association of Foreign Enterprises, the China Association of Enterprises with Foreign Trade and Economic Cooperation, and the China Banking Association, just to name a few, may be closely connected with the government whose acts and omissions may therefore be perceived as those of the Chinese government. To provide some clarity, the Chinese Model BIT may stipulate the parameters of what should be considered government actions and omissions. It may be impossible to have an exhaustive list; still, any clarification or elimination of certain bodies as non-government-related may help China a lot in the long run. Investor-state dispute resolution. As discussed earlier, investor-state arbitration is an accepted important feature of the BITs and FTAs concluded by China. One of the issues that the Chinese Model BIT should consider in this regard is the effect of China’s reservation to the ICSID Convention regarding BIT provisions on investor-state arbitration. Under the principle lex posterior derogat legi priori, the inconsistent BIT provisions should prevail over the reservation. Even if this issue can be resolved accordingly, another question is whether investors from the countries whose BITs with China do not provide for investor-state arbitration may, by operation of the MFN clause, invoke the dispute-settlement provisions of other BITs to take their disputes with China to ICSID and other international bodies. The international practice in this regard does not offer much assistance. These issues should be clarified by the Chinese Model BIT. It should also stipulate the domestic procedures that foreign investors should go through before submitting their disputes to ICSID or other international bodies. In this respect, the China-New Zealand FTA has already set an example. What the China Model BIT should do is to adopt the provisions of China-New Zealand FTA, mutatis mutandis, and persuade the counterparts to accept the same or similar provisions.

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– 890

Interpretation rules. To have negotiated a good treaty is, at best, only a halfway accomplishment until the agreement is effectively implemented. The guarantee for effective implementation is correct interpretation. Tribunals often refer to the Vienna Convention on the Law of Treaties when there is a need for rules of interpretation. Chinese practice in treaty-making tends to prefer principled terms rather than detailed provisions. The interpretation thereof may play a much more important part than in other treaty relations. The Chinese Model BIT may, for instance, lay down some guiding principles and rules that China may consider appropriate.

Before drafting a Model BIT, the Chinese government should organize systematic research on each of the issues involved. The Korean government has, for instance, planned to mobilize scholars within and outside of the country to conduct research on investor-state arbitration. Research should also cover the coordination of existing BITs and FTAs and the ones in negotiation as well as those that may be negotiated. China has entered into a framework with ASEAN for the formation of a free trade area; negotiations on the detailed provisions are being conducted. At the same time, ASEAN countries are also interested in serving as the hub for an East Asia Community which in its view is bound to take place. Chinese officials involved in negotiations and decisions on these matters must have strategic thinking as well as good understanding of the details. Good research will help the officials in this regard and the auto-parts type of problems China has encountered in the WTO can be avoided.215 In the process, as this brief essay indicates, it is important to adopt the New Haven School approach articulated by Professor Reisman, that is, the “praxis of five intellectual tasks: goal formulation, trend description, factor analysis, projection of future decisions, and the invention of alternatives.”216

215 In a nutshell, when joining the WTO, China committed itself to granting some preferential treatment to auto-parts without fully understanding the contents of “auto-parts” and later on was found to have violated WTO rules by revising the tariffs. For details of the case, see China—Measures Affecting Imports of Automobile Parts, Report of the Appellate Body, Dec. 15, 2008, WT/DS339/AB/R, WT/DS340/AB/R and WT/DS342/AB/R. 216 Reisman et al., supra note 1, at 576.

Part V Making and Applying Law for the Resources of the Planet

Chapter 44 On Rocks and Maritime Delimitation Bernard H. Oxman

The United Nations Convention on the Law of the Sea (LOS Convention),1 while rooted in the outcome of earlier codification efforts, effected a major transformation of the law of the sea. The most important changes in the legal geography of the sea entailed substantial expansions of coastal state sovereignty and jurisdiction: – more liberal rules on baselines enclosing internal waters;2 – a new regime of archipelagic waters that may be enclosed by archipelagic baselines; – definitive abandonment of the traditional 3-mile limit of the territorial sea in favor of a 12-mile maximum limit;3 – extension of the maximum limit of the contiguous zone to 24 miles from the coastal baselines; – establishment of an exclusive economic zone (EEZ) embracing both the water column and the seabed and subsoil to a maximum distance of 200 miles from the coastal baselines; and – definition of the legal continental shelf as extending well beyond the geographic shelf to the outer edge of the continental margin or 200 miles from the coastal baselines, whichever is further seaward.4

1 2

3 4

United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter LOS Convention]. For a comprehensive analysis of straight baselines and their effects, see W. Michael Reisman & Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992). The references throughout are to nautical miles (1,852 meters or 6,076 feet). Even in the international “Area” of the seabed that remains beyond these limits of coastal state jurisdiction and is declared to be the common heritage of mankind, the coastal state is accorded the right to consent to exploration and exploitation of nonliving resource deposits if these activities “may result in the exploitation of resources lying within national jurisdiction.” LOS Convention, supra note 1, arts. 136, 142, para. 2.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 893-906.

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While the regimes that define the legal consequences of these changes contain important limitations on the substantive scope of coastal state competence in order to accommodate other interests, only one new provision regarding the geographic limits of coastal state jurisdiction swims against this coastal tide. It is a one-sentence exception to an established principle. I. Article 121 Paragraph 1 of Article 121 of the LOS Convention defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” This definition is derived from Article 10 of the 1958 Convention on the Territorial Sea and the Contiguous Zone5 and Article 10 of the 1956 International Law Commission (ILC) Articles concerning the Law of the Sea,6 and has been applied by the International Court of Justice in a case governed by customary international law.7 The definition makes no distinction on the basis of size, location, or other characteristics; the term “island” includes a rock that is above water at high tide. Paragraph 2 of Article 121 lays out the classic principle that the entitlements of the coastal state in respect of islands are the same as those in respect of other land territory. It provides that “the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” This principle reflects customary international law8 and is derived from Article 10 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, Article 1 of the 1958 Convention on the Continental Shelf,9 and Articles 10 and 67 of the 1956 ILC Articles concerning the Law of the Sea, including the ILC commentary thereon.10 New to the law of the sea are the opening words of paragraph 2 of Article 121, “Except as provided for in paragraph 3,” and the exception in paragraph 3, which states, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” This is not an exception to the definition of an island; indeed, the exception assumes that rocks are included within 5 6

7 8

9 10

Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205. Report of the International Law Commission Covering the Work of Its Eighth Session, [1956] 2 Y.B. Int’l L. Comm’n, art. 10 and commentary, para. 2, at 270, U.N. Doc. A/CN.4/ SER.A/1956/Add.1 (1956). Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 2001 I.C.J. 40, 55, para. 167, 99, para. 195. Id. at 97, para. 185 (“In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law, islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory.”). Convention on the Continental Shelf art. 1, Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 311. 1956 Report of the International Law Commission, supra note 6, art. 10, at 270, art. 67 and commentary, para. 10, at 296, 297.

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the definition. The object of the exception is a limitation on the entitlement to an EEZ and continental shelf under paragraph 2. No exception is made to the entitlement to a territorial sea or contiguous zone under the same paragraph. Substantial attention has been devoted in the literature to what constitutes a rock within the meaning of paragraph 3 of Article 121.11 Less attention has been devoted to what would seem to be an antecedent question, namely the scope of application of the exception. It has been widely assumed that the exception applies to the delimitation of maritime boundaries between coastal states even where the area to be delimited would be subject to coastal state jurisdiction anyway, for example where the area to be delimited is within 200 miles of the coasts of both parties without reference to the insular feature in question. But there is little critical analysis to inform that assumption.12 The purpose of this essay is to engage that issue.

11

12

See Aristotelis B. Alexopolous, The Legal Regime of Uninhabited Islets and Rocks in International Law. The Case of the Greek Seas, 56 Revue Hellénique de Droit International 131 (2003); Jonathan Charney, Rocks that Cannot Sustain Human Habitation, 93 Am. J. Int’l L. 863 (1999); Syméon Karagiannis, Les rochers qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre et le droit de la mer, 29 Revue Belge de Droit International 559 (1996); Robert Kolb, L’interprétation de l’article 121 paragraphe 3, de la Convention de Montego Bay sur le droit de la mer: les rochers qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre, 40 Annuaire Français de Droit International 876, 904 (1994); Barbara Kwiatkowska & Alfred H. A. Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, 21 Netherlands Y.B. Int’l L. 139 (1990); Roberto Lavalle, Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations Under the UN Law of the Sea Convention, 19 Int’l J. Marine & Coastal L. 43 (2004); Antonio Marín Lopez, El régimen de las islas en el actual derecho del mar, 38 Revista Española de Derecho Internacional 151 (1986); Alex G. Oude Elferink, Clarifying Article 121(3) of the Law of the Sea Convention: The Limits Set by the Nature of International Legal Processes, 6 Boundary & Security Bull. 58 (1998); Victor Prescott & Clive Schofield, The Maritime Political Boundaries of the World 57-91 (2d. ed. 2005); Clive Schofield, The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation, in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea 19 (Seoung-Yong Hong & Jon M. Van Dyke eds., 2009); Clive Symmons, The Rockall Dispute Deepens, 35 Int’l & Comp. L.Q. 344 (1986); Jon M. Van Dyke & Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources, 12 Ocean Dev. & Int’l L. 265 (1983). The issue has been raised before the International Court of Justice, but the Court has not addressed it. See Continental Shelf (Libya/Malta), 1985 I.C.J. 13; Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 38; Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2009 I.C.J. para. 187. The issue was raised in a recent case, but the Court declined to address it. See Maritime Delimitation in the Black Sea, 2009 I.C.J. at para. 187 (“[T]he Court does not need to consider whether Serpents’ Island falls under paragraphs 2 or 3 of Article 121 of UNCLOS nor their relevance to this case”). For comments regarding their relevance during oral proceedings, see CR 2008/31, 11-12, paras. 6-10, and CR 2008/33, 21-22, paras. 19-28, http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=95&case=132&code=ru&p3=2.

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II. Liberal or Strict Interpretation? 896

The interpretation and application, including the scope, of a particular provision of a large and complex treaty should be informed by the context, notably the relationship between that provision and the instrument as a whole.13 Is the provision in harmony with the object and purpose of the instrument as a whole, or is it in tension with it? The former situation might suggest a liberal interpretation. With respect to the issue at hand, a liberal interpretation might be rooted in a coherent principle that embraces both paragraph 3 of Article 121 and the remainder of the LOS Convention. Yet any such principle is difficult to discern. Like the 1958 Geneva Conventions and the ILC draft articles, the LOS Convention is drafted on the assumption of the classic rule reflected in paragraph 2 of Article 121 that islands have the same entitlement as other land areas. There is no express or implied reference to the exception in paragraph 3 in any other article, nor any provision indicating that it was even taken into account. The text of what is now paragraph  3 of Article 121 was part of the first Single Negotiating Text introduced by the Chairman of the Second Committee in 1975 at the end of third session of the Third U.N. Conference on the Law of the Sea.14 The Conference records and secondary accounts of the proceedings do not suggest that paragraph 3 was the product of the kind of widespread attention and representative negotiation that produced the texts on baselines and archipelagic states or on coastal state entitlement to an EEZ and continental shelf.15 As a whole, the Second Committee Single Negotiating Text introduced in 1975, which provided the basis for Parts II to X of the LOS Convention, was sufficiently well received that the effective burden of persuasion shifted in subsequent sessions to those who wished to make changes; they needed to demonstrate that the change would improve the prospects for consensus. This frustrated many attempts to change or remove provisions. Negotiations concentrated on key areas, including Articles 74 and 83 on delimitation of the EEZ and continental shelf between states with opposite or adjacent coasts. Most, albeit not all, delegations during the ensuing seven years of intensive 13 14

15

See Vienna Convention on the Law of Treaties art. 31, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969) [hereinafter VCLT]. Ambassador Reynaldo Galindo Pohl of El Salvador served as chair of the Second Committee in 1975. At the 1974 session and at the sessions subsequent to 1975, the chair was held by Ambassador Andrés Aguilar of Venezuela. The careful compilation of the legislative history of Article 121 prepared by the United Nations secretariat fills barely more than a pamphlet and demands no readily visible space on a shelf of the official records of the Third United Nations Conference on the Law of the Sea from 1973 to 1982, the preparatory negotiations in the UN Seabed Committee, and the scholarly assemblage of other documents submitted to “informal” meetings of conference organs and related bodies. See U.N. Office for Ocean Affairs & the Law of the Sea, The Law of the Sea, Régime of Islands, Legislative History of Part VIII (Article 121) of the U.N. Convention on the Law of the Sea, U.N. Pub. Sales No. E.87.V.II (1988) [hereinafter Legislative History of Article 121].

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negotiations appear from the travaux préparatoires and secondary accounts to have paid little if any attention to paragraph 3 of Article 121, especially once the politically sensitive question of islands under foreign occupation or colonial domination was removed from the equation and addressed in a proposed resolution that became Resolution III in the Final Act of the Conference. This background suggests that at a conference dominated by coastal states, including many comprised in whole or in part of islands, paragraph  3 was not widely regarded as important because it was expected to have very limited impact. A common explanation of the purpose of paragraph 3 of Article 121 is to prevent encroachment on the international seabed “Area” and the high seas.16 Yet this explanation finds no resonance in the other provisions of the Convention. The thrust of the Convention as a whole is to expand coastal state jurisdiction over natural resources. To a large majority of coastal states that was and remains one of the Convention’s most important accomplishments. The effect of paragraph 3 of Article 121 is the opposite. It excludes two of the main institutions introduced into the modern law of the sea since World War II, namely the regimes of the continental shelf and the EEZ. In the case of the continental shelf, the exclusion would nullify sovereign rights over the continental shelf previously vested under customary international law and Article 1 of the 1958 Convention on the Continental Shelf.17 This in itself suggests caution in interpreting the exclusion.18 Article 134 of the LOS Convention establishes the scope of Part XI on the international seabed “Area” and elaborates on the precise meaning of the definition of the “Area” as the seabed and subsoil beyond the limits of national jurisdiction. It contains two references to the provisions of Part VI regarding the limits of the continental shelf, and none to any other provision.19 It is reasonable to infer that Part XI was drafted on the assumption that the Area’s landward limit is the seaward limit of the continental shelf specified in Article 76. One effect of the inclusion of both the 200mile limit and the continental margin in the definition of the continental shelf in Article 76 is to permit the International Seabed Authority to concentrate its efforts on 16 17

18

19

See Charney, supra note 11, at 866; Kwiatkowska & Soons, supra note 11, at 144. Articles 1 to 3 of the Convention on the Continental Shelf were regarded even when formulated “as reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf.” North Sea Continental Shelf (FRG./Den.; FRG./Neth.), 1969 I.C.J. 3, 39, para. 63. For many coastal states, relinquishment of vested rights to the continental shelf was nonnegotiable. The very existence of a separate Part VI of the Convention dealing with the regime of the continental shelf both within and beyond 200 miles from the coastal baselines is evidence of the refusal of coastal states to relinquish existing sovereign rights to the continental shelf, even in the context of the establishment of an EEZ in Part V. Thus, the rights of the coastal state in the EEZ with respect to the seabed and subsoil “shall be exercised in accordance with Part VI.” LOS Convention, supra note 1, art. 56, para. 3. Moreover, Part V (which contains extensive provisions on conservation and management of living resources) “does not apply to sedentary species as defined in article 77, paragraph 4” of Part VI. Id. art. 68. Id. art. 1(1), art. 134, paras. 3, 4.

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hard minerals in the “Area” seaward of the limits of the continental shelf so defined, because hydrocarbons are most likely to be found landward of the international seabed “Area.” The text of Part XI and its Annexes, the 1994 Agreement regarding their implementation,20 and the regulations adopted by the Seabed Authority reveal this emphasis on hard minerals, notably including so-called manganese nodules. It is not clear precisely what would happen to the Authority’s regulatory and carefully calibrated decision-making system, both conceived with reference to hard minerals, if a court were to interpret paragraph 3 of Article 121 to thrust a significant hydrocarbon deposit of the continental shelf into the international “Area.” It is also not clear what might be the reaction of the coastal state and others. As for encroachment on the high seas, since high seas freedoms of navigation and communications are preserved in the EEZ by Article 58 of the LOS Convention, the major impact of a rule precluding the establishment of an EEZ would likely be in respect of fishing. Yet the travaux préparatoires and contemporaneous accounts reveal no significant effort by major high seas fishing states to promote paragraph 3 of Article 121.21 In this connection, it might be borne in mind that, as recognized by the U.N. General Assembly, the FAO, and major environmental conferences convened under the auspices of the United Nations, one of the most important challenges in applying the LOS Convention relates to conservation and management of living resources affected by freedom of fishing on the high seas. This problem inspired both the 1995 Implementing Agreement22 and the first arbitration under Part XV of the LOS Convention.23 To the extent that paragraph 3 of Article 121 would convert what is otherwise EEZ into high seas for fishing purposes, its application could exacerbate the current conservation and management problems rather than contribute to their solution. In addition to the general problems of coherence between paragraph 3 of Article 121 and the remainder of the LOS Convention, there are also specific issues.

20

21

22

23

Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, G.A. Res. 48/263, U.N. Doc. A/RES/48/263 (July 28, 1994). Japan, a major high seas fishing state, supported deletion of paragraph 3. See Legislative History of Article 121, supra note 15, at 105. Still it is perhaps no surprise that a recent municipal court case in which the exception articulated in paragraph 3 is invoked and explored at some length by the parties involves a challenge by an arrested fishing vessel to the right of the coastal state to establish an EEZ around small islands. See United States v. Marshalls 201, No. 06-00030 (D. Guam May 8, 2008) (denying motion to dismiss), available at http://www.gud.uscourts.gov/sites/default/files/cv-06-00030_mtd.pdf. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Sept. 8, 1995, U.N. Doc. A/CONF.164/37. Southern Bluefin Tuna Case (Austl. & N.Z. v. Japan), Jurisdiction and Admissibility, 39 I.L.M. 1359 (2000), available at http://www.oceanlaw.net/cases/tuna2a.htm and http:// icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVa l=ViewAnnouncePDF&AnnouncementType=archive&AnnounceNo=7_10.pdf.

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Notwithstanding its title, Article 121 does not constitute the entire regime of islands under the LOS Convention. The other provisions not only treat islands in the same manner as other land territory, but some actually favor them. The normal baseline from which maritime zones are measured is the low-water line along the coast; there is no exclusion for rocks.24 Special baseline rules augment the entitlement of islands.25 The entitlement of archipelagic islands is vastly increased both within and beyond the archipelago.26 Coastal state powers are greater in respect of certain straits formed by an island off the mainland.27 What sense does it make to deny EEZs and continental shelves to certain rocks which, by definition, are above water at high tide, in situations in which the Convention permits the EEZ and continental shelf to be measured from low-tide elevations that never emerge above high tide? Full entitlement to an EEZ and continental shelf would be generated by a low-tide elevation at 11.5 miles from the coast28 or sometimes even much further seaward in the case of straight baselines and archipelagic baselines.29 In the latter case, a baseline segment may be up to 100 or even 125 miles long.30 Should tribunals and states deconstruct straight baselines in areas in which they are drawn to rocks that may come within the meaning of paragraph 3 of Article 121, and then do so only with respect to the EEZ and the continental shelf but not with respect to internal waters, archipelagic waters, the territorial sea and the contiguous zone? Does Article 48 of the LOS Convention permit such deconstruction in respect of archipelagic baselines?31 If not, why treat other straight baselines differently? If straight baselines are not deconstructed, then the effect is to encourage states to draw

24 25

26 27 28 29 30 31

LOS Convention, supra note 1, art. 5. Article 6 of the LOS Convention adds a new rule favoring islands situated on atolls or having fringing reefs. Article 7 not only repeats the traditional rule permitting straight baselines to be drawn that connect fringing islands and enclose the waters landward of them as internal waters, but adds a new rule permitting the coastal state to maintain its baselines in deltas and other areas of unstable coastlines notwithstanding subsequent regression of the low-water line. Articles 7(4), 13, and 47(4) even indicate particular circumstances where the baseline may be drawn to or around a low-tide elevation (an elevation surrounded by and above water at low tide but submerged at high tide). LOS Convention, supra note 1, arts. 47-49. Id. arts. 38(1), 45(1)(a). LOS Convention, supra note 1, art. 13. Id. arts. 7(4), 47(4). Id. art. 47(2). “The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47.” Id. art. 48. “Most commentators are agreed that rocks that are close to the coast of a non-archipelagic state can be used as part of a normal or straight baseline system from which extended maritime claims can be made. It also appears that rocks belonging to an archipelagic state may also be used to generate extended maritime claims.” Prescott & Schofield, supra note 11, at 88-89.

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them in order to avoid the application of paragraph 3 of Article 121. That would appear to be contrary to such object and purpose as one may infer from paragraph 3, since the effect would be to encourage broader sovereignty claims that eliminate all high seas freedoms in the waters enclosed by the baselines and the adjacent territorial sea, not merely freedom of fishing.32 Paragraphs 5 and 6 of Article 76 of the LOS Convention regarding the outer limit of the continental shelf in some circumstances impose a constraining limit of 350 miles from the territorial sea baselines even though the outer edge of the continental margin is further seaward. Some submissions to the Commission on the Limits of the Continental Shelf measure the 350 miles from small islands that are not themselves the sole source of entitlement. Is paragraph 3 of Article 121 relevant to this situation?33 In order to provide stability of expectations with respect to investments in seabed activities and installations, paragraph 9 of Article 76 requires states to deposit charts and information “permanently” describing the outer limits of the continental shelf. In addition, with respect to the continental shelf beyond 200 miles, paragraph 8 provides that the limits established by the coastal state on the basis of the recommendations of the Commission on the Limits of the Continental Shelf “shall be final and binding.” Does a change in an island’s characteristics change this? If not, does the EEZ above the continental shelf disappear anyway? Does paragraph 3 of Article 121 provide a useful framework for addressing the broader implications of rising sea levels? The LOS Convention offers no express guidance on how to reconcile the contradictory policy choices posed by these problems. In this situation, great weight should be accorded the policy choices evident in the Convention as a whole and reflected in paragraph 2 of Article 121, which make no distinctions of size or habitability with regard to entitlement in respect of sovereign territory. The absence of such distinctions is evident in other areas of international law as well. This approach is confirmed by state practice. Apart from the position of the United Kingdom with respect to Rockall (whose practical effect may be more nuanced than appears), instances of states refraining from making EEZ or continental shelf claims because of paragraph 3 of Article 121 are not easily ascertained. As one might expect, there is overwhelming evidence of the application of the basic principle reflected in paragraph 2 of Article 121 and scant if any evidence that state practice suggests anything more than a widespread (albeit not ubiquitous) tendency to ignore or

32 33

See Reisman & Westerman, supra note 2. “The Commission [on the Limits of the Continental Shelf ] is not entitled by the Convention to issue any recommendations with respect to the delineation of baselines from which the breadth of the territorial sea is measured.” Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, para. 3.3.1, Doc. CLCS/11, p.28 (May 13, 1999), available at http://www.un.org/Depts/los/clcs_new/commission_documents.htmGuidelines. On its face this would appear to include the normal baseline on the low-water line of an insular feature to which paragraph 3 of Article 121 of the Convention might apply, or straight baseline segments drawn to such a feature. In respect of that matter, see infra note 34.

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refrain from applying the exception introduced by paragraph 3 of that article in the establishment of EEZs and continental shelves. While much attention has been drawn to objections by China and the Republic of Korea to Japan’s submission in respect of Oki-no-Tori Shima,34 submissions to the Commission on the Limits of the Continental Shelf pursuant to paragraph 8 of Article 76, and the general absence of objection by other states to those submissions on grounds of paragraph 3 of Article 121, confirm the prevailing practice of affording small islands full effect in accordance with the principle set forth in paragraph 2 of Article 121 of the LOS Convention. Small islands, often at some distance from the mainland, play different roles in many of these submissions. The maps, coordinates, and descriptions of these submissions made public by the Secretary-General of the United Nations pursuant to the Commission’s rules indicate: – parts of the continental shelf that are not required to be submitted to the Commission because they are within 200 miles of small islands; – areas within the outer limits of the continental margin that satisfy the constraints of paragraphs 5 and 6 of Article 76 because they are within 350 miles of small islands; and – places where small islands alone form the basis of title to the continental shelf beyond 200 miles. An example of the last of these situations can be found in Australia’s submission of several areas to the Commission in late 2004. One of the areas submitted was in respect of the Australian Territory of Heard Island and McDonald Islands. These islands are some 4,000 kilometers southwest of Perth; they are small, uninhabited, and subject to harsh climatic conditions.35 The area of continental shelf beyond 200 miles from the islands was illustrated on a map and described by Australia as exceeding one million square kilometers.36 34

35 36

See http://www.un.org/Depts/los/clcs_new/submissions_files/submission_jpn.htm (submission of Japan and reaction of states to the submission). On the understanding that there would be no prejudice to delimitation of their maritime boundaries with Japan in the areas submitted, Palau and the United States expressly indicated no objection to Japan’s submission. In Palau’s case Japan’s continental shelf would extend from Oki-no-Tori Shima. Id. The Commission on the Limits of the Continental Shelf “discussed the notes verbales that had been received from the People’s Republic of China, the Republic of Korea and Japan, with a view to providing guidance to the subcommission to be established to consider the submission. The Commission, acknowledging that it has no role on matters relating to the legal interpretation of article 121 of the Convention, decided that it would revert to the matter when it was ready to proceed with the establishment of the subcommission.” Statement by the Chairman of the Commission on the Limits of the Continental Shelf, 23rd Session, para. 59, Doc. CLCS/62, p. 12 (Apr. 20, 2009), available at http://daccessdds.un.org/doc/UNDOC/GEN/N09/307/58/PDF/N0930758.pdf?OpenElement. See http://www.heardisland.aq (maintained by the Australian Government). See Continental Shelf Submission of Australia, Executive Summary, AUS-DOC-ES, 1720, available at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_ aus.htm.

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While the islands are larger than what many observers would regard as rocks, that might not be dispositive were governments inclined to a liberal teleological interpretation of paragraph 3 of Article 121. The evidence suggests that they are not so inclined. Communications regarding Australia’s submission were received by the Secretary-General from France, Germany, India, Japan, the Netherlands, the Russian Federation, Timor-Leste, and the United States.37 While several communications raised questions regarding Australia’s entitlement in respect of Antarctica, no objection to its entitlement to a continental shelf in respect of these islands is apparent in any of the communications.38 Paragraph 2 of Article 121 identifies paragraph 3 as an exception to the general rule. That would be evident from the history and structure of the customary and conventional law of the sea even if the text did not expressly so state. Paragraph 3 has no coherent relationship to the remainder of the LOS Convention and scant manifestation in state practice. In this situation, the rule that a provision should be interpreted in light of its textual context is of signal importance lest we exacerbate the tension with the evident object and purpose of the Convention as a whole. The exception in paragraph 3 should be strictly construed. The burden of persuasion should be borne by those advocating its application. The established rule in paragraph 2 of Article 121 should govern unless it is clearly demonstrated that the exception in paragraph 3 must be applied. III. Relevance to Delimitation Much of the debate over application of paragraph 3 of Article 121 has arisen in the context of delimitation of the EEZ and continental shelf between states with opposite or adjacent coasts. This debate assumes that if the island is not a rock with the characteristics described in paragraph 3, it will have substantial influence on the location of the maritime boundary. That assumption may have been strengthened by the emergence, in the International Court of Justice and other tribunals, of a preference for a delimitation methodology pursuant to which a provisional equidistance line is first drawn and is then adjusted, if necessary, in order to avoid a resultant inequity. This may tempt lawyers to place greater pressure on the question of how to draw the provisional equidistance line in the first place. For example, although an equidistance

37 38

See http://www.un.org/Depts/los/clcs_new/submissions_files/submission_aus.htm (submission of Australia and reaction of states to the submission). Subject to certain technical problems of measurement, the Commission recommended that Australia proceed to establish the outer limits of its continental shelf off these islands. See Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in Regard to the Submission Made by Australia on 15 November 2004. Recommendations Adopted by CLCS on 9 April 2008, at 11-15, http://www. un.org/Depts/los/clcs_new/submissions_files/aus04/aus_summary_of_recommendations.pdf.

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line is defined as a line measured from the territorial sea baselines,39 and those baselines follow or connect both continental and insular territory without distinction as to rocks, it has been argued that an equidistance line should not be measured with reference to a rock where paragraph 3 of Article 121 applies. Be that as it may, the law of maritime delimitation does not necessarily support the underlying assumption that a rock, islet or other small island will have substantial influence on the location of the maritime boundary. In its first delimitation decision, the International Court of Justice acknowledged the possibility of “ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means” than an equidistance line.40 Rocks, islets and other islands can be, and have been, ignored or accorded reduced effect where they are perceived to distort the location of a maritime boundary.41 That of course does not necessarily mean that the entitlement argument would, or should, be abandoned; it may be employed anyway, if only for tactical reasons. So long as paragraph 3 of Article 121 is regarded as potentially relevant, governments may press it both in negotiations and in litigation regarding maritime boundaries. Because maritime boundary disputes generally relate only to areas of overlapping claims, the question of whether an island is a rock described in paragraph 3 of Article 121 is likely to arise in a maritime boundary dispute only if paragraph 3 is construed to apply to an area that is, in any event, within coastal state jurisdiction even if paragraph 3 is applicable. It is by no means clear that this construction is warranted. If the object of the exception in paragraph 3 of Article 121 is to prevent encroachment on the international seabed “Area” or the high seas,42 then its application to an 39

40 41

42

An equidistance line is a line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured. See LOS Convention, supra note 1, art. 15; Convention on the Territorial Sea and the Contiguous Zone, supra note 5, art. 12; Convention on the Continental Shelf, supra note 9, art. 6. North Sea Continental Shelf (FRG./Den.; FRG./Neth.), 1969 I.C.J. 3, 36, para. 57. See Delimitation of the Continental Shelf (U.K./Fr.), 18 I.L.M. 397 (1979) (Arbitral Award of June 30, 1977); Continental Shelf (Tunisia/Libya), 1982 I.C.J. 18; Continental Shelf (Libya/Malta), 1985 I.C.J. 13; Delimitation of Maritime Areas (St. Pierre and Miquelon) (Can./Fr.), 31 I.L.M. 1145 (1992) (Arbitral Award of June 10, 1992); Eritrea/Yemen Arbitration (Phase II, Maritime Delimitation, Dec. 17, 1999), http://www.pca-cpa.org/showpage. asp?pag_id=1160; Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 2001 I.C.J. 40; Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2009 I.C.J. For a review of state practice, see Derek Bowett, Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations, in 1 International Maritime Boundaries 131 (Jonathan Charney & Lewis M. Alexander eds., 1993), and Victor Prescott & Gillian Triggs, Islands and Rocks and their Role in Maritime Delimitation, in 5 International Maritime Boundaries 3245 (David A. Colson & Robert W. Smith eds., 2005). See supra note 16. Reference is sometimes made in this connection to the fact that the area of a circle with a radius of 200 miles is over 125,000 square miles. That assumes that the feature generating jurisdiction—the putative rock—is remote from other land areas. The assumption does not reflect the fact that most rocks are in the vicinity of the

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area that in any event is not part of the international seabed “Area” or the high seas would be without object. That being the case, application of paragraph 3 of Article 121 to an area that is otherwise within the limits of coastal state jurisdiction would not necessarily comport with the fundamental rule of treaty interpretation that a text is to be interpreted in light of its object and purpose.43 What if the area to be delimited is within the limits of coastal state jurisdiction of both parties even without reference to the island in question? A typical example would be delimitation of an area that is within 200 miles of the coastal baselines of both parties even if the insular feature is ignored. There are strong reasons of logic, textual coherence, precedent, and policy for concluding that paragraph  3 of Article121 is not relevant in this situation.44 What is the point of applying a rule of entitlement that denies the status of EEZ and continental shelf to areas that have that status in any event? Its only conceivable function in that situation is not as a rule of entitlement, but rather as an a priori rule of delimitation. Yet it is evident from both the text and structure of the LOS Convention that paragraph 3 is a rule of entitlement, not a rule of delimitation. The text of Article 121 itself suggests that paragraph 3 is not a rule of delimitation. The same area, namely the area beyond the territorial sea but within 24 miles of the coastal baselines, is treated differently with respect to the contiguous zone than with respect to the EEZ and the continental shelf; rocks referred to in paragraph 3 are not deprived of a contiguous zone, but are deprived of an EEZ and continental shelf. As a rule of entitlement, this entails no contradiction. But the distinction is incoherent as a rule of delimitation.45

43 44

45

mainland and does not reflect the coastal relationships in typical maritime delimitation situations. See VCLT, supra note 13, art. 31, para. 1. Many of the same considerations also may be pertinent where an area of overlapping claims is within the limits of coastal state jurisdiction of only one party without reference to the island in question and the entitlement of the other party is exclusively in respect of the island. No encroachment on the international seabed “Area” or the high seas would arise in this situation, unless the island in question were so far offshore that seaward projections of its EEZ or continental shelf that overlap those of the other party must traverse areas that are seaward of the maximum limits of coastal state jurisdiction of the other party and any third states. If they do, then an issue under paragraph 3 of Article 121 may be squarely posed with respect to the right to traverse those areas. If not, then the outcome would depend on whether paragraph 3 is construed to apply only to areas where there would be encroachment on the international seabed “Area” or the high seas, or is construed to apply somewhat more broadly, namely to areas where the entitlement of a state is exclusively in respect of the island in question. Unlike the 1958 Convention on the Territorial Sea and the Contiguous Zone, the LOS Convention contains no delimitation provision in respect of the contiguous zone. One is left to assume either (1) that in practice states will draw a boundary, normally a “single maritime boundary” delimitating the contiguous zone as well as the EEZ and continental shelf within the relevant area, or (2) that the contiguous zone is not to be delimited and that the contiguous zone of one state may overlap the contiguous zone, EEZ and

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Articles 74 and 83 of the LOS Convention respectively address delimitation of the EEZ and the continental shelf between states with opposite or adjacent coasts. These articles were not completed until near the end of the Third U.N. Conference on the Law of the Sea. As is patently evident from their text, the negotiators were unable to agree on any specific rule of delimitation, let alone an a priori rule.46 One of the reasons that states could not agree on a precise delimitation rule in Articles 74 and 83 is that those with small islands in delimitation areas were more favorable to a reference to equidistance than were their neighbors. Unlike the more flexible provisions of Articles 74 and 83 on delimitation, paragraph 3 of Article 121 denies all entitlement to an EEZ and continental shelf. If paragraph 3 is regarded as potentially relevant to a delimitation dispute, it may complicate or inhibit negotiated accommodation of differences regarding maritime boundaries. It also may encourage (and arguably has encouraged) expenditure on physical demonstration of the capacity to sustain human habitation or economic life; that in turn may advantage wealthier states or prompt otherwise unnecessary environmental disruption in tension with the objectives of Part XII of the LOS Convention.47 Because paragraph 3 of Article 121 is an entitlement provision, any interpretation or application of that paragraph in a delimitation case could have implications not only in other delimitation cases, but in situations involving entitlement in principle where the issues and the consequences are very different. This in itself is a strong reason for distancing rules of delimitation from rules of entitlement. The International Court of Justice distinguished between rules of entitlement and rules of delimitation in the 1958 Convention on the Continental Shelf. Article 1 of that Convention defines the continental shelf and includes the seabed and subsoil of submarine areas adjacent to the coasts of islands within the definition. Article 2 provides that the coastal state exercises sovereign rights over the continental shelf for the purpose of exploration and exploitation of its natural resources. Having previously observed that the “appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries,”48 the Court stated:

46

continental shelf of another. The former hypothesis renders paragraph 3 of Article 121 incoherent as a rule of delimitation. The latter hypothesis seems increasingly implausible in light of the extension of the contiguous zone concept to embrace control of objects of an archeological or historical nature on or under the seabed. See LOS Convention, supra note 1, art. 303, para. 2; Convention on the Protection of the Underwater Cultural Heritage art. 8, Nov. 2, 2001, http://unesdoc.unesco.org/images/0015/001528/152883E.pdf. Article 74, paragraph 1, of the LOS Convention provides: The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

47 48

Article 83, paragraph 1, is identical except that it refers to the continental shelf rather than the EEZ. See LOS Convention, supra note 1, arts. 192, 194, paras. 3(a) and 5. North Sea Continental Shelf (FRG./Den.; FRG./Neth.), 1969 I.C.J. 3, 32, para. 46.

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Articles 1 and 2 of the Geneva Convention do not appear to have any direct connection with inter-State delimitation as such. Article 1 is concerned only with the outer, seaward, limit of the shelf generally, not with boundaries between the shelf areas of opposite or adjacent States. Article 2 is equally not concerned with such boundaries.49

906

In this regard it may be noted that Article 76 of the LOS Convention, which now contains the basic rules regarding entitlement to the continental shelf and its outer limits, expressly states that its provisions “are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.”50 IV. Conclusion A prudent interpretation would limit the exception for rocks to marine areas where title itself is at issue, namely those areas where the putative rock is the sole basis of title to an EEZ and continental shelf. In other areas, the basic principle of paragraph 2 of Article 121 would apply: the law of maritime delimitation, not paragraph 3 of Article 121, would determine whether, and if so to what extent, a maritime boundary should be measured from a rock, islet, or other small island in light of its impact on the maritime boundary with reference to the coastal geography as a whole in the area to be delimited.51 The law of maritime delimitation offers substantial guidance as to the relevant circumstances and growing precedent as to how to evaluate them in order to reach an equitable result. Both for governments and for the tribunals before which they appear, that is a more productive and rational inquiry focused on the object of the problem than the prospect of endless haggling about what is a rock and what is habitability. And to what end? If the issue is really about how to draw a provisional equidistance line, then there is the additional difficulty that the advantages of simplicity and objectivity afforded by that line will prove elusive if one must first address the indeterminacies of paragraph 3 of Article 121. At that point the virtues if not the very logic of modern delimitation methodology evanesce.

49 50 51

Id. at 40, para. 67. LOS Convention, supra note 1, art. 76, para. 10. See supra notes 40, 41.

Chapter 45 The Future of International Water Law: Regional Approaches to Shared Watercourses? Salman M.A. Salman*

On May 21, 1997, the United Nations General Assembly (UNGA) adopted, by a majority exceeding one hundred members, the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (the Watercourses Convention, or the Convention).1 The adoption of the Convention was hailed by a large segment of scholars and practitioners specializing or working on water resources management as a major milestone in the codification and progressive development of international water law. Indeed, the UNGA decision was a culmination of extensive work by the International Law Commission (ILC) that spanned from 1971 to 1994, as well as deliberations by the Sixth Committee and the General Assembly thereafter and until May 1997. Furthermore, the work of the ILC itself was a continuation of earlier efforts by the UNGA, dating back to the 1950s, to compile data on, and try to address the complex and intricate issues related to international watercourses. In parallel with the work of the United Nations and the ILC, two scholarly non-governmental organizations (NGOs), namely the Institute of International Law (IIL) and the International Law Association (ILA) provided significant contributions to the field of international water law through their resolutions and declarations, and the commentaries thereon. As such, the adoption of the Watercourses Convention was seen by those scholars and practitioners as the beginning of a new era for the cooperative management, sharing and protection of international watercourses, governed for the first time by the provisions of an international convention. However, thirteen years after its adoption, the Convention has yet to obtain the necessary number of instruments of ratification to enable it to enter into force and effect. As of June 2010, only nineteen countries have ratified or acceded to the Convention, far less than the thirty-five instruments needed for that purpose. Given the high expectations and optimism expressed by many water resources specialists when the Convention was adopted, there has been a marked disappointment at the failure * 1

The views expressed in this Essay are those of the author and do not necessarily reflect the views of the World Bank. See G.A. Res. 51/229, U.N. Doc. A/RES/51/229 May 21, 1997). For the text of the Convention, see 36 I.L.M. 700 (1997).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 907-928.

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of states to become parties to the Convention. That disappointment has grown as time passes, with little or no action towards ratification or accession by the states that voted for the Convention. This situation is now raising considerable concerns that the momentum might have been lost, and that the Convention may not enter into force and effect soon. Note was taken, by way of comparison, of the length of the period that it has taken many other conventions to enter into force. Particular note is taken of the United Nations Convention on the Law of the Sea (UNCLOS), which is a more detailed and complex instrument, spanning over more than 300 articles. The UNCLOS opened for signature on December 10, 1982, and entered into force on November 16, 1994, twelve years after its adoption, when sixty states completed the ratification/accession process.2 That number is almost double the number of states needed for entry into force of the Watercourses Convention. Nonetheless, this Essay argues that despite the failure of states to follow-up their vote at the UNGA with signature and ratification of, or accession to the Convention, the Convention has been, since its adoption in 1997, the principal reference point for international water law, and will continue to be so. Indeed, it has, by and large, codified and progressively developed existing and emerging principles of customary international water law. It has also provided a framework that states would use to develop regional treaties and agreements on their shared watercourses, taking into account the particular characteristics of the watercourse in question, and their interests, concerns and needs. The Essay will also argue that the wide range of endorsements that the Convention has received underscores the above thesis. I. The Road to the Watercourses Convention The UN started paying attention to the issue of international rivers in the late 1950s. In 1959, almost forty years before it adopted the Watercourses Convention, the UNGA issued a resolution calling for initiation of “preliminary studies on the legal problems relating to the utilization and use of international rivers with a view of determining whether the subject was appropriate for codification.”3 The Resolution requested the Secretary-General of the UN to prepare and circulate to the member states a report containing: (i) information provided by member states regarding their laws and legislation in force on the matter; (ii) a summary of existing bilateral and multilateral treaties; (iii) a summary of decisions of tribunals, including arbitral awards; and (iv) a survey of studies made by non-governmental organizations concerned with international law. Consequently, a report entitled “Legal Problems Relating to the Utilization of International Rivers” was completed and presented to the UNGA in 1963.4 The Report included detailed information provided by states on their legislation on international waters, and the bilateral and multilateral treaties on such waters. It also 2 3 4

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 396. See G.A. Res. 1401 (XIV) (Nov. 21, 1959). See United Nations, Legal Problems Relating to the Utilization and Use of International Rivers, Report of the Secretary General, A/5409, April 15, 1963 [hereinafter “the Report”].

45 Salman M.A. Salman, The Future of International Water Law

included a compilation of the judicial and arbitral decisions, as well as the rules and resolutions issued by the IIL and ILA on international waters. Although the Report was widely circulated and discussed, it took seven more years before the UNGA would return to the topic of international watercourses. On December 8, 1970, the UNGA adopted Resolution 2669, asking the ILC to “take up the study of the law of the non-navigational uses of international watercourses with a view to its progressive development and codification.”5 The Resolution also requested the Secretary-General of the United Nations to continue the studies initiated under Resolution 1401 in order to prepare a supplementary report on the legal problems relating to the utilization and use of international watercourses. Seven more years would elapse before the Secretary-General would complete and submit a report entitled “Register of International River Basins”6 showing shared rivers by region, and indicating that such rivers totaled 214 world-wide. The Register was issued in connection with the United Nations Water Conference that was held in March 1977, in Mar del Plata, Argentina, and which was the first global meeting to address exclusively water resources issues. Shared watercourses were widely and extensively debated and one of the recommendations of the Conference directed that the work of the ILC on the Law of the Non-Navigational Uses of International Watercourses be given higher priority and coordinated with other international bodies dealing with the same topic. The Conference also recommended that, in the absence of bilateral and multilateral agreements, member states should continue to apply generally accepted principles of international law in the use, development, and management of shared water resources, and should take note of the useful work of the non-governmental and other expert bodies on international water law.7 Pursuant to Resolution 2669 of 1970, the ILC started working on the topic of international watercourses in early 1971. The task was clearly a complex one. It took more than twenty-three years, five rapporteurs, and fifteen reports before the final draft articles of the Convention were agreed upon by the ILC.8 A number of issues proved controversial and complex even for the members of the ILC itself. Such issues included definition of the term “international watercourses;” transboundary groundwater; the status of existing watercourses agreements vis-à-vis the Convention; the relationship between the principle of equitable and reasonable utilization and the obligation not to cause significant harm; and the procedures and mechanisms for dispute settlement. Differences on those issues were finally resolved, and a draft Convention was

5 6 7 8

See G.A. Res. 2669 (XXV) (Dec. 8, 1970). See United Nations, Register of International River Basins, Report of the Secretary General, E/C.7/71 (Mar. 11, 1977). See United Nations, Report of the United Nations Water Conference, Mar del Plata, March 14-15, 1977, Sales No. E.77.11.A.12, at 53 (1977). For the full list of the ILC rapporteurs, and the reports on the topic and the dates on which they were issued, see 2 Arthur Watts, The International Law Commission 1949-98, at 1335 (1999).

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agreed upon by the ILC and submitted to the General Assembly in 1994.9 That draft Convention was subsequently deliberated by the Sixth Committee of the General Assembly (the Legal Committee), convened as a Working Group of the Whole (the Working Group). Thereafter, on May 21, 1997, following lengthy discussion of the ILC draft, as amended by the Working Group, the UNGA adopted the Convention. One hundred and three countries voted for the Convention, and only three countries opposed it,10 with twenty-seven abstentions; while fifty-two countries did not participate in the vote. Subsequent to the vote, Nigeria and Fiji (which did not vote), and Belgium (which abstained), informed the Secretariat of the General Assembly that they had intended to vote for the Convention. This would have brought the number of the countries voting for the Convention to 106, and decreased the abstentions to 26.11 In parallel with the work of the United Nations and ILC, the IIL and the ILA were actively involved with international watercourses. Actually, both institutions commenced their work on this subject long before the ILC. The IIL issued its first set of rules on international rivers entitled “International Regulations Regarding the Use of International Watercourses for Purposes Other than Navigation” (known also as the “Madrid Declaration”) in 1911.12 Those regulations were the first set of rules in the field. They were followed 50 years later by the Resolution on the “Utilization of Non-Maritime International Waters (Except for Navigation)” (known as the Salzburg Resolution).13 In 1979 the IIL issued a resolution entitled “Pollution of Rivers and Lakes and International Law” (the Athens Resolution),14 and in 1997 it issued three resolutions on the Environment.15 The term “environment” is defined in the first resolution to include “abiotic and biotic natural resources, in particular air, water, soil, fauna and flora, as well as interaction between these factors.” The first resolution also states that international law would determine the basic models and minimum rules required for protection of the environment. Generally speaking, the IIL work confirmed the rights of states to exploit their natural resources but subjected that right to their obligation not to cause harm to other riparians, with little emphasis on the principle of equitable and reasonable utilization.

9 10 11 12 13 14

15

See 1994 Yearbook of the International Law Commission, Volume II, Part Two, 88 (1997). Those countries were China, Burundi and Turkey. See supra note 1. See supra note 1. See 24 Annuaire de l’Institut de Droit International 365 (1911). See 49 Annuaire de I’Institut de Droit International 370 (1961); see also 56 Am. J. Int’l L. 737 (1962). See 58 Annuaire de l’Institut de Droit International 196 (1979); see also 1 Harald Hohmann, Basic Documents of International Environmental Law 256 (1992). The resolutions are entitled: “The Environment,” “Responsibility and Liability for Environmental Damage under International Law,” and “Procedures.” See 67-1 Annuaire de l’Institut de Droit International 219 (1997).

45 Salman M.A. Salman, The Future of International Water Law

Although the ILA’s deliberations on international waters started relatively later than the IIL, its work has been more extensive and frequent. In 1956, the ILA issued its first set of principles entitled “A Statement of Principles upon which to Base Rules of Law Concerning the Uses of International Rivers,” also known as the “Dubrovnik Statement.”16 Those principles were followed by new rules almost every other year, culminating in the famous Helsinki Rules on the Uses of the Waters of International Rivers issued in 1966.17 The Helsinki Rules were the first set of comprehensive and authoritative principles dealing with international watercourses to be issued, and they continued to be so until the Watercourses Convention was adopted thirty years later, in 1997. They covered a wide spectrum of issues, including both navigational and non-navigational. The Helsinki Rules established the principle of equitable and reasonable utilization as the guiding principle of international water law, and laid down the widely quoted factors for determining the equitable and reasonable utilization for the watercourse states.18 The Helsinki Rules have been widely accepted by both downstream as well as upstream riparians, and are considered by many experts in the field as representing customary international law.19 16

17 18

See ILA, Report of the Forty-Seventh Conference (Dubrovnik 1956), at 241. The intention of the ILA was not to state rules of law, but only to lay down principles on which rules of law could be formulated. See Charles Bourne, The International Law Association’s Contribution to International Water Resources Law, 36 Nat. Resources J. 155, 159-60 (1996). See ILA, Report of the Fifty-Second Conference 486 (Helsinki 1966) [hereinafter the Helsinki Rules]. Article V of the Helsinki Rules states that the relevant factors to be considered include, but are not limited to: (a) (b) (c) (d) (e) (f ) (g) (h) (i) (j) (k)

19

the geography of the basin, including in particular the extent of the drainage area in the territory of each basin state; the hydrology of the basin, including in particular the contribution of water by each basin state; the climate affecting the basin; the past utilization of the waters of the basin, including in particular existing utilization; the economic and social needs of each basin state; the population dependent on the waters of the basin in each basin state; the comparative costs of alternative means of satisfying the economic and social needs of each basin state; the availability of other resources; the avoidance of unnecessary waste in the utilization of waters of the basin; the practicability of compensation to one or more of the co-basin states as a means of adjusting conflicts among uses; and the degree to which the needs of a basin state may be satisfied, without causing substantial injury to a co-basin state.

Paragraph 3 of Article V states that the weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. See Helsinki Rules, supra note 17. See Bourne, supra note 16.

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The ILA’s work did not taper off after the issuance of the Helsinki Rules. Many other rules on various areas related to international watercourses were issued thereafter, including the 1986 Seoul Rules on transboundary groundwater.20 Thus, while the ILC was working on the law of international watercourses, a large body of legal literature was being developed by those two organizations. Indeed, the Convention is based largely on the ILA work, particularly the Helsinki Rules, and to some extent on the work of the IIL. The Convention itself recognizes “the valuable contribution of international organizations, both governmental and non-governmental, to the codification and progressive development of international law in this field.”21 In addition, the Convention also recalled the existing bilateral and multilateral agreements regarding the non-navigational uses of international watercourses. Hence, the adoption of the Watercourses Convention by the UNGA should be seen as a culmination of the lengthy process that started with the work of the IIL and the ILA, as well as the UNGA, and ended with the successful completion of the ILC draft Convention. The adoption has no doubt heightened the expectations that at long last the world community was able to agree on an international legal instrument regulating the use, sharing and protection of international watercourses, including principles for avoidance and resolution of international water disputes. A wide dissemination of the Convention and its provisions has been undertaken at the large number of international water conferences held since 1997. It has also been facilitated by the tri-annual global water forum that started with the First World Water Forum held in Marrakesh, Morocco, in March 1997. The Convention was one of the main topics of the Second World Water Forum held in The Hague, the Netherlands, in 2000, and the third one held in Kyoto, Japan, in 2003, as well as the subsequent ones in Mexico and Turkey in 2006 and 2009, respectively.22 II. An Overview of the Provisions of the Watercourses Convention The Convention is a framework convention that aims at ensuring the utilization, development, conservation, management and protection of international watercourses, and promoting optimal and sustainable utilization thereof for present and future generations. As a framework convention, it addresses the main basic procedural aspects and some substantive ones, and leaves the details for the riparian states to complement in agreements that would take into account the specific characteristics 20

21 22

See Seoul Rules, International Law Association, Report of the Sixty-Second Conference (Seoul, 1986) at 238. By the late 1980s and early 1990s it became clear to the ILA that the rules it had adopted were expanding, and provisions governing the same issue may be scattered in more than one instrument. Accordingly, the ILA decided to consolidate those rules in one instrument. The Berlin Rules, issued in 2004, include such consolidated rules. See ILA, Report of the Seventy-First Conference 334 (Berlin 2004). Preamble to the Convention, Recital X. For more details on each of the five world water forums, see the website of the World Water Council at http://www.worldwatercouncil.org/. The World Water Council is the institution that organizes the forum, in collaboration with the host country.

45 Salman M.A. Salman, The Future of International Water Law

of the watercourse in question. The main areas that the Convention addresses include the definition of the term “watercourse;” watercourses agreements; equitable and reasonable utilization and the obligation not to cause significant harm; notification for planned measures; protection, preservation and management; and dispute settlement. Article 1(2) of the Convention asserts that the uses of international watercourses for navigation are not within the scope of the Convention, except insofar as other uses affect navigation or are affected by navigation; hence the title of “nonnavigational uses.” The Convention defines the term “international watercourse” to mean “a watercourse, parts of which are situated in different states.” It defines the term “watercourse” to include both “surface water and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.” This definition includes only groundwater that is connected to surface water. It does not include transboundary aquifers that do not contribute water to, or receive water from, surface waters. Realizing this lacuna, the ILC issued a separate resolution recommending that other types of groundwater be governed by the same rules laid down in the Convention.23 Watercourse agreements are dealt with in Article 3 of the Convention. The Article indicates that the Convention shall not affect the rights or obligations of a watercourse state arising from agreements that are in force. However, the Article asks the parties to consider, where necessary, harmonizing such agreements with the basic principles of the Convention. Article 3 also allows watercourse states to enter into agreements, which apply and adjust the provisions of the Convention to the characteristics and uses of a particular international watercourse. Furthermore, the Article states that when some, but not all, watercourse states to a particular international watercourse are parties to an agreement, nothing in such an agreement would affect the rights or obligations under the Convention of watercourse states that are not parties to such an agreement. The Convention embraces the principle of equitable and reasonable utilization, and lays down in Article 6 certain factors and circumstances, by and large, similar to those of the Helsinki Rules24 that should be taken into account for determining the equitable and reasonable utilization for each of the riparian states. Article 6(1) of the Convention states that utilization of an international watercourse in an equitable and reasonable manner within the meaning of Article 5 requires taking into account all relevant factors and circumstances, including: (a) geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character; (b) the social and economic needs of the watercourse states concerned; (c) the population depen23

24

Resolution on Confined Transboundary Groundwater, supra note 9, at 135; see also Stephen McCaffrey, International Groundwater Law: Evolution and Context, in Groundwater: Legal and Policy Perspectives, World Bank Technical Paper No. 456, 139 (Salman M.A. Salman ed., 1999); Raj Krishna & Salman M.A. Salman, International Groundwater Law and the World Bank Policy for Projects on Transboundary Groundwater, in id. at 163. See supra note 18.

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dent on the watercourse in the watercourse state; (d) the effects of the use or uses of the watercourse in one watercourse state on other watercourse states; (e) existing and potential uses of the watercourse; (f ) conservation, protection, development and economy of the water resources of the watercourse and the cost of measures taken to that effect; and (g) the availability of alternatives, of comparable value, to a particular planned or existing use. In this connection, the Convention follows the same approach adopted 30 years earlier by the Helsinki Rules, which established, as stated earlier, the principle of equitable and reasonable utilization as the guiding principle for international water law. In comparing the above factors with those under the Helsinki Rules, it can be concluded that the factors under the Watercourses Convention are based largely on those of the Helsinki Rules. In line with Article V of the Helsinki Rules, Article 6 of the Convention states that the weight to be given to each factor is to be determined by its importance in comparison with that of other relevant factors. Similarly, Article 6 clarifies that in determining what constitutes reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole. The Convention also deals in Article 7 with the obligation not to cause significant harm, and requires the watercourse states to take all appropriate measures to prevent the causing of significant harm to other watercourse states. Agreement on which of the two rules (equitable and reasonable utilization, or the obligation not to cause significant harm) takes priority over the other proved quite difficult, and the issue occupied the ILC throughout its work on the Convention. Each rapporteur dealt with the issue differently, equating the two principles, or subordinating one principle to the other.25 The issue was later discussed in the Working Group where sharp differences between the riparian states on those two principles also surfaced. It is worth clarifying in this connection that lower riparians tend, generally, to favor the no-harm rule, as it protects existing uses against impacts resulting from activities undertaken by upstream states. Conversely, upper riparians tend, by and large, to favor the principle of equitable and reasonable utilization, because it provides more scope for states to utilize their share of the watercourse for activities that may impact on downstream states. After a lengthy debate in the Working Group, a compromise regarding the relationship between the two principles was reached. The compromise addressed Articles 5 and 6 (equitable and reasonable utilization) and Article 7 (obligation not to cause significant harm). The new language of Article 7 requires the state that causes significant harm to take measures to eliminate or mitigate such harm “having due regard to articles 5 and 6.”26 25 26

See generally Stephen McCaffrey, The Law of International Watercourses (2007). See Lucius Caflisch, Regulation of the Uses of International Watercourses, in International Watercourses – Enhancing Cooperation and Managing Conflict, World Bank Technical Paper No. 414, at 13-15 (Salman M.A. Salman & Laurence Boisson de Chazournes eds., 1998) [hereinafter International Watercourses]. Note, in particular, Caflisch’s statement that “The new formula was considered by a number of lower riparians to be sufficiently neutral not to suggest a subordination of the no-harm

45 Salman M.A. Salman, The Future of International Water Law

However, notwithstanding this compromise language, the prevailing view is that the Convention has subordinated the obligation not to cause significant harm to the principle of equitable and reasonable utilization. This conclusion is based on a close reading of Articles 5, 6 and 7 of the Convention. The factors enumerated in Article 6 for determining equitable and reasonable utilization include (i) “the effects of the use or uses of the watercourse in one Watercourse State on other Watercourse States,” and (ii) “existing and potential uses of the watercourse.” Those same factors will also need to be used, with other factors, to determine whether significant harm is caused to another riparian, because harm can be caused by affecting the water flow or availability to other riparians, and thereby impacting their existing uses. Moreover, Article 7(1) of the Convention obliges watercourse states, when utilizing an international watercourse in their territory, to take all appropriate measures to prevent the causing of significant harm to other watercourse states. When significant harm nevertheless is caused to another watercourse state, Article 7(2) of the Convention requires the state causing the harm to “take all appropriate measures, having due regard to Articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm, and where appropriate, to discuss the question of compensation.” As noted above, Articles 5 and 6 of the Convention deal with equitable and reasonable utilization. As such, Article 7(2) requires giving due regard to the principle of equitable and reasonable utilization when significant harm has nevertheless been caused to another watercourse state. The paragraph also indicates that the causing of harm may be tolerated in certain cases such as when the possibility of compensation may be considered. Accordingly, a careful reading of Articles 5, 6 and 7 of the Convention should lead to the conclusion that the obligation not to cause harm has indeed been subordinated to the principle of equitable and reasonable utilization. Hence, it can be concluded that, similar to the Helsinki Rules, the principle of equitable and reasonable utilization is the fundamental and guiding principle of the Watercourses Convention.27 This conclusion should, however, not mean that the Convention is biased in favor of upstream riparians. The principle of equitable and reasonable utilization is based on the equality of all the riparian states, and requires taking into account existing uses that may be affected.28 The view that the guiding principle of the Convention is equitable and reasonable utilization has been endorsed by the International Court of Justice (ICJ) in the

27

28

rule to the principle of equitable and reasonable utilization. A number of upper riparians thought just the contrary, namely that, that formula was strong enough to support the idea of such a subordination.” It should be added that there are authors in this field who believe that the Convention treats both principles as equal. See Attila Tanzi & Maurizio Arcari, The United Nations Convention on the Law of International Watercourses (2001). See Salman M.A. Salman, The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law, 23 Int’l J. Water Resources Management 625-40 (2007).

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Gabčíkovo-Nagymaros case.29 The case was decided in September 1997, four months after the Convention was adopted by the UNGA. In that case the ICJ emphasized the concept of equitable and reasonable utilization when it directed that “the multi-purpose programme, in the form of a co-ordinated single unit, for the use, development and protection of the watercourse is implemented in an equitable and reasonable manner.”30 The ICJ did not refer to the obligation not to cause harm. Other basic obligations under the Convention include the obligation to cooperate through, inter alia, the establishment of joint mechanisms or commissions, and the regular exchange of data and information, and through notification of other riparian states of planned measures with possible significant adverse effects. The Convention addresses a number of aspects related to notification of other riparians of such planned measures. Those aspects include the period for reply; obligations of the notifying state during the period for reply; reply for notification, and absence of reply; consultations and negotiations concerning planned measures; procedures in the absence of notification; and urgent implementation of planned measures. Environmental protection of international watercourses is dealt with by the Convention under “Protection, Preservation and Management” of international watercourses. Under this part, the Convention establishes a number of obligations on the watercourse states, including protection and preservation of ecosystems; prevention, reduction and control of pollution; non-introduction of alien or new species; and protection and preservation of the marine environment.31 Article 33 and the Annex to the Convention deal with dispute settlement mechanisms and procedures. The Article lays down a number of methods for settlement of disputes, including negotiations, jointly seeking the good offices of, or mediation and conciliation by a third party, or use of joint watercourse institutions. It also includes the options of submission of the dispute either for arbitration in accordance with detailed rules laid down in the Annex to the Convention, or to the ICJ. However, the method for settlement of a particular dispute should be agreed upon by both parties. The only obligatory method set forth in the Convention is impartial fact-finding. Although Article 33 lays down detailed procedures for such fact-finding, it only requires the parties to consider the report of the fact-finding commission in good faith. This overview indicates that the Convention is basically a framework convention, which lays down basic principles and procedures, leaving the details to the watercourse states to complement in agreements that take into account the characteristics and uses of their specific watercourse.

29 30 31

See Case Concerning the Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 1, 63 (Sept. 25). See id. ¶ 150; see also id. ¶¶ 78, 85. See David Freestone & Salman M.A. Salman, Ocean and Freshwater Resources, in The Oxford Handbook of International Environmental Law 337, 352 (Daniel Bodansky, Jutta Brunnee & Ellen Hey eds., 2007).

45 Salman M.A. Salman, The Future of International Water Law

III. Status of the Watercourses Convention The Watercourses Convention was opened for signature on May 21, 1997, and remained open for three years, until May 20, 2000. By that time only sixteen states had signed the Convention. As indicated earlier, the Convention requires thirty-five instruments of ratification or accession to enter into force. As of this year, thirteen years after its adoption, the Convention has yet to command sufficient ratifications to enter into force. It has only been ratified or acceded to by nineteen states, a number far short of that required under the Convention.32 A number of factors have contributed to the slow pace of the ratification/accession process, and the reluctance of some states to become parties to the Convention.33 One such factor is the concern of some states about which of the two principles of international water law is the governing one under the Convention: equitable and reasonable utilization, or the obligation not to cause significant harm? As indicated earlier, lower riparians tend generally to favor the no harm rule, as it protects their existing uses; whereas upper riparians tend, by and large, to favor the principle of equitable and reasonable utilization because it provides them with a fair share even if that may impact downstream riparians. Some downstream riparians view the Convention as biased in favor of upstream riparian because of the emphasis on the principle of equitable and reasonable utilization, and accordingly are reluctant to be parties to it. Conversely, some upstream riparians believe the exact opposite of this, that the Convention, through the obligation not to cause significant harm, protects existing uses, and thus favors downstream riparians. As indicated earlier, the guiding principle of the Convention is equitable and reasonable utilization which protects the rights of all the riparian states. Thus, the notion that the Convention is biased in favor of downstream or upstream riparians is not correct. In line with the above notion, notification for planned measurers is viewed by many upstream riparians as favoring downstream riparians, and even giving them veto power over the development plans of the upstream riparians. The Convention actually requires timely notification of other watercourse states for planned measures which may have significant adverse effect upon them, and does not limit notification to downstream states only.34

32

33 34

As at June 2010, the states that have ratified or acceded to the Watercourses Convention are: Finland, Germany, Hungary, Iraq, Jordan, Lebanon, Libyan Arab Jamahiriya, Namibia, Netherlands, Norway, Portugal, Qatar, South Africa, Sweden, Syrian Arab Republic, Uzbekistan, Tunesia, Spain and Guinea Bissau. For further details, see http://treaties. un.org/Pages/ViewDetails.aspx?src=IND&id=530&chapter=27&lang=en. See Salman M.A. Salman, The United Nations Watercourses Convention Ten Years Later – Why Has Its Entry into Force Proven Difficult?, 32 Water Int’l 1 (2007). For a detailed discussion of the requirement of notification to both downstream as well as upstream riparians, and the reasons therefor, see Salman M.A. Salman, The World Bank Policy for Projects on International Waterways: An Historical and Legal Analysis (2009).

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Another factor relates to existing agreements. Some riparians who are parties to existing agreements believe that the Convention stance regarding such agreements is not strong enough because it does not adequately protect such agreements. On the other hand, riparians who are not parties to such agreements believe that the provisions of the Convention should prevail over those existing agreements. The dispute settlement provisions of the Convention are seen as weak by some riparians as they only reinforce the fact-finding process. Conversely, some riparians believe that the whole process of dispute settlement should be left to the riparians to choose and manage themselves.35 As a result of the inaccurate interpretations of, and misconceptions about, some of the provisions of the Convention, the process of ratification of the Convention has been markedly slow. Indeed, the process threatens that the Convention may not enter into force and effect. However, the failure of states to become parties to the Convention should not be taken to mean rejection of the principles of international water law enunciated therein. In fact, a number of agreements concluded at the regional level reflect those principles, as discussed below. IV. Regional Approaches to Shared Watercourses As indicated earlier, the main principles enunciated by the Convention such as equitable and reasonable utilization and the obligation not to cause harm, exchange of data and notification for planned measures, environmental protection and dispute settlement represent the basic principles of customary international water law.36 Indeed, the Watercourses Convention reiterated, by and large, many of the principles embodied in the rules and resolutions issued by the IIL and ILA, as well as some of the main principles set forth in bilateral and multilateral agreements on international watercourses, and in judicial and arbitral decisions. Thus, the Convention has basically codified many of those principles and consolidated them in one instruments. In turn, many of the Convention’s principles have been reflected in some subsequent regional treaties and agreements, as discussed below. As such, the Convention has become the focal point of the principles of international water law. The majority of the bilateral and multilateral agreements concluded on international watercourses since the 1970s, have incorporated, by and large, the basic principles of international water law discussed above. However, those instruments differed on the emphasis of some principles over the others. The difference on emphasis is dictated by a number of factors including regional considerations, the immediate concerns and interests of the watercourses states, and the nature and characteristics of the watercourse in questions. The variation in issues emphasized by the riparians, 35

36

See Press Release, General Assembly, General Assembly Adopts Convention on Law of Non-Navigational Uses of International Watercourses, U.N. Doc. GA/9248 (May 21, 1997). See Stephen McCaffrey, The UN Convention on the Law of the Non-Navigational Uses of International Watercourses: Prospects and Pitfalls, in International Watercourses, supra note 26, at 26.

45 Salman M.A. Salman, The Future of International Water Law

and the underlying reasons therefor, can be clearly discerned in three regional instruments on international watercourses. Those instruments are: the Treaty for Amazonian Cooperation, the United Nations Economic Commission for Europe (UN/ ECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes, and the Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC). Each of those instruments is briefly discussed and analyzed below. A. The Treaty for Amazonian Cooperation This Treaty (the Amazon Treaty) was concluded by the eight riparian states of the Amazon River, namely, Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela, in Brasilia on July 3, 1978.37 The overall aim of the parties, as set forth in the Treaty, is to promote the harmonious development of the Amazon region, to permit an equitable distribution of the benefits of said development among the parties so as to raise the standards of living of their peoples and to achieve total incorporation of their Amazonian territories into their respective national economies. Yet, the Treaty hastens to emphasize the necessity of maintaining a balance between economic growth and conservation of the environment, and to underscore that cooperation among the parties would facilitate fulfilment of these responsibilities by continuing and expanding the joint efforts for the ecological conservation of the Amazon region. The Treaty restates the agreement of the parties for joint actions and efforts for the harmonious development of their respective Amazonian territories for attainment of equitable and mutually beneficial results and achievement of the preservation of the environment, together with the conservation and rational utilization of the natural resources of these territories. The Treaty acknowledges the need for the exploitation of the flora and fauna of the Amazon region, but requires that such exploitation be rationally planned so as to maintain the ecological balance within the region and preserve its species. Such rational planning would be achieved through, inter alia, promotion of scientific research and exchange of information and technical personnel among the competent agencies within the respective countries so as to increase their knowledge of the flora and fauna of their Amazonian territories and prevent and control diseases in said territories. The Treaty also calls for cooperation in ensuring that measures adopted for the conservation of ethnological, and archeological wealth of the Amazon region are effective.38 A number of other specific areas are also addressed by the Treaty. Complete freedom of commercial navigation is mutually guaranteed on a reciprocal basis by the parties to the Treaty. Indeed, the Treaty goes on to record the agreement of the 37 38

See Treaty on Amazonian Cooperation, 17 I.L.M. 1045 (1978). For a description of some of these measures, see B. Braga, E. Salati & H. Mattos de Lemos, Sustainable Water-Resources Development of the Amazon Basin, in Management of Latin American River Basins: Amazon, Plata, and São Francisco 3 (Asit K. Biswas, Newton V. Cordeiro, Benedicto P.F. Braga & Cecilia Tortajada eds., 1999).

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parties to create a suitable physical infrastructure among the respective countries, especially in relation to transportation and communications, and to undertake studies of the most harmonious ways of establishing or improving road, river, air and telecommunication links bearing in mind the plans and programs of each country. The Treaty also calls for the development, under equitable and beneficial conditions, of retail trade of products for local consumption among the respective Amazonian border populations, as well as cooperation to increase the flow of tourists, without prejudice to the protection of indigenous cultures and natural resources. It also calls for the rational utilization of the hydropower resources of the Amazonian rivers for the social and economic development of the region. The Treaty goes on to state the agreement of the parties to maintain a permanent exchange of information and cooperation among the parties, and to prepare operational agreements and understandings, as well as the pertinent legal instruments which would assist in achieving the aims of the Treaty. Two institutional mechanisms are established to ensure that the aims and objectives of the Treaty are achieved. The Ministers of Foreign Affairs of the parties would convene meetings when deemed opportune or advisable in order to establish the basic guidelines for common policies for assessing and evaluating the general development or the process of Amazonian cooperation, and for taking decisions designed to carry out the aims set out in the Treaty. In addition, the Amazonian Cooperation Council comprising top level diplomatic representatives is established with a wide mandate, and is required to meet once a year. The mandate of the Council includes ensuring that the aims and objectives of the Treaty are complied with, carrying out the decisions taken at meetings of the Ministers of Foreign Affairs, and recommending to the parties the advisability and the appropriateness of convening meetings of the Ministers of Foreign Affairs, and of drawing-up the corresponding agenda. Moreover, the Council is responsible for taking under consideration initiatives and plans presented by the parties, as well as adopting decisions for undertaking bilateral or multilateral studies and plans. It also has the mandate for evaluating the implementation of plans of bilateral or multilateral interests, and drawing up rules and regulations for its proper functioning. In addition, each party would establish a Permanent National Commission charged with enforcing in its respective territory the provisions set out in the Treaty, as well as carrying out the decisions taken at meetings of the Ministers of Foreign Affairs and by the Amazonian Cooperation Council, without jeopardizing other tasks assigned to them by the respective state. No specific provisions on dispute settlement are included in the Treaty, perhaps because of the nature of the objectives of the Treaty itself. However, the general authority given to the Ministers of Foreign Affairs can be read to include discussing and resolving any issues regarding interpretation and application of the Treaty.39 Hence, the Amazon Treaty deals with the overall aim of the harmonious development of the Amazon region and the equitable sharing of the benefits so as to raise the standard of living of its inhabitants. A number of areas, such as exploitation of flora and fauna, transportation and free navigation, hydropower, trade, sanitation 39

See Article XX of the Amazon Treaty.

45 Salman M.A. Salman, The Future of International Water Law

and tourism are specified in the Treaty as means for achieving such regional development. However, the Treaty requires that said regional development should maintain a balance between economic growth and conservation of the environment. B. UN/ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes This Convention, generally known as the Helsinki Convention, was adopted by the United Nations Economic Commission for Europe (UN/ECE)40 on March 17, 1992.41 It entered into force on October 6, 1996, and as of June 2010, the Convention had thirty-seven parties.42 As those dates indicate, the work on the Helsinki Convention was undertaken in parallel with the work of the Watercourses Convention. Entry into force of the Helsinki Convention took place a few months before the Watercourses Convention was adopted by the UNGA. The Helsinki Convention expresses concerns over the existence and threats of adverse effects, in the short or long term, of changes in the conditions of transboundary watercourses and international lakes on the environment, economies and well-being of the member countries of the UN/ECE. The aim of the Convention is to protect international rivers and lakes from transboundary impact through enhanced cooperation, and to ensure that transboundary waters are used in a reasonable and equitable way, taking into particular account their transboundary character. The Helsinki Convention defines transboundary impact to mean any significant adverse effect on the environment of one state resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of another party. The definition goes on to state that such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures, or the interaction among these factors. They also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors. Article 2 of the Helsinki Convention obliges the parties to take all appropriate measures to prevent, control and reduce any transboundary impact. It goes on to require the parties to take all appropriate measures to prevent, control and reduce pollution of waters causing or likely to cause transboundary impact, and to ensure that transboundary waters are used with the aim of ecologically sound and rational water management, and environmental protection. It lays down three principles to guide the parties when taking those measures. The first is the precautionary principle.43 This principle requires that action to avoid the potential transboundary impact 40 41 42 43

The UN/ECE encompasses Europe, Central Asia, North America and Israel. See 31 I.L.M. 1312 (1992). For a list of the parties to the Helsinki Convention, see http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=519&chapter=27&lang=en. See The Precautionary Principle and International Law: The Challenge of Implementation (David Freestone & Ellen Hey eds., 1996).

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of the release of hazardous substances not be postponed on the ground that scientific research has not fully proven a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand. The second is the polluter pays principle, and the third is the sustainability principle. Under the latter, water resources should be managed so that the needs of the present generations are met without compromising the ability of future generations to meet their own needs.44 Furthermore, the Helsinki Convention requires the parties to develop, adopt and implement legal measures to ensure, inter alia, prior licensing of waste-water discharges, limits of waste-water discharges based on best available technology, biological treatment for waste water, application of environmental impact assessment and other means of assessment, and minimization of accidental pollution.45 To ensure that transboundary waters are used in a reasonable and equitable manner, taking into particular account their transboundary character, the Helsinki Convention lays down detailed provisions on exchange of information and consultation. It obliges the parties to provide for the widest exchange of information as early as possible on issues covered by the Convention. It also requires exchange of data and information between the parties to cover, inter alia, the environmental conditions of the transboundary waters, emission and monitoring data, and measures taken or planned to be taken to prevent, control or reduce transboundary impact. It also calls for consultations to be held between the riparian parties on the basis of reciprocity, good faith and good neighborliness, at the request of any such party. Such consultations shall aim at cooperation regarding the issues covered by the provisions of the Convention. The Helsinki Convention, similar to the Watercourses Convention, is a framework convention. It calls on the parties to enter into bilateral and multi-lateral agreements, on the basis of equality and reciprocity, to define their mutual relations and conduct regarding the prevention, control and reduction of transboundary impact. Those agreements shall provide for the establishment of joint bodies to carry out a number of technical tasks related to transboundary impacts.46 In addition, the Executive Secretary of the UN/ECE is designated, by the Convention, to carry out a number of tasks, including the convening and preparing of the Meetings of the Parties,47 the transmission of reports and other information received in accordance with the provisions of the Convention, and the performance of any other functions as may be determined by the parties.

44 45

46

47

See Freestone & Salman, supra note 31, at 355. For an analysis of the UN/ECE Convention, see Branko Bosnjakovic, UN/ECE Strategies for Protecting the Environment with Respect to International Watercourses: The Helsinki and Espoo Conventions, in International Watercourses, supra note 26, at 47. See, e.g., 1994 Convention on Co-operation for the Protection and Sustainable Use of the River Danube, available at http://www.icpdr.org/; see also the 1999 Convention on the Protection of the Rhine (also referred to as the 1999 Rhine Convention), available at http://www.iksr.org/index.php?id=327. For more details on the Meetings of the Parties, see http://www.unece.org/env/water/ meetings/meetings.htm.

45 Salman M.A. Salman, The Future of International Water Law

Thus, the main concern of the members of the UN/ECE countries has been the prevention, control and reduction of any significant adverse effects to their transboundary waters. While the Amazonian countries are elaborating strategies for development of the Amazon region, the UN/ECE members are addressing the consequences of their advanced stage of industrialization and development on their international waters, and are concluding treaties and protocols to prevent or mitigate the negative environmental consequences.48 C. Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC) In 1992, ten countries in the Southern Africa region (Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Tanzania, Zambia and Zimbabwe) concluded the Treaty of the Southern African Development Community (SADC), establishing SADC as an official international organization.49 The Treaty laid down the foundations for cooperation among those countries in a number of areas, including shared water resources. In 1995 those SDAC members signed the Protocol on Shared Watercourse Systems in the Southern African Development Community Region.50 However, adoption by the UNGA of the Watercourses Convention in May 1997 prompted the SADC countries to revise their Protocol to ensure its consistency with the Convention. By that time the member countries of SADC increased to fourteen, following the joining of the Democratic Republic of Congo, Mauritius, Seychelles and South Africa. The process of revising the Protocol started in 1998, and was completed on August 7, 2000 when SDAC members signed the Revised Protocol on Shared Watercourses in the Southern African Development Community.51 The Revised Protocol entered into force on September 22, 2003. The Revised Protocol is based, to a considerable extent, on the Watercourses Convention, and embodies a number of concepts adopted by the Convention. Indeed, the preamble to the Revised Protocol itself refers specifically to “the progress with the development and codification of international water law initiated by the Helsinki Rules and that of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses.” The areas where the provisions of the Revised Protocol are similar to those of the Watercourses Convention include definition of the term “watercourse,” the factors for determining equitable and reasonable utilization, 48

49 50 51

It should be added that the UN/ECE introduced an amendment to Articles 25 and 26 of the Helsinki Convention on November 28, 2003, pursuant to decision III/1, which opened the Convention to non-UN/ECE members to become parties. However, this amendment has not yet entered into force. As of June 2010, it has been ratified by fifteen parties. It requires ratification by two-thirds of the parties to enter into force and effect. For further information, see the website of the UN/ECE at http://www.unece.org/env/ water/status/amend.htm. 32 I.L.M. 120 (1993). Unpublished, on file with the author. 40 I.L.M. 321 (2001).

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notification for planned measures, and the provisions on the environment, as well as on management, regulation and installations. One area of difference between the two instruments is navigation. Like the Amazon Treaty, the Revised Protocol establishes the principle of freedom of navigation of all the riparian states on a reciprocal basis.52 The provisions regarding the obligation not to cause significant harm under the Revised Protocol are also based largely on the provisions of the Watercourses Convention, albeit with one difference. This difference relates to what a watercourse state should give “due regard to” when significant harm is nevertheless caused to another watercourse state, as a result of its utilization of the shared watercourse. Whereas the Watercourses Convention requires that due regard be given to the provisions of Articles 5 and 6 on reasonable and equitable utilization, the Revised Protocol requires that due regard be given to the requirement to take all appropriate measures to prevent the causing of significant harm. The requirement under the Revised Protocol to give due regard to the obligation not to cause harm itself, and not to the principle of reasonable and equitable utilization, is perhaps to give equal weight to the two principles, and to dispel the notion of subordination of one to the other, thus satisfying the proponents of both principles. However, the fact that the Revised Protocol tolerates the causing of harm by including provisions on mitigation of such harm, and that it also refers to compensation, are both indicative of the fact that the obligation is not absolute. Similarly, the inclusion of the two factors relating to (i) “the effects of the use or uses of the watercourse in one watercourse State on other watercourse States” and (ii) “existing and potential uses of the watercourses” as elements for determining reasonable and equitable utilization, similar to the Watercourses Convention, should still lead to the conclusion that the Revised Protocol has subordinated the obligation not to cause significant harm to the principle of equitable and reasonable utilization. The Revised Protocol, like the Amazon Treaty, establishes a number of institutional structures starting with the Committee of Water Ministers whose responsibilities include overseeing and monitoring implementation of the Protocol. The structure also includes the Committee of Water Senior Officials, which is entrusted with preparing reports and plans, as well as the Water Sector Coordinating Unit that organizes and manages policy meetings. The dispute settlement procedures under the Protocol are simple. They require the parties to strive to resolve all disputes regarding implementation, interpretation or application of the provisions of the Revised Protocol amicably, in accordance with the principles enshrined in the Treaty establishing SADC. Disputes between member states, which are not settled amicably, shall be referred to the SDAC Tribunal whose decision shall be final and binding. Similar to the Watercourses and the Helsinki Conventions, the Revised Protocol is also a framework treaty whose provisions are to be complemented by agreements between the riparians of the particular watercourse, taking into account the special characteristics of that watercourse. One agreement that reflects this approach is the “Agreement between the Governments of the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia, and the Republic of South Africa on the Establishment of the Orange-Senqu River Commission.” The Agreement was concluded in 52

See Article III of the Amazon Treaty, and Article 3 of the Revised Protocol.

45 Salman M.A. Salman, The Future of International Water Law

Windhoek, Namibia, on November 3, 2000, about three months after the Revised Protocol was signed.53 The Preamble to the Agreement recalled the “Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted by the General Assembly of the United Nations in 1997.” The Preamble also indicated that the parties have been “inspired by the spirit of the Protocol on Shared Watercourses Systems in the Southern African Development Community Region and the Revised Protocol.” Article 7 of the Agreement obliges the Parties to utilize the resources of the Orange-Senqu River in “equitable and reasonable manner with a view of to attaining optimal and sustainable utilization thereof.” It also obliges the Parties to “take all appropriate measures to prevent the causing of significant harm to any other Party.” The Article goes on to state that the terms “equitable and reasonable,” and “significant harm” shall be interpreted in line with the Revised Protocol.”54 As stated earlier, the Revised Protocol itself used those terms in a manner similar to that of the Watercourses Convention. Accordingly, it can be concluded that the Revised Protocol, as well as the OrangeSenqu Agreement, have adopted the basic principles enunciated under the Watercourses Convention. It is interesting to note that the adoption by the SADC countries of the basic principles of the Watercourses Convention has taken place notwithstanding the fact that only two countries out of the SADC fourteen member countries are currently parties to the Convention. Those countries are Namibia and South Africa.55 V. The Regional Approaches and the Watercourses Convention The instruments discussed above represent three regions, namely, South America, Europe and Africa. One of those instruments, the Amazon Treaty, was concluded long before the Watercourses Convention was adopted by the UNGA. In fact it was concluded when the ILC was still in the early stages of its work on the Watercourses Convention. The Helsinki Convention was prepared concurrently with the Watercourses Convention and entered into force a few months before the UNGA adoption of that Convention. The Revised Protocol, on the other hand, was issued specifically to incorporate the provisions of the Watercourses Convention. As stated earlier, the objective of the Amazon Treaty is development of the Amazon region and the equitable sharing of the benefits, while maintaining a balance between economic growth and conservation of the environment. The Helsinki Convention aims at the protection of transboundary watercourses by preventing, controlling and reducing any transboundary impact resulting from the advanced stage of development and industrialization of the UN/ECE Region. The overall objective of the Revised Protocol is to foster closer cooperation for judicious, sustainable and coordinated management, sharing and protection of shared watercourses.

53 54 55

Unpublished, on file with author. See Articles 7.2 and 7.3 of the Agreement. See supra note 1.

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The issue of water scarcity is clearly not a major or immediate concern of either the Amazon riparians, or the parties to the Helsinki Convention. Indeed, those two regions are classified as water rich. Accordingly, it is not surprising that neither of the two instruments analyzed above emphasized the concept of equitable sharing of their watercourses. However, this is not the case with the countries of the SADC. Most of the fourteen-member SADC countries are water scarce, and there are a number of rivers shared by some of those countries.56 On the other hand, navigation is addressed by both the Amazon Treaty and the Revised Protocol, but not by the Helsinki Convention, reflecting and needs and concerns of the South American and African counties. Yet, despite the differences in the regions, timing and concerns of each of those three legal instruments, a number of common themes still emerge. The three instruments are inclusive of all the parties, and the equality of such parties is underscored under each such instrument. The need for the participation of and cooperation among the riparians is stressed as the sine qua non for the achievement of the purposes of each of the three instruments. Such cooperation would be achieved, inter alia, through the regular exchange of data and information, as well as consultation, and in the establishment of joint institutions to oversee the implementation of the agreement. Those institutions in the three regional instruments start with one that includes high level officials. Ensuring that international waters are used in an equitable and reasonable manner is another common theme to the three instruments, although the approaches differ. While the Amazon Treaty emphasizes equitable sharing of benefits, the Helsinki Convention underscores the need to protect international rivers and lakes from transboundary impact through enhanced cooperation. The Revised Protocol embraces the concept of equitable and reasonable utilization enunciated by the Watercourses Convention, and reiterates the same factors for determining such equitable and reasonable utilization. Protection of the environment is one other major concern of each of the three instruments. The main emphasis of the Amazon Treaty is maintaining the balance between development and the environment. The Helsinki Convention goes further by aiming to protect its international watercourses from impacts of existing and expanding industrial developments. The environmental provisions of the Revised Protocol mirror those of the Watercourses Convention, which pays more attention to the quantitative sharing of the watercourses than to the qualitative aspects. Thus, while the Amazonian countries are elaborating strategies for development of the Amazon region, the UN/ECE members are paying more attention to the qualitative aspects of shared watercourses by addressing the existence and threats of adverse effects to their international waters, and are concluding treaties and protocols for that purpose. The parties to the Revised Protocol are more concerned with the 56

At least eleven major rivers are shared in the SADC region. Of those rivers, the Congo is shared by nine countries, while the Zambezi is shared by eight. For a discussion of the water resources situation in the SADC Region, and for the list of those rivers, see Salman M.A. Salman, Legal Regime for Use and Protection of International Watercourses in the Southern African Region: Evolution and Context, 41 Nat. Resources J. 981 (2001).

45 Salman M.A. Salman, The Future of International Water Law

quantitative aspects and the equitable and reasonable sharing of their watercourses, reiterating the principles of the Watercourses Convention. As discussed earlier, the Watercourses Convention has, by and large, codified and developed the basic principles of international law that were prevalent during the years 1970–97. Those principles include cooperation and participation, the need for exchange of data and information, notification, the equitable and reasonable utilization, management and protection of the watercourse, and the peaceful settlement of disputes. As noted before, the Watercourses Convention does not lay down rigid rules to be followed. Rather, it is a framework convention which sets forth basic principles, and allows the states discretion in applying and adjusting those principles to the particular characteristics of their shared watercourse, and to their priorities and concerns. It is perhaps because of this basic feature that the Watercourses Convention has received major endorsements since its adoption by the UNGA in May 1997. In September 1997, only four months after its adoption, the International Court of Justice confirmed the concept of the perfect equality of all the riparian states in the use of the shared watercourses, and stated that “[m]odern development of international law has strengthened this principle for non-navigational uses of international watercourses as well, as evidenced by the adoption of the Convention of 21 May 1997 on the Law of the Non-Navigational Uses of International Watercourses by the United Nations General Assembly.”57 A similar endorsement, but with less legal weight, was the statement of the World Commission on Dams in 2000 that “the principles embodied in the 1997 UN Convention on the Law of the Non-Navigational Uses of International Watercourses warrant support. States should make every effort to ratify the Convention and bring it into force.”58 Along the same lines, the World Water Council described the provisions of the Convention as sensible but noted that “[s]adly enough, even after all that time [it took to prepare the Convention], it now seems unlikely that this Convention will be ratified by enough countries to enter into force.”59 Although the World Commission for Water in the 21st Century referred to the Watercourses Convention as “weak”, the Commission added “[s]urely, weak as it is, it [the Convention] deserves to be approved if only as a first step towards a greater appreciation of the international character of water.”60 The ILA, during its Helsinki Conference held in August 1996, adopted a resolution on the then draft Watercourses Convention. The resolution took note “with satisfaction of the completion of the work of the United Nations International Law Commission on the topic of the non-navigational uses of

57 58 59 60

See Gabčíkovo-Nagymaros case, supra note 29, para. 85. Dams and Development, A New Framework for Decision-Making (The Report of the World Commission on Dams) 252-53 (2000). William J. Cosgrove & Frank R. Rijsberman, World Water Vision – Making Water Everybody’s Business 44 (2000). World Commission for Water in the 21st Century, A Water Secure World – Vision for Water, Life and the Environment 32 (2000).

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international watercourses.”61 It also took note with satisfaction of the General Assembly resolution convening the Sixth Committee as a Working Group of the Whole to elaborate a convention on the basis of the ILC draft. This wide range of endorsements indicates a clear recognition of the Watercourses Convention as the principal authoritative reference for international water law. VI. Conclusion The adoption by a large majority of the UNGA of the Watercourses Convention on May 21, 1997, is no doubt a milestone in the evolution and progressive development of international water law. Building on the work of the IIL, the ILA, the ILC and the UNGA, the Convention has codified, consolidated and streamlined the basic principles of international water law in one instrument. It is a framework convention that lays down some basic procedural and substantive principles and leaves a considerable space to the riparians to complement its provisions through agreements that take into account the particular characteristics of the said watercourses, and their special needs and priorities. Hence, it is indeed disappointing that thirteen years after its adoption, many states have not yet followed their vote at the UNGA with ratification of, or accession to the Convention. As stated earlier, of the thirty-five instruments of ratification/accession that the Watercourses Convention needs to enter into force and effect, only nineteen have thus far been completed. However, the failure of those states, thus far, to become parties to the Watercourses Convention should in no way be seen as a setback to the Convention or to the general principles of international water law enunciated therein. By codifying and developing those principles, the Watercourses Convention has become a convergence point of all the earlier work on international water law. As the previous discussion indicates, the Amazon Treaty and the Helsinki Convention incorporate the same basic principles enshrined later in the Watercourses Convention. The discussion has also shown the influential guidance that the Convention has provided on the SADC Protocol and other subsequent agreements in the SADC region. The wide range of endorsements of the Watercourses Convention, particularly of the International Court of Justice, is a clear recognition of the role and place of the Convention. Thus, it can be concluded that the Watercourses Convention has codified and progressively developed the principles of international water law, and that it has become the principal authoritative instrument in this field. Even if it does not enter into force and effect, it has provided, and will continue to provide, influential guidance to riparian states for adopting and adapting the provisions of international water law contained therein to the particular characteristics of their watercourse, and to their regional needs, priorities and concerns. Because of the differences in such needs and priorities, states will continue to progressively develop the principles of international water law, codified in the Watercourses Convention, through regional agreements that are tailored for their particular needs and priorities, but are based on those principles. 61

ILA, Report of the Sixty-Seventh Conference 416 (Helsinki 1996).

Part VI Making and Applying Law to the Use of Force

Chapter 46 The Law on Asymmetric Warfare Eyal Benvenisti*

I. Introduction: The Logic of Asymmetric Warfare In his writings on the laws of war, Michael Reisman has devoted much attention to the challenges of asymmetric warfare characterized by the demise of the “dynamic of reciprocity and retaliation,”1 especially when regular armies fight non-state actors that are “neither beneficiaries of nor hostages to the territorial system.”2 Indeed, asymmetric warfare shakes the very foundations of the traditional law of war, both ad bellum and in bello. The weaker parties, certainly the non-state actors, exploit and, hence, challenge two basic assumptions that have grounded jus in bello since its inception: that it is possible to compartmentalize the battlefield and isolate with sufficient clarity military from civilian targets and that there are clear objectives to any military campaign, such as gaining control over territory. These two assumptions gave rise to the premise that a military conflict could be compatible with humanitarian ideals, that war would be about inducing concessions from the defeated party by degrading its military capabilities, weakening and disabling its fighters without necessarily killing them.3 Neither of these assumptions typically holds in asymmetric warfare, when regular armies fight irregulars. First, in the asymmetric context there are very few purely military targets. This dramatically limits the ability of a regular army to identify arenas where it can legitimately exercise its power. In fact, as the invasion into Iraq in 2003 demonstrated, a relatively weaker army will try to reduce the availability of such arenas by reverting * 1 2 3

I thank George W. Downs for his very helpful comments on an earlier draft and to Shay Gurion and Guy Keinan for their excellent research assistance. W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 Am. J. Int’l L. 82, 86 (2003). Id. As the 1868 St. Petersburg Declaration of the International Military Commission asserted, “The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy … for this purpose it is sufficient to disable the greatest possible number of men.” Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Nov. 29-Dec.11, 1868, 18 Martens Nouveau Recueil (ser. 1) 474, reprinted in 1 Am. J. Int’l L. 95 (Supp. 1907).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 931-950.

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to guerrilla tactics.4 Moreover, it has become increasingly unclear what can be considered a military gain, especially since control over enemy resources and territory often proves to be a liability rather than an asset. With no tangible military objectives, commanders are often tempted to simply capture or kill as many of their opponents as possible or to intimidate their opponents’ non-combatant constituency. While not a new phenomenon, asymmetric warfare began to proliferate at the end of the Cold War. What Eric Hobsbawm called “the democratization or privatization of the means of destruction”5 provided novel opportunities for non-state actors to challenge not only their own governments but also the strongest of powers. Although these opportunities did not produce equality in arms—on the contrary, governments continued to develop more sophisticated and remotely controlled means of their own—the weapons employed by non-state actors pose a real threat to governmental interests and routing irregular combatants entails a prohibitive toll in non-combatants. The availability of low-cost effective weaponry and means of communications has empowered insurgents and at the same time prompted state leaders to resolve conflicts by using overwhelming, and at times excessive, force. The outcome has been carnage and instability. Finding new modalities to regulate this type of asymmetric warfare became a priority because the traditional ones had ceased to be of effect. Symmetric wars are selfregulated based on the threat of tit-for-tat. But as Reisman has noted,6 in asymmetric warfare, the dynamic of reciprocity and retaliation is lacking. The most immediate endeavor was directed at developing new enforcement mechanisms, mainly through international criminal tribunals.7 In retrospect, however, we must realize that not only the modalities of enforcement have changed; the law itself has changed. Perhaps due to the resort to third parties as the new enforcers of the law, perhaps due to the different conceptions of what is just in asymmetric warfare, the substance of the law on asymmetric warfare is fundamentally different than the law applicable to the typical duel between regular armies. This essay asserts that it is time to recognize that asymmetric warfare is a distinct phenomenon that is, and should be, subject to a distinct set of substantive norms and not only to different modalities of enforcement. Conscious of Toni Pfanner’s provocative challenge—“If wars between States are on the way out, perhaps the norms of international law that were devised for them are becoming obsolete as well”8—this 4 5 6 7

8

Toni Pfanner, Asymmetrical Warfare from the Perspective of Humanitarian Law and Humanitarian Action, 87 Int’l Rev. Red Cross 149, 153 (2005). Eric Hobsbawm, Age of Extremes: The Short Twentieth Century 1914-1991, at 560 (1993). See Reisman, supra note 1. See Dan Belz, Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror?, 7 Theoretical Inq. L. 97 (2006) (explaining the development of third party review mechanisms by the erosion of bilateral reciprocity). Pfanner, supra note 4, at 158. On the need to take caution in introducing changes into the laws of war to address non-state actors, see Robert D. Sloane, Prologue to a Voluntarist War Convention, 106 Mich. L. Rev. 443 (2007).

46 Eyal Benvenisti, The Law on Asymmetric Warfare

essay argues that it is in fact already possible to discern new norms for asymmetric warfare, both internal and international. It is further suggested that once we grasp that asymmetric warfare is a very different beast, we will be able to explore the potential for improving the protection of non-combatants by treating the law on asymmetric warfare as distinct from the law applied in traditional symmetric conflicts. Part II below begins by noting the changing norms of war and explaining this evolution as a response to the challenge of asymmetric warfare. Part III then explores potential areas in which the law on asymmetric warfare can and should further depart from traditional symmetric warfare law. Part IV concludes with a call to recognize asymmetric warfare as a distinct type of conflict that should be free of the confines of a law that was designed to address the traditional wars of past. Humanity would be better served were this type of warfare to have its own carefully tailored set of norms. II. Asymmetric Warfare and the Shift from Rules to Standards Until not very long ago, the regulation of warfare by international law was conveniently organized through several sets of dichotomies. The right to use force—jus ad bellum—was determined by the presence or absence of an actual armed attack, and once under attack, the victim was entitled to pursue its enemy until the latter’s submission; military conflict was defined as either international or internal, with the latter entailing only minimal restriction of the sovereign’s exercise of power. The regulation of hostilities in international armed conflicts— traditional jus in bello—was founded on the dichotomous distinction between combatants (and military targets) and non-combatants (and non-military targets). A sharp distinction was also made between the obligations of parties to the conflict and those of neutral third parties. Occupation was clearly distinct from invasion, with narrowly defined rights and obligations for the invading army for each of the stages of war. Most prominent of all, however, was the sharp distinction between jus ad bellum and jus in bello: the aggressor, including the aggressive occupant, enjoyed the same privileges during combat as the victim.9 With time, many of these dichotomies have evolved into continua shaped by overlapping sets of norms. In the context of jus ad bellum, several new exceptions to the prohibition on the use of force have been recognized in response to new types of challenges: forceful means to respond to or stop imminent attacks,10 protracted

9

10

For recent support for this dichotomy, see Adam Roberts, The Equal Application of the Laws of War: A Principle under Pressure, 90 Int’l Rev. Red Cross 931 (2008); Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int’l L. 715, 723-34 (2008); and Robert D. Sloane, The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War, 34 Yale J. Int’l L. 47 (2009). See W. Michael Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int’l L. 279 (1985).

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and low-level attacks by non-state actors, 11 or humanitarian tragedies,12 and even, at times, to prevent the development of WMD.13 The response of the victim of an act of aggression has come to be regarded, at least by some, as subject to the requirement of proportionality of that response throughout the conflict.14 The distinction between international and internal armed conflicts has been significantly muted by the recognition of the relevancy of both humanitarian and human rights obligations in both types of conflicts. Guerrilla tactics that exploited the law’s distinctions between combatants and non-combatants and between military and non-military targets made it necessary to transform these distinctions into elaborate continua. The obligation to ensure compliance with the laws of war has been recognized as applicable erga omnes and therefore obliges neutral states to be vigilant and even take action when they are violated. In the context of the law of occupation, it has been generally accepted that while the occupant has relatively broad discretion regarding the amendment of domestic legislation, it is still required to abide by human rights norms. There are several explanations for this move from rules to standards. One explanation focuses on the institutional perspective, namely, the shift of the decisionmaking power from the executive branches to the courts. As Amichai Cohen has noted, whereas in the past, international lawmaking was the province of executives and generals, who preferred bright line rules and were able to fashion them ex ante, in recent years, the task of adapting the laws of war to contemporary needs has been delegated to courts, which prefer vague standards that broaden their discretion and allow them to pass judgment ex post.15 Another explanation is of a political and cultural nature, highlighting the “transformation of the Hague/Geneva rule system into a modern vocabulary of political legitimacy.”16 Indeed, the breakdown of the dynamic of reciprocity and retaliation has emerged as an invitation to not only courts but also 11 12

13

14

15 16

See W. Michael Reisman, No Man’s Land: International Legal Regulation of Coercive Responses to Protracted and Low Level Conflict, 11 Hous. J. Int’l L. 317 (1989). See W. Michael Reisman, Legal Responses to Genocide and Other Massive Violations of Human Rights, 59 Law & Contemp. Probs. 75 (1996); W. Michael Reisman, Hollow Victory: Humanitarian Intervention and Protection of Minorities, 91 Am. Soc’y Int’l L. Proc. 431 (1997); W. Michael Reisman, Unilateral Action and the Transformations of the World Constitutive Process: The Special Problem of Humanitarian Intervention, 11 Eur. J. Int’l L. 3 (2000). See W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l L. 3 (1999); W. Michael Reisman, Self-Defense in an Age of Terrorism, 97 Am. Soc’y Int’l. L. Proc. 141 (2003); W. Michael Reisman & Andrea Armstrong, The Past and Future of the Claim of Preemptive Self-Defense, 100 Am. J. Int’l L. 525 (2006). Although the jus ad bellum assessment does depend on jus in bello considerations, a response to aggression that excessively harms non-combatants would be regarded in itself in violation of jus ad bellum. See Andreas Zimmermann, The Second Lebanon War: Jus ad Bellum, Jus in Bello and the Issue of Proportionality, 11 Max Planck Y.B. U.N. L. 99, 124 (2007). Amichai Cohen, Rules and Standards in the Application of International Humanitarian Law, 41 Israel L. Rev. 41 (2008). David Kennedy, Of War and Law 84 (2006).

46 Eyal Benvenisti, The Law on Asymmetric Warfare

to other third parties, including diverse commissions of inquiry, to take part in the process of monitoring the fighting and criticize—using the rhetoric of law—what they deem as excess. But the turn to standards became necessary not only because of increased reliance on third parties as monitors. In asymmetric warfare, bright line rules have lost much of their utility. Rules had offered regular armies engaged in symmetric conflicts means to ensure reciprocal compliance with the law. The prohibition on, for example, “[t]he attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”17 or on making “improper use of … the military insignia and uniform of the enemy”18 enabled the adversaries to communicate and monitor one another’s extent of compliance with the law and to avoid misunderstandings that could escalate into an endless cycle of reprisals. Even when standards were used to enhance protection of non-combatants, they were set sufficiently high to discern violations. Accordingly, the standard for illegal collateral harm to non-combatants was set at the “excessive” rather than “disproportionate” level.19 Although bright-line rules or relatively narrow standards entailed, as they must, under-inclusive protection for non-combatants in certain contexts (for example, civilians in defended buildings), they did represent the optimal framework in the circumstances. The advent of asymmetric warfare, where the logic of dyadic reciprocity is absent and asymmetry incentivizes both sides to circumvent the clear norms, has rendered narrow tests of this type ineffective for protecting non-combatants. Why have the governments and army generals yielded to third parties the power to redefine the law and determine its proper application? Did they simply succumb to the growing apprehensions of a better-informed and relatively safe civil society? My answer would be that with the rise of asymmetric warfare in the post-Cold War era, the delegation of authority to courts was not only a response to the sense of urgency expressed by civil society, but also served the interests of the governments of the more powerful states. These governments were concerned with the destabilizing effects of internal asymmetric warfare, which tends to burden neighboring and other countries with massive inflows of refugees or create areas of lawlessness that provide safe-havens for terrorists. These powerful governments were primarily preoccupied with internal conflicts in the developing world and in neighboring countries where the democratization of the means of destruction produced inter-ethnic conflicts that had been suppressed during the Cold War era. The tragedy in Yugoslavia was not only a humanitarian crisis but also a burden on neighboring countries that were swarmed by refugees. The criminalization and judicialization of jus in bello obligations in the post-Cold War era was thus mainly a reflection of the growing concern over internal armed 17 18 19

Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Annex, art. 25, 36 Stat. 2277 [hereinafter Hague Regulations]. Id. art. 23(f ). On the difference between the two standards, see Georg Nolte, Thin or Thick? The Principle of Proportionality and International Humanitarian Law (Jan. 3, 2009) (unpublished manuscript, on file with author).

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conflicts and their internal as well as external consequences. To restrain domestic actors, neighboring states and powerful governments had to set up tribunals and authorize them to both reshape the law and apply it. The reliance on tribunals resolved two problems. First, the tribunals made new law to regulate internal warfare, thereby overcoming the problem that emerged during the negotiations on the Additional Protocols, when many developing world governments were reluctant to voluntarily commit to new constraints in this area. Second, judicialization proved to be the most effective means of enforcing compliance in internal armed conflicts. In fact, the creation of new rules to regulate internal conflicts was accomplished quite effectively during an astonishingly short amount of time.20 This process was led by the ICTY judiciary, as “the key transitional stage [which, inter alia] changed the definition of armed conflict in a way that lowered the threshold for applying laws that govern international conflicts and … enhanced the regime governing civil wars.”21 The lacunae in the traditional law applicable to internal armed conflict were quickly filled by drawing from the law applicable to international armed conflicts and, no less importantly, by recognizing the parallel applicability of human rights law.22 Moreover, by the mid-1990s, human rights bodies (such as the European Court of Human Rights23 and the Inter-American Court on Human Rights24) had become prominent actors taking part in the elaboration and application of the new law. In a relatively short period of time, then, the law on internal warfare has become even more protective of individuals than the law on international warfare. This would come as no surprise to students of Michael Reisman, who has noted the authorship of state elites in the process of international lawmaking in general and in the area of the laws of war in particular.25 20

21 22

23 24

25

Theodor Meron, Editorial Comment, War Crimes Law Comes of Age, 92 Am. J. Int’l L. 462 (1998); see also Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995) (separate opinion of Judge Abi-Saab). According to Judge Abi-Saab, the tribunals have been afforded “a unique opportunity to assume the responsibility for the further rationalisation of these categories at some distance from the historical and psychological conditions from which they emerged and from the perspective of the evolving international legal order.” Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, 59 Vand. L. Rev. 1, 41 (2006). Given the concept of the laws of war as lex specialis (as envisioned by the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8)), the less elaborate are the laws of war the more there is room for the provisions of human rights law. Isayeva v. Russia, App. No. 57950/00, 41 Eur. H.R. Rep. 791 (2005). Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L./V/II.98, doc. 6 rev. (1998); Coard v. United States, Case 10.951, Inter-Am. C.H.R., Report No. 109/99, OEA/Ser.L/V/II.106, doc. 6 rev. (1999); Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba), Inter-Am. C.H.R., 41 I.L.M. 532 (Mar. 12, 2002). W. Michael Reisman, Private Armies in a Global War System: Prologue to Decision, 14 Va. J. Int’l L. 1, 2 (1973) (“The traditional corpus of international law comprised express and

46 Eyal Benvenisti, The Law on Asymmetric Warfare

But what about the regulation of asymmetric transnational armed conflicts, conducted by one foreign government in another’s territory against non-state actors? What was registered in this sphere is the opposite effort: powerful governments have sought to relieve themselves of even the most basic constraints of the laws of war embodied in Common Article 3 of the Geneva Convention. “The war on terror” was regarded by its authors as a unique type of war, one that allowed them to use force in any part of the world, but without any legal constraints, because the enemy consisted of “international outlaws” or “unlawful combatants.”26 Human rights law was not applicable to areas not subject to those states’ jurisdiction, and UN-mandated operations were in any event deemed to be insulated from the human rights constraints applicable to some of the participating states because the UN was not bound by the relevant treaty obligations. Thus, at the same time that asymmetric internal conflicts have come to be densely regulated and sustained by relatively effective means of enforcement, asymmetric transnational armed conflicts suffered from under-regulation. The juxtaposition of the two sets of conflicts and the laws that govern them reveals significant gaps in the protection of non-combatants in transnational armed conflicts. The gaps in civilian protection are sustained by the two remaining dichotomies in the law on international armed conflict that inform also the law on transnational armed conflict: the distinction between jus ad bellum and jus in bello and the separation of the law on the conduct of hostilities from the law on occupation. These two distinctions succeed in insulating regular armies engaged in transnational conflicts from the norms otherwise applicable international or internal conflicts, and expose civilians to insufficiently regulated risks. Fortunately, the deficiencies in non-combatant protection have already attracted attention and, for reasons explained below, are more likely to be addressed sooner rather than later, at which point, the move to standards will be completed. III. Bridging the Gaps in Civilian Protection in the Law on Asymmetric Transnational Armed Conflicts The focus of this inquiry is asymmetric transnational armed conflicts. Such conflicts are characterized by regular armies fighting in foreign lands against non-state actors or state actors that employ the modus operandi of non-state actors, which includes combatants resorting—directly or indirectly—to guerilla tactics and terrorism. In contrast to asymmetric internal conflicts, in asymmetric transnational conflicts, the powerful foreign army can rely on two legal doctrines to avoid or limit its responsibility toward non-combatants. The aim of this Part is to show the untenability of such gaps in responsibility and point out possible ways to fill them.

26

tacit communications between the effective elites of territorial communities about the practices which ought to be reciprocated among themselves.”). See George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 Am. J. Int’l L. 891 (2002).

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A. Jus Ad Bellum Considerations Informing the Analysis of “Proportional” Warfare

938

In a system in which warfare is monitored and regulated by the judiciary, the dichotomous distinction between jus ad bellum and jus in bello has outlived much of its usefulness for those concerned with the protection of non-combatants.27 While the dichotomy continues to make sense in symmetric international conflicts constrained by reciprocity, in asymmetric transnational conflicts, its consequences are counterproductive for non-combatants, and unnecessarily permissive for the powerful state army. In fact, as I will argue below, the detachment of jus ad bellum from jus in bello considerations shields a crucial element in the proportionality analysis from review, because the assessment of whether the damage to non-combatants was excessive or not does not query whether the fighting was at all necessary. This Part questions the logic of the dichotomy by observing, explaining, and justifying the growing weight of ad bellum considerations in assessing compliance with in bello obligations in the context of asymmetric transnational warfare against non-state actors. Jus in bello proportionality analysis can take into account not only the jus ad bellum question of who is to blame for the commencement of hostilities. It can similarly factor in the decision of the parties to the conflict to pursue unrelated goals during battle or prolong the military confrontation instead of negotiating its end. Whereas under traditional jus in bello, each party is entitled to pursue its adversary until the latter’s total defeat, it is increasingly becoming relevant—at least in political discourse—to inquire into the extent to which the continuation of the fighting is in fact necessary.28 Was it legitimate for the coalition forces during the 1991 campaign to rout the Iraqi army, conquer Iraq, and replace the regime after the repulsion of its forces from Kuwait? Was it legitimate to pursue the Hamas leadership in Gaza in 2008 after it had signaled its willingness to negotiate ceasefire with Israel? Under this analysis, the party who had either no legitimate reason to resort to force or no good reason to pursue it further would be more limited in justifying its exercise of military measures. A major change would ensue were these propositions to become part of 27

28

On the challenges of asymmetric warfare to the traditional jus in bello, see the excellent analysis in Robin Geiß, Asymmetric Conflict Structures, 88 Int’l Rev. Red Cross 757 (2006). Note that some commentators believe that the jus ad bellum assessment is applicable throughout the military conflict. See, e.g., Judith Gail Gardam, Necessity, Proportionality and the Use of Force by States 162 (2004); Christopher Greenwood, The Relationship Between Ius ad Bellum and Ius in Bello, 9 Rev. Int’l Stud. 221 (1983); Christopher Greenwood, Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion, in International Law, The International Court of Justice and Nuclear Weapons 247, 260-65 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999). Yet others maintain that the ad bellum proportionality requirement becomes irrelevant once war is raging. See, e.g., Yoram Dinstein, War, Aggression and SelfDefence 237-42 (4th ed. 2005). But even Greenwood maintains that the ad bellum and the in bello norms that apply simultaneously are “complementary and coexistent in their application,” rather than inter-linked. Greenwood, supra, at 265.

46 Eyal Benvenisti, The Law on Asymmetric Warfare

the law: the traditional in bello proportionality analysis never required the attacker to explain the necessity of attaining the military objective by military means; it was a given that military action was a legitimate method to attain the military objective sought by the army; the proportionality assessment was focused on the means, not the ends.29 It is no small thing to advocate bridging the gap between the two areas of the law. There are compelling moral and pragmatic reasons to maintain the “total separation”30 between jus ad bellum and jus in bello. But these reasons lose force in the context of asymmetric warfare. The need to look beyond strict jus in bello law was not lost on different observers and actors, who conflated these distinct fields by injecting jus ad bellum considerations into their assessment of the legality of certain uses of force. Indeed, even adherents of maintaining the ad bellum and in bello separation concede that in public opinion “[f ]or better or worse, conflicts continue to be viewed in terms of ‘good’ and ‘evil.’ … [T]he reality is that such differences, real or perceived, matter.” 31 Judith Gardam was the first to observe that during the Gulf War of 1991 both the coalition forces and the international community took into consideration the illegality of the Iraqi invasion of Kuwait when assessing the proportionality of the measures taken by the coalition forces. According to Gardam, “In the assessment of proportionality, civilians, and to a lesser extent combatants, of the aggressor state were accorded less weight in the balancing process than combatants of the ‘just side.’”32 Robert Sloane takes a similar approach with regard to the bombing of Serbia and Kosovo in 1999 and the 2006 Lebanon War.33 Likewise, in the reactions of key observers to the Israeli attack in the Gaza Strip during December 2008-January 2009, a linkage can be discerned between ad bellum and in bello considerations. When asked whether the United States viewed Israel’s attacks as disproportionate, the U.S. Ambassador to the United Nations linked the two issues:

29

30 31 32 33

In her dissenting opinion in the Legality of the Threat or Use of Nuclear Weapons, Judge Higgins refers to the test of excessive collateral civilian casualties in relation to the military advantage when the military advantage is “related to the very survival of a State or the avoidance of infliction (whether by nuclear or other weapons of mass destruction) of vast and severe suffering on its own population” and adds the test of necessity, namely that “no other method of eliminating this military target be available.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶ 21 (July 8) (dissenting opinion of Judge Higgins). It seems clear that by “no other method” Judge Higgins refers to no other military method, rather than no other peaceful method. Yoram Dinstein, The Rule of Law in Conflict and Post-Conflict Situation: Comments on War, 27 Harv. J. L. & Pub. Pol’y 877, 881-82 (2004). Michael N. Schmitt, Asymmetrical Warfare and International Humanitarian Law, 62 A.F. L. Rev. 1, 41 (2008). Judith Gail Gardam, Proportionality and Force in International Law, 87 Am. J. Int’l L. 391, 412 (1993). Sloane, supra note 9, at 93-103; Enzo Cannizzaro, Contextualizing Proportionality: Jus ad Bellum and Jus in Bello in the Lebanese War, 88 Int’l Rev. Red Cross 779 (2006).

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[W]e believe that Israel has the right to defend itself against [the Hamas] rocket attacks and we understand also that Israel needs to do all that it can to make sure that the impact of its exercise of right of self defense against rockets is as minimal and no affect on the civilian population.34

940

A responsible legal adviser, noticing this trend, must conclude that the justness of one’s cause, as it is perceived by others, influences the assessment of others as to the proportionality of one’s military actions. Such an observation is bound to shape the evolution of international practice and, hence, also the law. This is the insight that feeds Michael Reisman’s theory of the incident as a decisional unit in international law,35 which gives great weight to the task of observing the responses to the incident. By observing reactions to incidents where various actors assert rights and obligations under international law, it is possible, according to Reisman, to “mak[e] inferences about the normative expectations of those who are politically effective in the world community.”36 This may be an exercise in politics rather than black-letter law, but “[i]t is no disservice to law to acknowledge that prescriptions about what one ought to do are, alas, only one factor in deciding what one will do. Naturally, the weight accorded prescriptive norms will vary with the factual context, the identity of the actors, and the effectiveness of the legal system enforcing the norms.”37 Accordingly, a responsible legal adviser must conclude from the reactions to the 1991 Gulf War, Kosovo in 1999, and the warfare in Lebanon and Gaza that the more “just” you are (or continue to be) regarded in jus ad bellum terms, the broader your discretion in determining the proportionality of your military actions. Such an observation is bound to shape the evolution of international law. It is my claim, however, that these reactions also reflect sound policy considerations. Most contemporary scholars balk at such a suggestion.38 There are two main strands to their firm opposition to linking the two bodies of law. First is the argument from dyadic reciprocity: to ensure compliance with jus in bello, both sides must enjoy its equal protection. The aggressor will have no incentive to comply with the law if the defender is released from the law’s constraints. And because each side tends to view itself as just, unless jus in bello is insulated from ad bellum considerations, the two 34

35

36 37 38

Press Release, U.S. Mission to the United Nations in New York, Statement by Ambassador Zalmay Khalilzad, U.S. Permanent Representative, on the situation in Gaza, at the Security Council Stakeout (Dec. 31, 2008), available at http://www.usun-ny.us/press_releases/20081231_381.html. Admittedly, most other statements, including those issued by U.S. officials, noted both that Israel acted in self-defense and that it was obliged to avoid disproportionate harm to civilians and created no linkage between the two issues. W. Michael Reisman, International Incidents: Introduction to a New Genre in the Study of International Law, 10 Yale J. Int’l L. 1 (1984); International Incidents: The Law That Counts in World Politics (W. Michael Reisman & Andrew R. Willards eds., 1988). Reisman, supra note 35, at 2. Id. at 3. See sources cited supra note 9.

46 Eyal Benvenisti, The Law on Asymmetric Warfare

camps will immediately sink to ruthless brutality.39 This argument is convincing, even morally compelling,40 when conditions for reciprocity obtain. But the dyadic reciprocity rationale does not hold in asymmetric warfare. The asymmetric relations in fact incentivize both sides to abandon reciprocal considerations: the non-state actor resorts to terrorism, whereas the stronger regular army is tempted to inflict excessive harm upon non-combatants, to conflate military objectives with killing combatants, and to treat captured combatants as outlaws. Fortunately, instead of through dyadic reciprocity, compliance with the law in asymmetric warfare can be sustained through the growing involvement of third parties in such conflicts with their novel review mechanisms. Their involvement shifts the incentive structure from the traditional dyadic dynamic of reciprocity to a much broader dynamic. The parties to the combat must take the reactions of those third parties into account as the fighting is played out not only bilaterally but also concurrently in the global arena. Toleration or condemnation from key international actors—including public and private actors and observers and foreign and international courts and commissions of inquiry—often proves to be an effective incentive for at least the state party in the conflict and possibly also the irregular forces. The state party will not resort to barbaric tactics regardless what the enemy does if it has incentive to maintain its good reputation and legitimacy globally or to avoid personal criminal sanctions against its officials. Even if during the conflict it is deemed the aggressor, the powerful state party can be expected to seek to preserve or gain a reputation for compliance with the laws of warfare. As George Downs and Michael Jones have pointed out, states have multiple reputations and may use high reputation in one area to compensate for their low reputation in another area.41 Reputation is also a matter of degree, not a binary quality. Since third-party observers often address both ad bellum and in bello considerations, the permeation of ad bellum considerations into the jus in bello proportionality analysis could create a rather sophisticated and effective constraint on the stronger regular army. What the traditional law takes for granted—that in bello, all military goals are equally and always legitimate—can now be questioned by the new emerging assessors and indirect enforcers of the law. The second argument rejecting the proposed linking of in and ad bellum takes a moral standpoint. The standard argument sets out from the assumption that the detachment of jus in bello from ad bellum considerations is moral because of the equal protection jus in bello accords to combatants and non-combatants regardless of their affiliation. Michael Walzer calls it “the moral equality of soldiers” who have “an equal right to kill.”42 Unequal application of the law is problematic because it strips combat-

39 40 41

42

See Dinstein, supra note 30, at 891. See Yitzhak Benbaji, The War Convention and the Moral Division of Labour, 59 Phil. Q. 593 (2009). See George W. Downs & Michael A. Jones, Reputation, Compliance and Development, in The Impact of International Law on International Cooperation 117 (Eyal Benvenisti & Moshe Hirsch eds., 2004). Michael Walzer, Just and Unjust Wars 34, 41 (3d ed. 2000).

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942

ants and non-combatants belonging to the aggressive side of protection, despite their lack of responsibility for their leaders’ aggression.43 There are two moral objections to this argument for jus in bello equality, which also support the injection of ad bellum considerations into in bello analysis. The first objection simply refuses to accord equal moral weight to the pursuit of unjust aggression.44 The second moral objection challenges the depiction of jus in bello as evenly balanced. The focus on the law’s impartiality between the different combatants is misleading when one takes into account the disparity in arms between the strong and the weak adversaries. In asymmetric warfare, the two adversaries are actually treated differently by the law’s apparent impartiality. The laws of war are inherently biased in favor of the stronger armies that can translate their relative economic power into military gain. The weaker party that fights for a just cause must play by the rules that make its defeat inevitable. The burden of obeying the law—and even the very burden of insulating jus in bello from ad bellum considerations—rests, therefore, on the shoulders of the weaker side. It is small wonder that the constituency of the weak finds the insulated jus in bello morally corrupt. Indeed, weaker communities might be more inclined to subscribe to a law that takes into account also the justness of the cause. Even those philosophers who objected to moral soundness of the distinction between in bello and ad bellum accepted that the laws of war must maintain the distinction on pragmatic grounds.45 However, as argued above, this moral concession to practical constraints is not imperative in conditions of asymmetric warfare, where dyadic reciprocity disappears and alternative mechanisms for assessing justness of cause exist. The availability of third-party institutions to enforce compliance with the law and identify on which side justice lies releases the moral assessment from the shackles of pragmatic reasoning. It is crucial to note that the injection of ad bellum considerations into the analysis of jus in bello’s vaguer concepts increases rather than diminishes limitations on the use of force by the parties. The comprehensive balancing of competing considerations say, for example, in determining excessive harm to civilians or targeting of individuals “for such time as they take a direct part in hostilities”46 would not provide either side with greater freedom of action or impose greater risks on non-combatants. Quite the contrary: a party would have to convince third parties that its military operations were aimed at legitimate causes in order to justify the military goals it pursued.47 43 44

45 46

47

But see Benbaji’s criticism and alternative explanation, supra note 40. See Jeff McMahan, The Ethics of Killing in War, 34 Philosophia 23, 27-28 (2006); see also Thomas Hurka, Proportionality in the Morality of War, 33 Phil. & Pub. Aff. 34, 44 (2005). Hurka, supra note 44, at 45; McMahan, supra note 44, at 729-30. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 51(3), June 8, 1977, 1125 U.N.T.S. 3. Compare with the Rome Statute’s definition, which proscribes “clearly excessive [damage to civilians] in relation to the concrete and direct overall military advantage anticipated.”

46 Eyal Benvenisti, The Law on Asymmetric Warfare

This fuller account of jus in bello proportionality analysis48 focuses not only on the necessity of the collateral harm to non-combatants but also on the legitimacy of the pursuit of the military goals. This is not to suggest that whatever an aggressor does would be tainted as a jus in bello violation and that its population would become fair game for the enemy. Once thrown into combat, combatants belonging to the aggressor would still be entitled to protect themselves and their population from attacks and their defensive military goals would still be regarded as legitimate. Moreover, the party that initially defended itself against aggression might subsequently overreact or reject opportunities to settle the conflict, at which point, its margin of discretion will become more limited. Obviously, the basic rules of jus in bello need not change: the prohibitions on intentionally killing non-combatants, on denying quarter, and so on must remain insulated from ad bellum considerations. Several objections to this development of jus in bello can be expected. For example, the reliance on third parties for impartiality and skillfulness in assessing the combatants’ actions raises concern, as do the complexity of the combined ad bellum/ in bello assessment and the practical challenge of addressing the military demand for “a single, widely respected grab-bag of rules that are inherent in the idea of military professionalism.”49 But these are not insurmountable hurdles. Third parties are simply the best available means for monitoring compliance with the law in asymmetric transnational armed conflicts, and new modalities, like the increasing use of commissions of inquiry, could improve these means. Regular armies can at least partially internalize the risks of misjudgment (their own or the third parties’) by relying on professional legal advice before, during, and after conflicts to compensate for the unavailability of clear rules.50 Armies also engage some of those external monitors—

48 49 50

Rome Statute of the International Criminal Court art. 8(2)(b)(iv), opened for signature July 17, 1998, 2187 U.N.T.S. 90. According to footnote 36 of the International Criminal Court’s Elements of Crimes, ICC-ASP/1/3 (part II-B) (Sept. 9, 2002), this provision “does not address justifications for war or other rules related to jus ad bellum.” See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court 163 (2003). On the difference between “thin” and “thick” meanings of jus in bellum proportionality, see Nolte, supra note 19. Roberts, supra note 9, at 962. On the importance of military manuals and their incorporation in domestic law in asymmetric warfare, see W. Michael Reisman & William K. Leitzau, Moving International Law from Theory to Practice: The Role of Military Manuals in Effectuating the Law of Armed Conflict, in 64 United States Naval War College International Law Studies, The Law of Naval Operations 1, 5-6 (Horace B. Robertson, Jr. ed., 1991); Major Jeffrey F. Addicott & Major William A. Hudson, Jr., The Twenty-Fifth Anniversary of My Lai: A Time to Inculcate the Lessons, 139 Mil. L. Rev. 153, 162-65 (1993); and G.I.A.D. Draper, Comments on Military Manuals, in National Implementation of International Humanitarian Law 202 (Michael Bothe, Peter Macalister-Smith & Thomas Kurzidem eds., 1990), reprinted in Reflections on Law and Armed Conflicts 115, 117-18 (Michael A Meyer & Hilaire McCoubrey eds., 1998). On operational legal advice and post-hostilities inquiries, see Frederic L. Borch, Judge Advocates in Combat:

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944

governments and civil society—in real time through various channels, ranging from news briefings to video clips on YouTube to fill in information gaps that they view as detrimental. In this context, the weaker party often has access to the global media. Ultimately, the introduction of ad bellum considerations into the jus in bello analysis would impose constraints on the stronger army in asymmetric transnational armed conflicts that are similar to those borne by governments fighting internal conflicts: the restrictions deriving from a comprehensive proportionality analysis of collateral civilian harm would include not only the general analysis of “excessive harm” but also the obligation of the regular army to expose its combatants to some risks to reduce the risks of civilians in the area of operations, or the screening of detainees to identify the combatants among them, and the standard of treatment of those detainees identified as combatants. B. Beyond Effective Control: A More Flexible Test for Responsibility to the Well-Being of Foreign Nationals Once the invading army has succeeded in occupying foreign territory, it becomes responsible for the welfare of the occupied population. The setting of a clear rule that spells out the circumstances in which occupation starts and the occupant’s ensuing obligations arise was triggered by the traditional perception of symmetric warfare between two regular armies. Each side was assumed to be capable of providing for the needs of the population in the territory under its control. Only when the one side had been driven out and the enemy had taken effective control of the territory would the latter be required to take charge and become responsible for the population in the territory. The underlying presupposition was that the invading army would seek to establish effective control over the enemy territory and would be able to overcome local resistance with mere police force. Under this premise, the local population would remain protected: either by its own government or by the occupant.51 This presupposition has no force in asymmetric transnational conflicts, in which the foreign invader, fearing resistance by irregulars, has no taste for establishing control with “boots on the ground,” while the weak, war-torn indigenous governments are often unable to provide for their citizens even in areas under their nominal control. The democratization of the means of destruction renders foreign presence “with boots on the ground” in foreign territory more a liability than an asset for the invader. The additional legal obligations imposed by the law on occupation only constitute further reason to avoid taking “effective control” over foreign territory. Thus, modern armies have instead developed remotely controlled equipment to obviate the need for establishing direct presence in foreign territory. As a consequence, the neat legal

51

Army Lawyers in Military Operations from Vietnam to Haiti (2001); Charles J. Dunlap, Jr., The Revolution in Military Legal Affairs: Air Force Legal Professionals in 21st Century Conflicts, 51 A.F. L. Rev. 293 (2001); and Stephen A. Myrow, Waging War on the Advice of Counsel: The Role of Operational Law in the Gulf War, 7 U.S. A.F. Acad. J. Legal Stud. 131 (1996-1997). See Eyal Benvenisti, The International Law of Occupation 4-5 (1993).

46 Eyal Benvenisti, The Law on Asymmetric Warfare

distinction between the stages of hostilities and occupation, as well as “effective control” as the key requirement for enhanced obligations of occupants to kick in, leave the indigenous non-combatant population, already exploited by irregular warfare tactics without a designated protector. That international tribunals help to maintain the disjunction between the conduct of hostilities and the stage when the invading army has established effective control over the occupied area can provide ammunition to critics of these courts who view them as upholding the interests of the more powerful states. The International Court of Justice, in its 2005 judgment in Case Concerning Armed Activities on the Territory of the Congo,52 raised the bar even higher, going beyond the traditional test of the Hague law in insisting that occupation requires not only the ability to exercise control but also the actual (rather than potential) substitution of the foreign army’s authority in place of the ousted government.53 A similar reluctance was apparent when the European Court of Human Rights interpreted the European Convention on Human Rights as applicable primarily within the state party territory, due to “the ordinary and essentially territorial notion of jurisdiction”;54 and the Court therefore stipulated that “only in exceptional cases … acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of … the Convention.”55 In the context of an armed conflict, such exceptional cases will include situations “when the respondent State, [directly or via proxies,]56 through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.”57 Such interpretations relieves strong powers fighting non-state actors in transnational armed conflicts but without exercising “public powers normally to be exercised” by governments, of their obligations as occupants under the law of occupation and of human rights obligations toward the occupied population.58 52 53

54 55 56

57 58

Armed Activities of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 1, ¶¶ 173, 177 (Dec. 19). But see Judge Kooijmans’s criticism in his separate opinion. Id. See also my criticism in Eyal Benvenisti, Occupation, Belligerent, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2009). Banković v. Belgium, 2001-XII Eur. Ct. H.R. 335, ¶ 61. Id. ¶ 67. See Loizidou v. Turkey (preliminary objections), 310 Eur. Ct. H.R. (ser. A) (1995); Loizidou v. Turkey (merits), 1996-VI Eur. Ct. H.R. 2216 (finding Turkey in control of northern Cyprus); Ilaşcu v. Moldova, 2004-VII Eur. Ct. H.R. 179 (2004) (finding Russia in “overall control” over the self-proclaimed “Moldavian Republic of Transdniestria” that had effective control over a part of Moldova). Banković, 2001-XII Eur. Ct. H.R. at ¶ 71. They are still responsible for individuals who are under their direct power (like detainees). See Armed Activities, 2005 I.C.J. at ¶ 180 (indicating that the foreign army, even if it is not formally an occupant, could still be responsible for specific violations by its troops);

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A better reading of the law would not only keep the threshold of occupation low, but also, and even more importantly, recognize obligations to protect non-combatants (and not only to prevent harm to them) also before establishing effective control with boots. In this context too there are noticeable signs of changing expectations. The Israeli disengagement from Gaza in 2005 was predicated on the requirement of “effective control” as the basis for occupation. Once Israeli forces were no longer present in Gaza, it would cease to be regarded as occupied, the argument went. But this assertion was contradicted by reactions that continued to regard Israel as responsible for the well-being of Gazans. Again, if we take the reactions to the disengagement from Gaza to be an “incident,” we could come to the conclusion that the effective control test may not be conclusive, and Israel, the foreign army, could be regarded as responsible toward the Gazans, the foreign individuals, even though a political boundary separates them. This proposition would entail that for example when an army takes precautions before launching attack, it must also contemplate the consequences of the attack in terms of the civilian population in the area that will be affected and make plans in advance for emergency assistance, burial of the dead, and provision of food and shelter. Instead of a test of effective control of the landmass, gauged by a sufficient presence of on-the-ground troops and their ability to establish effective administration, the test for enhanced obligations toward the affected population could be based on dominance in the combat zone. The Israeli High Court judgment could be viewed as a forerunner of this very principle. The Court was reviewing the legality of certain aspects of an on-going intense military operation in Gaza about a year before the disengagement. It described the fighting at that time as follows: “[T]he combat activities are on a large scale. They are intended to damage the terror infrastructure in that area … The activity taking place there includes battles with armed opponents. Many explosive charges have been directed against the IDF forces, and various weapons are being fired at them.”59 And yet despite the fact that this could hardly be described as a situation in which the Israeli army was in “effective control” of the area, the Court held: It is the duty of the military commander to ensure the supply of water in the area subject to military activities. This duty is not merely the (negative) duty to prevent damage to water sources and to prevent a disruption of the water supply. The duty is also the (positive) duty to supply water if there is a shortage. … The army must do everything possible, subject to

59

Issa v. Turkey, 41 Eur. H.R. Rep. 567, ¶¶ 68-71 (2004) (“a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control”). But such specific responsibilities do not amount to responsibilities to provide and protect the indigenous population at large. HCJ 4764/04 Physicians for Human Rights v. Commander of the IDF Forces in the Gaza Strip [2004] IsrSC 58(5) 385, ¶ 1, available at http://elyon1.court.gov.il/Files_ ENG/04/640/047/A03/04047640.a03.htm.

46 Eyal Benvenisti, The Law on Asymmetric Warfare

the state of the fighting, to allow the evacuation of local inhabitants that [sic] were wounded in the fighting.60

Justice Beinisch made no distinction between invasion and occupation: [A]ny military operation requires advance preparation in order to deal with the basic requirements of the inhabitants who are in the line of fire during the fighting, or who are likely to be hurt by its consequences and ramifications. This advance preparation should take into account the humanitarian obligations to the civilian population, the possibility of harm to it, and the serious consequences that should be prevented or at least minimized. Even if it is not possible to foresee every development that may take place during military operations, there is no doubt that the basic needs of the civilian population which at a time of war are in real danger of damage to life, property and basic subsistence, are known and foreseeable. Therefore, within the framework of the operative planning of a military operation, the army must also take into account that part that guarantees the fulfillment of the humanitarian obligations to the civilian population, which is caught between the cynical exploitation of terrorists without any inhibitions, and exposure to the activity of a military force operating against the terror infrastructure.61

A more flexible test of applicability of enhanced obligations toward the non-combatant population can be derived not only from jus in bello but also from the jus post bellum itself. Certainly, the text of the 1907 Hague Regulations endorses the territorial test. The Hague test requires that a territory be “actually placed under the authority of the hostile army [and that the occupation] extends only to the territory where such authority has been established and can be exercised.”62 But the text of the Fourth Geneva Convention of 1949 is more amenable to a flexible reading because although it enumerates obligations toward enemy civilians who find themselves “in the hands” of a foreign army,63 it obviously cannot be referring only to actual physical contact. At the very least, an expanded interpretation of being “in the hands” of a foreign army is possible. An army can, for example, expel people from their homes not only by actually placing them on trucks and driving them away but also by instructing them from afar to leave their homes; it would be ridiculous to suggest that Article 49 of that Convention that proscribes deportations of enemy civilians would be inapplicable in such a case.64 Similarly senseless would be the interpretation that only armies

60 61 62 63 64

Id. ¶¶ 15, 23 Id. (Beinisch, J., concurring). Hague Regulations, supra note 17, art. 42. Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. See the determination of the ICTY Trial Chamber in Prosecutor v. Naletilić & Martinović, Case No. IT-98-34-T, Judgment, ¶ 221 (Mar. 31, 2003) (reasoning that “Otherwise civilians would be left, during an intermediate period, with less protection than that attached to them once occupation is established”).

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that actually substituted the ousted government in a foreign territory are required to provide food and shelter to persons protected by the Fourth Geneva Convention.65 But even a broader re-reading of the old Hague law on occupation could support a broader interpretation of occupation. At the heart of the traditional law of occupation was not only concern for individuals, but also—perhaps primarily—considerations related to maintaining the bases of power of the respective sovereigns. Radical modification of the status quo in the occupied territory could severely undermine the ability of the ousted government to reclaim its authority, as well as undermine stability in neighboring countries. The law of occupation was to a great extent a mutual commitment of sovereigns to maintain the status quo. It was the wartime gap-filler for a system that allocated both authority and responsibility among sovereigns, an idea articulated by Max Huber, who was the sole arbitrator in the famous Las Palmas arbitration of 1928. Sovereignty, according to Huber, is not only a right: “This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory.”66 As Reisman has elaborated, the sovereign “has important obligations to other states which are the very basis of its claim to territorial sovereignty.”67 The identification of the occupant was, therefore, also key to identifying the actor responsible for acts and omissions emanating from the occupied territory. At the time, effective control was a necessary element for recognizing such responsibility for such responsibility to arise. Given contemporary technology and weaponry, on the one hand, and the proliferation of weak or failing regimes, on the other, this neat allocation of responsibility based on physical control of territory does not serve global interests, because the author of potential instability (or stability) does not necessarily have actual presence in the territory. There is thus a need to redefine the rules of allocating responsibilities. The most sensible one would seem to be a rule that interprets authority as “power” (rather than “control” or “jurisdiction”), to be determined based on the consequences of the actual exercise of power in a given territory. A state that exercises its power in

65

66 67

This point is exemplified by a judgment handed down by the Israeli Supreme Court that ruled that while Israel no longer has effective control over Gaza, it is nevertheless required to ensure the welfare of the inhabitants of Gaza, based on obligations derived from the state of warfare that currently ensues between Israel and the Hamas organization which controls the Gaza Strip; these obligations also stem from the degree of control that the State of Israel has at the border crossings between it and the Gaza Strip; and also from the situation that was created between the State of Israel and the territory of the Gaza Strip after years of Israeli military control in the area, following which the Gaza Strip is now almost totally dependent on Israel for its supply of electricity. See HCJ 9132/07 Ahmed v. Prime Minister, ¶ 12 (Jan. 30, 2008), available at http://elyon1.court. gov.il/Files_ENG/07/320/091/n25/07091320.n25.pdf. Island of Palmas Case (U.S. v. Neth.), 2 R. Int’l Arb. Awards 829, 839 (1928). Reisman, supra note 13, at 51.

46 Eyal Benvenisti, The Law on Asymmetric Warfare

a foreign ungoverned or partly governed land will be regarded as bearing at least the basic obligations borne by an occupant. It is possible to envision a parallel extension in the law on human rights. The allocation of responsibilities based on effective control has also been founded on physical control either directly or by proxy. But this interpretation, too, derived from a binary conception of the possible bearers of responsibility: either the sovereign or the foreign actor that effectively controls the territory. Such a neat allocation is useful for identifying the responsible actor among several, but it makes limited sense when it leaves none responsible. Acceptance of more relaxed conditions for the applicability of humanitarian and human rights obligations could be understood from the recent authorization given by the United Nations to states acting against pirates based in Somalia. Security Council Resolution 185168 authorized land-based operations while “decid[ing] that … States and regional organizations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia … may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea … .”69 The Resolution further added that “any measures undertaken pursuant to the authority of this paragraph shall be undertaken consistent with applicable international humanitarian and human rights law.”70 No doubt, even if actions against pirates were to take place on Somali territory, it is highly unlikely that foreign states would thereby establish effective control in the traditional sense. Nevertheless, despite the absence of such control, the Security Council has recognized the potential applicability of both humanitarian and human rights obligations to operations with respect to pirates or Somali citizens. IV. Conclusion: The Law on Asymmetric Transnational Armed Conflict as Requiring Distinctive Treatment The writings of Michael Reisman offer many new ways to reread the laws on war. With the emergence of significant challenges to the regulation of military measures against non-state actors, he has noted, it was only a matter of time until claims to reassess the law would garner attention and even prominence. As Reisman suggests, when discussing the jus ad bello aspect of the conflict with non-state actors, A critical factor in the acceptance and incorporation of a new claim into the corpus of international law is whether it serves the common interests of the aggregate of actors. Thus, the responsibility of the international lawyer here is to assess innovative claims carefully for their contribution, in present and projected contexts, to the essential goals of law.71

68 69 70 71

S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008). Id. ¶ 6. Id. Reisman, supra note 1, at 89.

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When armed conflicts were the business of professional armies detached from population centers and governed by reciprocity, dichotomies made eminent sense. They enabled enemies to communicate their mutual expectations. Binary messages—“yes” or “no” to the disproportionate killing of non-combatants—were feasible and effective. But most contemporary conflicts are different. The asymmetric conditions require a different type of regulation, one that is closer to the law enforcement model than to the laws of war, because the regulated activity involves non-state parties that challenge the stronger regular army. The powerful actor in asymmetric warfare must acknowledge its institutional obligations toward the civilians vulnerable to its military might. The discretion it has under the law to prevent “excessive harm” to civilians and to decide which precautions to take before an attack, as well as the discretion it holds with respect to the additional requirements suggested in this essay, require a reliable system of scrutiny that could lower the risk of a détournement de pouvoir. Three types of norms exist to restrict this discretion and ensure accountability: remedial norms addressing the consequences of breaching the standards; institutional norms that offer procedural guarantees designed to develop the invading army’s capacity to implement the general norm; and a sub-set of absolute rules prohibiting specific measures, such as using humans as shield or carrying out reprisals against civilians.72 The persistence of binary barriers between the different sets of norms served the interests of the stronger powers to blur their responsibilities beyond their national boundaries. It enabled them to develop the law on internal armed conflict while maintaining their privileged position unfettered by human rights obligations and other responsibilities toward foreign citizens. But the further development of the law does not lie exclusively in their hands, and it is not beyond hope that third parties such as international and national courts will shape the law to adapt it to the unique challenges of asymmetric transnational armed conflicts.

72

Reisman has argued that states should compensate non-combatants victims or their survivors, even if the actions of the damage-feasor did not violate the laws of war. See W. Michael Reisman, The Lessons of Qana, 22 Yale J. Int’l L. 381, 397 (1997). For a survey of the different types of norms see Eyal Benvenisti, Human Dignity in Combat: The Duty to Spare Enemy Civilians, 39 Isr. L. Rev. 81, 97-108 (2006).

Chapter 47 Precautionary Self-Defense and the Future of Preemption in International Law Elli Louka

I. The Al Kibar Incident On September 6, 2007, Israel bombed a target in Eastern Syria located in the Al Kibar area1 close to the Iraqi border.2 The attack and the reasons for it were covered in secrecy and there was wild speculation in the media that the target might have been a nuclear reactor.3 Information about the incident was restricted to some officials, and the Israeli press was prevented from publishing information about the incident.4 After Israel’s raid, satellite images showed the site being bulldozed clear in an alleged attempt by Syria to destroy evidence regarding the facility.5 In late October 2007, a nongovernmental organization successfully located the site through satellite imagery

1 2

3

4 5

The Al Kibar facility was located in an isolated desert region of eastern Syria called Dayr az Zawr close to the Euphrates River. CNN first reported the strike as an attack targeting Hezbollah militants. See Syria Complains to UN About Israeli Airstrike, CNN.com, Sept. 11, 2007, http://edition.cnn. com/2007/WORLD/meast/09/11/israel.syria (last visited Aug. 23, 2009). In a letter to U.N. Secretary-General Ban Ki Moon, Syria called the raid “a breach of air space of the Syrian Arab Republic.” There was speculation that about ten North Koreans working at the facility died but these reports remained unverified. See Tak Kumakura, North Koreans May Have Died in Israel Attack on Syria, NHK Says, Bloomberg.com, Apr. 28, 2008, http://www.bloomberg.com/apps/news?pid=20601101&sid=aErPTWRFZpJI&refer=jap an (last visited Aug. 23, 2009); see also Uzi Mahnaimi & Sarah Baxter, Israelis Seized Nuclear Material in Syrian Raid, Times Online, Sept. 23, 2007, http://www.timesonline. co.uk/tol/news/world/middle_east/article2512380.ece (last visited Aug. 23, 2009). Mark Mazzetti & Helene Cooper, Israeli Nuclear Suspicions Linked to Raid in Syria, N.Y. Times, Sept. 18, 2007, http://www.nytimes.com/2007/09/18/world/asia/18korea.html (last visited Aug. 23, 2009). David E. Sanger & Mark Mazzetti, Israel Struck Syrian Nuclear Project, Analysts Say, N.Y. Times, Oct. 14, 2007, at A1. Jonathan Marcus, US Syria Claims Raise Wider Doubts, BBC, Apr. 25, 2008, http://news. bbc.co.uk/2/hi/middle_east/7366868.stm (last visited Aug. 23, 2009).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 951-987.

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and claimed that it was an nuclear reactor that was under-construction; others, however, disputed this claim.6 The media saw the attack on the alleged Syrian nuclear reactor as a reaffirmation of Israel’s deterrent capability in the Middle East7 and as a reiteration of the Begin doctrine, named after Israel’s Prime Minister Menachem Begin. Based on that doctrine, Israel is not to tolerate its enemies’ acquisition of nuclear weapons. Israel applied the Begin doctrine in 1981 when it attacked Iraq’s nuclear reactor, Osiraq,8 a few months before it became operational. “Begin referred to the [Osiraq] strike as an act of ‘anticipatory self-defense at its best.’”9 The day after the Osiraq attack, Israel presented a letter to the U.N. Security Council describing the rationale for the attack. The message transmitted was that the attack was not an ad hoc response to a threat but a long-term national commitment.10 Based on the precedent of Osiraq, the Al Kibar attack was viewed as a reaffirmation of Israel’s commitment to the Begin doctrine and its deterrent capability. The attack was meant to send a clear message to Syria, and potentially Iran, that Israel would not tolerate nuclear weapons, other than its own, in the region.11 While Syria must have chemical and biological weapon programs, the acquisition of nuclear weapons is the “real red line” that other states in the region are not to cross. In contrast to what it had done after the Osiraq attack, Israel kept silent after the Al Kibar attack12—probably

6

7

8

9 10

11 12

Syrian Nuke Site Images Claim Scrutinized, CBS News, Oct. 24, 2007, http://www.cbsnews.com/stories/2007/10/24/world/main3402004.shtml?source=related_story (last visited Aug. 23, 2009). The Institute for Science and International Security (ISIS) obtained the satellite imagery from DigitalGlobe, a commercial provider of satellite imagery. See David Albright & Paul Brannan, Inst. for Sci. & Int’l Sec., The Al Kibar Reactor: Extraordinary Camouflage, Troubling Implications 2 (2008), available at http://www.isis-online.org/publications/syria/SyriaReactorReport_12May2008. pdf. See, e.g., Israel Says Deterrent Ability Recovered After Syria Strike, Agence France Press, Sept. 16, 2007, http://afp.google.com/article/ALeqM5iPSxU5Nlch6Nzo-6RPwuhDbjZb1Q (last visited Aug. 23, 2009). Bret Stephens, Op-Ed, Osiraq II?, Wall St. J., Sept. 18, 2007, available at http://www. opinionjournal.com/columnists/bstephens/?id=110010619; see Leonard S. Spector & Avner Cohen, Israel’s Airstrike on Syria’s Reactor: Implications for the Nonproliferation Regime, 38 Arms Cont. Today (July/August 2008), available at http://www.armscontrol.org/act/2008_07-08/SpectorCohen. Spector & Cohen, supra note 8. See generally Ministry of Foreign Aff. & Atomic Energy Comm’n (Off. of the Prime Minister), Gov’t of Israel, The Iraqi Nuclear Threat—Why Israel Had to Act (1981). Sanger & Mazzetti, supra note 4. Israelis Upset U.S. Divulged Strike Details, Wash. Times, Apr. 25, 2008, http://www. washingtontimes.com/news/2008/apr/25/israelis-upset-us-divulged-strike-details (last visited Aug. 23, 2009).

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

because of concerns of potential retaliatory strikes by Syria.13 Israel did not provide an account of the strike and never formally confirmed that the strike even happened. There was speculation that Israel’s Al Kibar attack was launched with the United States’ approval, though the United States denies giving advance approval for the attack.14 The United States must have at least collaborated15 with Israel on the corroboration of intelligence information before the raid.16 According to news sources, the United States administration was internally divided and concerned about the ramifications of a preemptive strike in the absence of an imminent threat.17 The air raid was so highly classified that the United States refused to publicly acknowledge it after it happened.18 On April 24, 2008—eight months after the attack—United States intelligence agents briefed the United States Congress and the International Atomic Energy Agency (IAEA) about the nature of the Syrian facility attacked by Israeli forces. The building bombed by the Israeli forces on September 6, 2007 was a gas-graphite reactor based on a North-Korean design19 that was similar to, but not an exact copy of, the Yongbyon reactor of North Korea.20 When operating at full power, such reactors can produce enough plutonium to produce a nuclear weapon every one or two years. While the full extent of North Korea’s assistance in building the reactor was unknown, North Korea was suspected of providing engineering assistance and reactor components, but not a turnkey facility. The reactor building was camouflaged using a fake roof and surrounded by walls to make it appear like a regular building. Ground photos claimed to have been taken on site between 2002 and 2003 seemed to prove that camouflage had been used.21 Satellite photos taken just after the site’s destruction identified three components of a graphite reactor: the reactor core, the

13 14 15

16 17 18

19

20 21

Korea and Syria: Oh What a Tangled Web They Weave, Economist, May 1, 2008, at 68. Id. The close collaboration between the United States and Israel has led some to claim that Israel often acts as a surrogate for the United States. See Former U.N. Ambassador John Bolton Gauges Global Impact of Gaza Crisis, FoxNews.com, Dec. 30, 2008, http://www. foxnews.com/story/0,2933,473968,00.html (last visited Aug. 23, 2009). Glenn Kessler & Robin Wright, Israel, U.S., Shared Data on Suspected Nuclear Site, Wash. Post, Sept. 21, 2007, at A01. Sanger & Mazzetti, supra note 4. High Level Debate Stalled Syria Air Strike: US was Concerned over Intelligence, Stability to Region, Officials Tell ABC News, ABC News, Oct. 5, 2007, http://abcnews.go.com/ WN/story?id=3695754&page=1 (last visited Aug. 23, 2009). Off. of Dir. of Nat’l Intelligence, Background Briefing with Senior U.S. Officials on Syria’s Covert Nuclear Reactor and North Korea’s Involvement, at 5, Apr. 24, 2008, available at http://www.dni.gov/interviews/20080424_ interview.pdf [hereinafter Background Briefing]. Based on the briefing, North Korea’s and Syria’s cooperation dated as early as 1997. Id. at 4. Id. at 5.

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spent fuel pond and the heat exchange system.22 There was no evidence, however, of the presence of nuclear fuel in the reactor. The building had neither the electrical supply system nor ventilation and the cooling system to help officials ascertain beyond doubt that it was a nuclear reactor.23 The international community barely reacted to the attack. In his first public comments after the raid, Syria’s President Bashar al-Assad acknowledged that Israel dropped bombs on a building that was related to the military but not in use.24 Nevertheless, the fact that Syria rushed to bulldoze earth over the building after the attack intensified suspicions that the building could not have been merely a retired military facility. Syria claimed that the United States’ allegations about the facility being a clandestine nuclear reactor were aimed at generating another Middle East crisis.25 Syria further accused the United States of complicity in the raid.26 Neither Iran nor any Arab state condemned the raid; only North Korea issued a protest. The belated release of information about the event, and the nature of the facility attacked, elicited a response from the IAEA. The IAEA released a statement that mentioned, inter alia, that: The Director General deplores the fact that this information was not provided to the Agency in a timely manner, in accordance with the Agency´s responsibilities under the Nuclear Non-Proliferation Treaty (NPT), to enable it to verify its veracity and establish the facts. … In light of the above, the Director General views the unilateral use of force by Israel as undermining the due process of verification that is at the heart of the non-proliferation regime.27

On May 28, 2008, the United States asked the IAEA to broaden its search for secret nuclear facilities in Syria and provided the agency with intelligence information about three other sites to investigate.28 The IAEA visited Syria between June 22 and June 24, 2008. The IAEA experts came back to the IAEA headquarters with environmental samples from the Al Kibar site, but they were not allowed to visit the other three sites. 22

23 24 25

26

27 28

The purpose of the heat exchange system is to transfer heated carbon dioxide gas from the reactor core to water drawn from the river close-by. See Albright & Brannan, supra note 6, at 26. Background Briefing, supra note 19, at 2; see also id. at 20. Sanger & Mazzetti, supra note 4. Syria: U.S. Nuclear Reactor Allegations Aim to Create Mideast Crisis, Hararetz.com, May 3, 2008, http://www.haaretz.com/hasen/spages/980214.html (last visited Aug. 23, 2009). Ewen MacAskill & David Batty, UN Censures US and Israel over Syria Nuclear Row, Guardian, Apr. 25, 2008, http://www.guardian.co.uk/world/2008/apr/25/syria.usa (last visited Aug. 23, 2009). Press Release, Int’l Atomic Energy Agency [IAEA], Statement by Mohamed El Baradei, IAEA Director General (Apr. 25, 2008). Joby Warrick & Robin Wright, Search is Urged for Syrian Nuclear Sites: U.S. Presses U.N. on 3 Alleged Facilities, Wash. Post, May 29, 2008, at A14.

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

The inspection’s purpose was to collect environmental samples to verify whether, as a result of Israel’s attack, radioactive materials or graphite had been dispersed into the environment; evidence that the facility destroyed was indeed a nuclear reactor.29 Analyses of the environmental samples taken at Al Kibar have revealed a significant number of anthropogenic uranium particles, but have not clarified what the human source of the uranium might be. Uranium particles by themselves do not irrefutably demonstrate the existence of a nuclear reactor in the area, and Syria claimed that the Israeli missiles that destroyed the building might have been the source.30 Moreover, the layout and dimensions of the building’s containment structure appear similar to those required for a nuclear reactor’s biological shield, and the building’s overall size was sufficient to conceal a 25 MWth reactor. The IAEA conducted an assessment of the water-pumping infrastructure and concluded that the pumping capacity was adequate for a 25 MWth reactor, and that there was sufficient electrical capacity to operate the pumping system.31 The IAEA has repeatedly requested access to three other facilities related to the alleged Al Kibar; requests that Syria has denied. Based on satellite imagery and landscaping activities, the removal of large containers has taken place following the agency’s requested access to these facilities.32 Based on the information provided to the agency by November 2008 (the building’s characteristics and the connectivity to adequate pumping capacity of cooling water similar to those required for a nuclear reactor), it could not be excluded that the building destroyed by Israeli forces on September 2007 was a nuclear reactor. The IAEA has asked Syria to produce documentation about the building’s function and the nature of the three other facilities to which the IAEA has requested a visit. The agency has called on all states to produce any information they may have, including satellite imagery, and allow the agency to share that information with Syria.33

29 30

31 32

33

George Jahn, Diplomats: Syria Passes First Test of Nuclear Probe, Associated Press, Sept. 20, 2008. See IAEA, Report by the Director General, Implementation of the NPT Safeguards Agreement in the Syrian Arab Republic, ¶ 12, IAEA Doc. GOV/2009/9 (Nov. 19, 2008) [hereinafter Syria NPT Report]. Id. ¶¶ 10-11. Id. ¶ 14. In the meantime, the Director General of the IAEA told the Board of Directors that IAEA’ s main contact in Syria had been killed and that this would slow down the IAEA’s work in Syria. The person killed facilitated the IAEA’s access to Syria’s alleged nuclear facilities. It has been speculated that the Director General implied the assassination of Brigadier General Mohammad Suleiman, a senior security adviser to President Bashar al-Assad, at a beach resort, in the city of Tartous in Syria. Suleiman was viewed by the intelligence sources as in charge of Syria’s nuclear and chemical weapons program. See Mark Heinrich & Sylvia Westall, Assad Aide Killing Hurts U.N. Probe in Syria: Diplomats, Reuters, Sept. 25, 2008, http://www.reuters.com/article/topNews/ idUSTRE48O6W720080925?sp=true (last visited Aug. 23, 2009). Syria NPT Report, supra note 30, ¶¶ 16-19.

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II. 1981 to 2007: From Osiraq to Al Kibar 956

The attack on Syria’s reactor was Israel’s second attack at a would-be nuclear reactor. More than a quarter of a century prior, Israel attacked a reactor in Iraq. On June 7, 1981, Israeli aircraft attacked and destroyed a Tammuz 70 MWth reactor, the socalled Osiraq reactor, which France had built for Iraq in the Tuwaitha research center south of Baghdad, just before nuclear fuel was introduced to enable the commencement of the reactor’s operations. Israel suspected that the reactor would be used to produce nuclear weapons and had attempted to dissuade France from providing Iraq with the reactor.34 There are many commonalities between the Osiraq and Al Kibar incidents. Both attacks were planned so as to minimize collateral damage and neither provoked an immediate retaliation by the attacked state, which made them appear, at least in the short-term, successful. There are, however, differences between the two incidents as explained below. A. Nature of Facility The Osiraq attack involved a facility constructed openly and placed under the IAEA safeguards system.35 On other hand, the Syrian facility was allegedly a clandestine nuclear reactor. If the facility was indeed a nuclear reactor, Syria should have notified

34

35

Israel had engaged in a number of overt and covert actions in order to prevent the building of Iraqi reactor. It was speculated, for instance, that Israeli agents destroyed the reactor’s core when it was still located in Toulon waiting to be shipped to Iraq, and that Israeli agents might have been involved in the assassination of key scientists. At the instigation of the Israeli government, the Israeli press launched a crusade against the building of the reactor. See Amos Perlmutter et al., Two Minutes over Baghdad 68-71, 73-75 (1982). The Nuclear Non-Proliferation Treaty regime’s inspection system is based on a safeguards system that gives significant latitude to sovereign states regarding verification that their nuclear programs are not used for weapons proliferation. States may, for instance, determine the extent of inspections they will allow within their territory. See IAEA, Safeguards System of the International Atomic Energy Agency, available at http://www.iaea.org/OurWork/SV/Safeguards/safeg_system.pdf; IAEA, The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/153 (June 1972) [hereinafter INFCIRC/153]; Department of Safeguards, IAEA, Safeguards: Staying Ahead of the Game 19 (July 2007); IAEA, Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards, IAEA Doc. INFCIRC/540 (Sept. 1997); see also IAEA, Plan of Action to Promote the Conclusion of Safeguards Agreements and Additional Protocols (2008).

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

the IAEA about its construction in accordance with its safeguard agreement with the agency.36 B. Threshold of Imminent Threat: Technology and Secrecy The facility attacked by Israeli forces in Syria was much further from completion than the Osiraq facility. It would have been years before Syria could use the reactor to produce spent nuclear fuel that could then be reprocessed into bomb-grade plutonium at a separate facility. But the Osiraq reactor was not a ready-made nuclear weapon either. The reactor was a light-water moderated reactor—meaning that it was not designed for plutonium production. Iraq was dependent on France to provide fuel for the reactor and, given the France’s conditions and the IAEA safeguards, it would have been difficult for Iraq to divert nuclear fuel for the secret production of plutonium.37 Launching a defensive attack on a weapons proliferation activity requires that an attack from that activity be imminent.38 Crossing a technological threshold could be 36

37

38

The agreement that Syria signed with the IAEA was the initial safeguards agreement based on INFCIRC/153. See INFCIRC/153, supra note 35. According to article 41 of that agreement, Syria is to provide the IAEA with design information regarding new facilities “as early as possible before nuclear material is introduced into a new facility.” See IAEA, Agreement of 25 February 1992 between the government of the Syrian Arab Republic and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/407 (July 1992). Before 1992, the phrase “as early as possible before nuclear material is introduced into a new facility” was interpreted to mean that design information on new facilities should be provided to the IAEA no later than six months before the introduction of nuclear material into a new facility. This interpretation was included in the General Parts of the Subsidiary Arrangements that were attached to each safeguards agreement. In 1992, however, the IAEA’s Board adopted a new interpretation of this provision. According to this new interpretation, the design information on new facilities is to be provided to the agency as soon as the decision to construct or authorize construction of a new facility is made—that is, before construction actually begins. See IAEA, Strengthening of Agency Safeguards: The Provision and Use of Design Information, IAEA Doc. GOV/2554/ Attachment 2/Rev.2 (Apr. 1, 1992). This new interpretation was adopted as a confidence measure to safeguard the peaceful character of new facilities. Providing information before construction takes place should give the IAEA enough time for the application of its safeguards system. All non-nuclear weapon state parties to the NPT were required to adapt their related Subsidiary Arrangements to take into account this new interpretation. Based on this new interpretation on the provision of information on the design of new facilities before even construction begins, Syria was in violation of its safeguard agreement with the IAEA assuming it was building a nuclear reactor without notifying the IAEA, something that to this current date Syria denies. Dan Reiter, Preventive Attacks Against Nuclear, Biological, and Chemical Weapons Programs: The Track Record 8 (Ctr. for Int’l Sec. Stud. at the Univ. of Pitt., Working Paper, 2006), available at http://www.ridgway.pitt.edu/working_papers/hittingfirst/Reiter20 formatted20final.pdf. See infra Part 3.

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used as evidence that an attack may be imminent.39 If Osiraq offers an indication, the technological threshold for nuclear weapons programs seems to be quite low, reached even before a nuclear weapons program is in the works. The threshold seems to be from the moment a country is finalizing a nuclear reactor if, simultaneously, there are strong suspicions that such a reactor could be used to produce nuclear weapons. For example, the primary consideration in launching the Osiraq attack was intelligence that the nuclear reactor was about to become operational and that Iraq would no longer be dependent on France for operating the reactor. At the same time, Israeli action could not have taken place after the fuel was loaded in the reactor. After loading the fuel, an attack would have been prohibitive because of the catastrophic potential of radiological fallout. Therefore, there was a window of opportunity—after the reactor’s completion but before the loading of the nuclear fuel into the reactor— where Israel’s attack could have taken place. Israel took advantage of this window of opportunity. The technological threshold assumed for the Osiraq reactor had not been reached in the case of the alleged Al Kibar reactor in Syria. According to United States’ intelligence sources, the Al Kibar reactor lacked the pipes and other necessary equipment that would connect it to an electricity grid. Therefore, it was not clear how the reactor would be fueled.40 Because the reactor was far from technological completion, one could claim that Israel’s attack on a nuclear reactor before its finalization simply widened the window of opportunity during which an attack on a nuclear reactor may be launched. Given that the technological threshold for the operation of the reactor was not reached, a claim that the attack was imminent could not have been persuasive. On the other hand, looking only at the technological threshold may be insufficient. If the Al Kibar facility was indeed a clandestine reactor built outside the IAEA safeguards, and in violation of the safeguards agreement between Syria and the IAEA, one could not remain naïve about the reactor’s potential use. In other words, if a nuclear reactor is built in secrecy, the presumption that such a reactor would be used for military purposes is not unreasonable. If a country knows about a clandestine reactor’s existence, the question is whether it should wait for the reactor’s completion or attack while the reactor is being built. From the point of view of military necessity, choosing the first option may seem like an inefficient way to take down clandestine nuclear weapons programs at their inception. C. Methods of Execution The Osiraq attack was executed openly and generated a number of international reactions. In contrast, the Al Kibar attack was carried out covertly, to the point of creating intense speculation about whether the facility struck was indeed a nuclear reactor. Israel has neither acknowledged nor commented on the raid since its occur-

39 40

See, e.g., Robert S. Litwak, The New Calculus of Pre-emption, 44 Survival 53, 67 (2002). See supra notes 19-23.

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

rence. In contrast, in the case of Osiraq, Israel was quick to claim responsibility for the attack, which it presented as an implementation of the Begin doctrine.41 Although the Al Kibar attack was to remain covert, especially with regard to the nature of the target, maintaining the attack’s secrecy proved difficult. It was an NGO that, through the purchase of commercial satellite imagery, first argued with some credibility that the facility might have been a nuclear reactor. While the interpretation of the satellite imagery was intensely disputed, it demonstrates that it is becoming difficult for states to hide their activities from what is becoming a transparent earth. D. International Reaction The attack at the Osiraq nuclear reactor provoked an international reaction. The U.N. Security Council issued a resolution that condemned Israel’s attack but stopped short from calling it an aggression.42 The international community was critical of Israel’s actions. Israel’s attack against a nuclear reactor was the first such attack and was widely viewed as setting a dangerous precedent. The Director General of the IAEA made clear that he viewed the attack as an assault on the IAEA safeguards system. In its meeting between June 9 and June 12, 1981, the IAEA’s Board condemned Israel’s action and asked the General Conference to consider all the implications of the Osiraq attack, including suspending Israel’s privileges and rights of membership. The Board recommended that the General Conference suspended any provision of assistance to Israel under the IAEA technical assistance program. Unlike the 2007 IAEA General Conference, during which the Al Kibar incident was not even mentioned, the General Conference that convened on September 21, 1981 became the venue where IAEA member states expressed their anger at the Osiraq attack and requested that technical assistance to Israel be suspended, including suspending Israel’s rights and privileges in the IAEA. A number of Arab states introduced a draft resolution to expel Israel from the IAEA for violating article XIX (B) of the agency’s Statute.43 41

42 43

During a press conference given after the Osiraq attack, Begin mentioned the nontolerance for nuclear weapons applied to the “enemy” (not necessarily all Middle East countries). It was further mentioned that for Israel to sign the NPT the Arab states had to make peace with Israel. See Press Conference with Prime Minister Begin, I.D.F. Chief of Staff Eitan, I.A.F. Commander Irvi and Director of Military Intelligence Saguy, June 9, 1982. S.C. Res. 487, U.N. Doc. S/RES/487 (June 19, 1981). A proposition that was eventually defeated. Article XIX(B) of the Statute of the IAEA states that a member of the IAEA can have its rights and privileges suspended if found in persistent violation of the provisions of the statute of the IAEA. The United States argued that article XIX(B) could be invoked if there is a persistent violation of the statute of the IAEA. According to the United States, the attack on Iraq’s nuclear research facility was not a violation of the IAEA statute because the statute contains no provision regarding the use of force against member states’ nuclear facilities. Therefore, article XIX(B) did not provide legal grounds for suspending Israel’s membership rights. Furthermore, the United States argued that punitive action against Israel would do great harm to the

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In 1982, Arab countries proceeded to use the credentials committee (which examines the delegates’ credentials) to, in effect, exclude Israel from participating in the IAEA. More specifically, Saudi Arabia objected to the recognition of Israel’s credentials on the grounds that Israel violated both the IAEA Statute and the Charter of the United Nations, and that it was in non-compliance with the resolutions of the General Conference and the Security Council.44 In 1982, the General Conference refused to accept the Israeli delegation’s credentials, thereby effectively banning Israel from participating in the IAEA. In response, the United States, the United Kingdom and several other western delegations walked out of the conference. The United States claimed that abusing the United Nations system to carry on political vendettas was corrosively dangerous. The United States suspended its membership in the IAEA for five months and froze its funding to the IAEA until the IAEA’s Board of Governors certified that Israel could participate fully. Two months later, the IAEA’s new Director General stated that if the United States extended its suspension into the following year the IAEA’s operations could be crippled. In 1982, the IAEA provided the assurances the United States required regarding Israel’s participation, leading the United States to resume its cooperation with the IAEA in 1983.45 In contrast, in the Al Kibar incident, Arab governments refrained from commenting on Israel’s raid and did not ask for retaliation against Israel. One could surmise that many Arab governments are content that a clandestine nuclear attempt by Syria has been aborted for the time being. Iran, Syria’s closest ally in the Middle East, did not issue any comment regarding the raid. North Korea was the only state to condemn the attack. The matter was not brought to the U.N. Security Council or to the First Committee of the U.N. General Assembly, which deals with disarmament and international security. The attack was not criticized at an IAEA international meeting held from April 28 to May 9, 2008 to prepare for the 2010 Nonproliferation Review Conference. The IAEA’s Director General, however, condemned the attack.46 The muted international reaction has been attributed to the lack of official information sources about the event. The international community, however, remained passive even after the United States provided a video, which became publicly available through the internet, about the nature of the Syrian facility and the extensive briefing given to the United States Congress and to the IAEA. 47

44 45 46 47

IAEA and the non-proliferation regime. On September 26, 1981, the IAEA Conference condemned Israel for the attack and voted to suspend all technical assistance to Israel. The Conference deferred for its next session (which was held in 1982) the suspension of Israel from the exercise of privileges and rights of membership in the IAEA in case Israel had not yet complied with the Security Council’s resolution. S.C. Res. 487, supra note 42. Id. David Fischer, History of the International Atomic Energy Agency: The First Forty Years 107-08 (1997). Press Release, IAEA, Statement by Mohamed El Baradei, IAEA Director General (Apr. 25, 2008). See Background Briefing, supra note 19.

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

Certainly the specifics of the Al Kibar incident differentiate it from the Osiraq incident. In contrast with Osiraq, Al Kibar was a clandestine nuclear facility and the alleged nature of the reactor (a graphite reactor) rendered it a more credible candidate for the production of nuclear weapons. Regional politics may have played a role in the lack of Arab reaction since Syria is an isolated state with close ties to Iran. The tepid international reaction may be attributed to fears of undesirable repercussions. Learning a lesson from the Osiraq incident,48 the IAEA refrained from bringing the item to the Board because it knew that costly repercussions might follow any condemnation of Israel’s actions. It is also possible that the international community is increasingly desensitized to incidents that do not involve collateral damage and may quickly accomplish a desirable international objective—namely, promoting nonproliferation of nuclear weapons by neutralizing nuclear weapon threats at their inception. In other words, a more somber interpretation of the lack of international reaction regarding the Al Kibar attack may be a realization that these types of attacks49 are increasingly viewed as a legitimate means to surgically eliminate undesirable targets without generating civilian casualties and all the media attention that such casualties entail.50 It has been argued that Iraq’s gross violations of the Nuclear Non-Proliferation Treaty (NPT) regime,51 along with potential violations by Iran and North Korea, 48 49

50 51

The United States walked out of the agency and suspended its financial contribution. Fischer, supra note 45. A similar attack was executed against a chemical factory in Sudan. On August 20, 1998, United States Tomahawk missiles destroyed the El Shifa pharmaceutical plant in Khartoum, Sudan. The attack was launched thirteen days after the bombing of the United States embassies in Nairobi, Kenya and Dares Salam, Tanzania killed 224 people, including United States citizens. The United States claimed that the plant was linked to Osama bin Laden’s terrorist network and was producing a precursor chemical for VX nerve gas. The attack destroyed the factory, though the evidence that the factory produced chemical weapons and had links to the bin Laden’s network was assessed as weak. The United States blocked Sudan’s efforts to launch a Security Council fact-finding investigation on whether the El Shifa plant produced lethal VX gas. The United States claimed self-defense under Article 51 of the United Nations Charter. The attack generated mixed responses and there was no clear consensus that the violation of Sudan’s sovereignty was illegal. States expressed concerns mostly with regard to the use of the factory for terrorist purposes and there did not seem to be much debate about the violation of Sudan’s sovereignty. Commentary concentrated on whether the United States possessed sufficient evidence to attack the pharmaceutical plant that would support the claim that it was used in terrorist activities. See Jules Lobel, The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan, 24 Yale J. Int’l L. 537 (1999); see also Ruth Wedgwood, Responding to Terrorism: the Strike Against bin Laden, 24 Yale J. Int’l L. 559 (1999). Spector & Cohen, supra note 8. The non-proliferation regime is nested in the Nuclear Non-Proliferation Treaty and a number of export controls on ‘sensitive proliferation material’—that is, material that can be used potentially for the production of nuclear weapons. See Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161. The Nuclear

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have led traditional theories regarding the legitimacy of unilateral preemptive action to be revised. Revised, at least, in the case of clandestine nuclear facilities whose clandestine character points to their potential use for the production of nuclear weapons. In this light, the lack of international reaction could be seen as a silent endorsement of the raid, despite the fact that Israel was clearly not acting within a strict definition of anticipatory self-defense. The muted international response is, therefore, a tacit admission that the nonproliferation regime has been eroded to such an extent that the international community “breathes easier” when a state can play policeman by engaging in the unilateral and surgical removal of potential threats to international peace.52 III. Anticipatory Self-Defense and Preemption While Israel remained silent following the Al Kibar attack, which appeared to be a preemptive use of force, it openly invoked the doctrine of anticipatory self-defense in defending the Osiraq attack. Legal scholars have correctly differentiated between anticipatory self-defense (against imminent threats) and the doctrine of preemption (against future, contingent threats). As Michael Reisman and Andrea Armstrong note: The claim to preemptive self-defense is a claim to entitlement to use unilaterally, without international authorization, high levels of violence to arrest an incipient development that is not yet operational or directly threatening, but that, if permitted to mature, could be seen

52

Suppliers Group establishes controls on the export of proliferation-prone equipment and material. See Nuclear Suppliers Group Home Page, http://www.nuclearsuppliers group. org/ (last visited Aug. 23, 2009); see also Ian Anthony et al., Reforming Nuclear Export Controls: The Future of the Nuclear Suppliers Group (Stockholm Int’l Peace Res. Inst. 2007); Christopher A. Ford, The Nonproliferation Bestiary: A Typology and Analysis of Nonproliferation Regimes, 39 N.Y.U. J. Int’L L. & Pol. 937, 944-46 (2007). The attacks at Osiraq and Al Kibar are not the only attacks contemplated or executed against nuclear facilities. Such attacks were contemplated against the North Korean nuclear program but were not undertaken because of fears that they may provoke retaliation that could escalate into a full-scale war in the Korean peninsula. In addition, in the case of North Korea there was concern that the lack of accurate intelligence would increase the probabilities that not all the right targets would be hit. An attack was contemplated against the nascent Chinese nuclear program in the 1950s but the attack was not undertaken because the strategic threat of acquisition of nuclear weapons by China ceased to be that relevant. See Litwak, supra note 39, at 61, 64-65 (2002). Further attacks have been launched against facilities of weapons of mass destruction within the context of regular warfare. Five separate allied attacks were launched against Germany’s nuclear weapon programs during World War II. The goal of operation Desert Storm in 1991 was not only to liberate Kuwait from Iraq but to disrupt the weapons of mass destruction program of Iraq. Further, Operation Iraqi Freedom was ostensibly carried out based on fears that Iraq was in possession of means of mass destruction. During the 1980-88 IranIraq war, Iraq launched seven separate air strikes on Bushehr, the Iranian nuclear reactor. See Reiter, supra note 37, at 8; see also supra text accompanying note 49.

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

by the potential preemptor as susceptible to neutralization only at a higher and possibly unacceptable cost to itself.53

Preemptive action is different from anticipatory self-defense in that the latter is meant to address an imminent and manifest threat. Thus, one can confidently claim that preemptive action refers to a hypothetical and uncertain threat, while anticipatory self-defense refers to a clear and imminent threat.54 But universal, clear and unambiguous thresholds that would define the point of transition from a conjectural threat to an imminent danger are hard to factor. Clear-cut cases should exist, but they are exceptions. Countries that wish to launch a unilateral attack in an overt fashion, and with the blessing of international law, have no other option but to couch such an attack in terms of self-defense, since a unilateral war must be conducted in self-defense to be a just war under the post-World War II United Nations Charter.55 Unilateral actions taken in the name of anticipatory self-defense must meet the criteria first proposed in the 1842 Caroline case.56 Anticipatory self-defense finds its origins in the Caroline 53 54

55

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W. Michael Reisman & Andrea Armstrong, The Past and Future of the Claim of Preemptive Self-Defense, 100 Am. J. Int’l L. 525, 526 (2006). Id. According to historians, preemptive self-defense, as the term is currently used, refers more accurately to the concept of preventive war—war initiated on the basis that, while military conflict is not imminent, to delay taking action now against a threat would involve greater risk. See Lawrence Freedman, Prevention, Not Preemption, 26 Wash. Q. 1095 (2003); see also Joint Chiefs of Staff, U.S. Dep’t of Def., Department of Defense Dictionary of Military and Associated Terms 439, 435 (2008) (defining “preventive war” as a “war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk,” while a “preemptive attack” is conceived as an “attack initiated on the basis of incontrovertible evidence that an enemy attack is imminent.” (emphasis added)). According to Article 2(4) of the U.N. Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” In addition to the exception of unilateral use of force in self-defense, the only other exception provided for in the Charter for the use of force is under Chapter VII, where the Security Council can use force to preserve the peace—what has been called collective self-defense. That said, countries have engaged in reprisals to the point that some scholars have developed a framework under which states may engage in lawful reprisals. See Richard A. Falk, The Beirut Raid and the International Law of Retaliation, 63 Am. J. Int’l L. 415 (1969); see also W. Michael Reisman, Self-Defence or Reprisals? The Raid on Baghdad: Some Reflections on its Lawfulness and Implications, 5 Eur. J. Int’l L. 120 (1994). The facts of the Caroline case: During a 1837 rebellion against British occupation in Canada, rebels were assisted by United States sympathizers and the steamer Caroline was used to transport supplies between the United States and Canada. The British protested the transfer of supplies from the United States to Canada to no avail. Subsequently, British forces entered the United States took over the Caroline and sent it ablaze over the Niagara Falls. As a result of this action, several United States citizens were killed and in-

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case and United States Secretary of State Daniel Webster’s pronouncement that a state need not suffer an actual armed attack before taking defensive action. Instead, a state can engage in anticipatory self-defense (defense in anticipation of an attack) if the circumstances leading to the use of force are instantaneous, overwhelming, and leaving no choice of means and no moment to deliberate.57 The criteria for launching an anticipatory self-defense are: (1) necessity, (2) immediacy and (3) proportionality. Necessity entails the use of military force that must be restricted to attain a legitimate military objective. Proportionality has to do with the avoidance of destruction, especially civilian casualties that are disproportionate to the military goal sought. The factor of immediacy of an attack, however, remains perplexing because most states would not wait to see an opponent’s army marching against them as a demonstration that an armed attack is on the way. In the nuclear era, the imminent nature of an attack that would allow for self-defense may include credible threats of an attack that make anticipatory self-defense a necessity. It has been argued persuasively that the concept of self-defense will lose its bite in the nuclear age if a nation has to wait until a nuclear attack, which would ensure its destruction, has already been launched in order to engage in self-defense.58 On the other hand, the wording chosen for Article 51 of the U.N. Charter regarding the threshold of military offensive needed to trigger a self-defense action could be read restrictively59 to limit prescriptions of anticipatory self-defense: “Nothing in the present Charter shall impair the inherent60 right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations. …” The attack, it has been argued, has to be an ongoing attack, and anticipatory selfdefense is not provided verbatim the Charter. The International Court of Justice has read the term “armed attack” under Article 51 restrictively, in a way that would ex-

57 58 59

60

jured. The United States launched a formal complaint with the British government which claimed self-defense. In response, the United States Secretary of State Daniel Webster wrote that for a self-defense claim to be valid, the British had to demonstrate a “necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See Robert Yewdall Jennings, The Caroline and McLeod Cases, 32 Am. J. Int’l L. 82, 89 (1938). Id. Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 67, 184 (1961). It has been argued, for instance, that annoyance actions, which do not involve offensive operations by the forces of a state, do not constitute an armed attack. However, a “coordinated and general campaign by powerful bands of irregulars” with the “easily proven” complicity of a state would constitute an armed attack especially if the objective is the forcible settlement of a dispute or the acquisition of a territory. See Ian Brownlie, The Use of Force in Self-Defense, 37 Brit. Y.B. Int’l L. 183, 245 (1961). The use of the word “inherent” has been interpreted to mean that the Charter left largely unchanged the law on self-defense as it existed before the adoption of the Charter. It has been argued that Article 51 has not “extinguished” the right to self-defense as developed by customary international law and that that right is wider than the right to self-defense under Article 51.

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

clude low-level prolonged paramilitary warfare not sponsored by a state. 61 This restrictive interpretation of Article 51 has generated concerns about the functionality of the Charter in the age of state-sponsored terrorism and loosely located aggression by hard to identify, yet potent, actors.62 A. The Osiraq Incident and Anticipatory Self-Defense In the case of the Osiraq attack, the Security Council was skeptical about Israel’s claims that the attack was justified under the general rubric of anticipatory self-defense. The resolution adopted by the Security Council63 was, however, essentially an innocuous slap on Israel’s wrist since no punishment was delivered, and Israel correctly interpreted it as a license to operate in this field. A number of factors unique to the Osiraq case have led observers to view the attack as more or less justified from the point of view of anticipatory self-defense.64 These factors include the requirement of necessity: a state must have exhausted the peaceful process of dispute resolution before launching an attack on another state.65 In the case of the Osiraq attack, from Israel’s viewpoint, the process of peaceful settlement had been concluded.66 Other factors include the realities brought by the nuclear age,67 and Iraq’s verbiage regarding the annihilation of the Israeli state in the context of what some have correctly called a constant para-war in the region.68 Years after the attack, commentators have become even more celebratory.69 They evaluate the attack, from an ex-post-facto perspective, as a necessary action that decisively trimmed Iraq’s nuclear capabilities and, thus, made Iraq’s expulsion from Kuwait possible and 61

62 63 64 65 66

67 68

69

Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 53, ¶¶ 14647 (Dec. 19); Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 62 (July 9); Oil Platforms (Iran v. U.S.), 1996 I.C.J. 161 (Nov. 6); Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 93-94 (June 27). Reisman & Armstrong, supra note 53, at 525. S.C. Res. 487, supra note 42. See generally Timothy L.H. McCormack, Self-Defense in International Law: The Israeli Raid on the Iraqi Nuclear Reactor (1996). Peaceful dispute resolution is restricted by the imagination and the will of states to find compromises. Before the finalization of the reactor, Israel had used various covert and overt methods to dissuade France from proceeding with the reactor. See generally Perlmutter et al., supra note 34. McDougal & Feliciano, supra note 58. Yoram Dinstein, The Legal Issues of “Para-War” and Peace in the Middle East, 44 St. John’s L. Rev. 466, 469-70 (1970); see also The Hundred Years’ War, Economist, Jan. 10, 2009, at 9. See, e.g., Anthony D’Amato, Israel’s Air Strike against the Osiraq Reactor: A Retrospective, 10 Temp. Int’l & Comp. L.J. 259 (1996); see also Charles Pierson, Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom, 33 Denv. J. Int’l L. & Pol’y 150, 168 (2004).

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reduced the risks of engaging in the 1991 war. Professor Michael Reisman has argued that the Osiraq incident points to an amalgamation of a more permissive norm regarding unilateral preemptive actions against a state that is engaging in a program that could lead to the production of weapons of mass destruction, especially if that state has indicated its intention to use such weapons in an aggressive fashion.70 Overall, the appraisal of unilateral claims of self-defense must be contextual, and the circumstances of each case must be taken into account when assessing self-defense actions of an anticipatory nature. Such circumstances may involve situations of serial conflicts—that is, continuing conflicts characterized by “intermittent explosions of violence” that are followed by periods of relative calm (unprovoked by a formal peace process), that are interrupted by new flares of violence.71 In the case of serial conflicts, the right to preemptive self-defense should be evaluated through the lens of the right to use force in ongoing conflicts without waiting for an opponent’s specific provocation. Israel’s explanation of the Osiraq attack contained these exact contextual elements, including the fact that Iraq was the only Arab state that had not even concluded an armistice agreement with Israel.72 Since an armistice agreement was not concluded, Israel and Iraq were still formally in a state of war despite the fact that publicized, overt cases of violence had not occurred in the interim. When combined with Iraq’s verbiage of Israel’s annihilation, this was not conducive to the creation of an ambiance that would render a defensive action of a preemptive nature totally unjustifiable. Iraq’s subsequent behavior, however, of cooperating with the United States for the promulgation of a resolution acceptable to both countries, and the fact that Iraq did not engage in an immediate retaliatory act,73 may also demonstrate that with the right carrots, Iraq could have been subjected to “reformation.” It has been pointed out that Saddam Hussein, while often miscalculating, was not unreasonable and, thus, he could be deterred. Therefore, the fact that he sought to develop nuclear weapons did not necessarily mean that he was planning to use them.74 Furthermore, at the time of 70 71 72

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W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int’l L. 3, 18-19 (1999). Reisman & Armstrong, supra note 53, at 548. “Iraq has always insisted that a state of war exists with Israel. It follows that since aggression cannot be committed against a state with which a country is already at war, Jerusalem could not possibly have been guilty for a ‘crime against peace.’” Louis Rene Beres & Col. Yoash Tsiddon-Chatto, Reconsidering Israel’s Destruction of Iraq’s Osiraq Nuclear Reactor, 9 Temp. Int’l & Comp L.J. 437, 438 (1995). See Interagency Intelligence Assessment, Implications of Israeli Attack on Iraq 2, 8 (July 1, 1981). See, e.g,, Ted A. Pierson, Saddam Hussein: Operational Artist or Madman? (1998). Anticipatory self-defense based on the aggressive intentions of a country’s government is hard to justify since evaluating intentions is by itself a tricky exercise. See Brownlie, supra note 59, at 227 (“As a matter of principle and policy, anticipatory self-defence is open to certain objections. It involves a determination of the certainty of attack, which is extremely difficult to make and necessitates an attempt to ascertain the intention of a government. This process may lead to a serious conflict if there is a mistaken assessment

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

the Osiraq attack, Iraq was not a pariah in the international system and it cooperated with France and Italy, who, in turn, had responded to some of Israel’s nonproliferation concerns. After all, the Osiraq facility was a declared nuclear facility, functioning under the IAEA safeguards.75 In other words, correctly interpreting the context of a case that would legitimize a preemptive strike is difficult, especially for regimes that are not open and offer mixed signals about their intentions. Therefore, with regard to these regimes, one may wish to err on the side of precaution.76 Depending on the circumstances, this may entail a precautionary strike of a preemptive nature rather than a wait-and-see attitude. A precautionary strike of a preemptive nature is more likely when the target is clear and can be removed with a clean (surgical) attack that would leave minimal or zero casualties. A wait-and-see attitude is probably well advised when a country has already developed a number of nuclear facilities dispersed all over its territory, some of which are underground. For example, the Iranian and North Korean nuclear programs are not conducive to clean (surgical) strikes like those executed in Iraq and Syria and, therefore, they do not meet the element of proportionality required for such attacks. Professor Michael Reisman has argued that the deterioration of the Charter security regime, to which we may add the serious inadequacies of the nuclear nonproliferation regime resulting, unfortunately, from the design and practice of its creators,77 stimulates “a partial revival of a type of unilateral jus ad bellum.”78 The appraisal of

75

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of a situation.”); see also Miriam Shapiro, Preempting Prevention, Lessons Learned, 37 N.Y.U. J. Int’l L. & Pol. 357, 367 (2005). See Kristen E. Eichensehr, Targeting Tehran: Assessing the Lawfulness of Preemptive Strikes Against Nuclear Facilities, 11 UCLA J. Int’l L. Foreign Aff. 59 (2007) (arguing that although states may plan to develop nuclear weapons, those embedded in the international system are unlikely to use them). Great Britain’s legal advisors in the Caroline case included a footnote in their report to the British government that deserves to be mentioned. Regarding the notion of precaution and its use in claiming self-defense, the footnote read: “We feel bound to suggest to your Lordship that the grounds on which we consider the conduct of the British Authorities to be justified is that it was absolutely necessary as a measure of precaution for the future and not as a measure of retaliation for the past.” See Jennings, supra note 56, at 87 (emphasis in original). Despite official statements and admonishments against nuclear weapons proliferation, the attitude of states is marred by fatalism that nuclear technology will spread, bringing with it the spreading of nuclear weapons. Some have contended that states are simply not proliferation-serious. Stopping the spread of nuclear weapons is a priority for the United States policymaking but often not at the expense of other interests that loom more urgent. See, e.g., Kenneth Waltz, The Spread of Nuclear Weapons: More May Be Better (Int’l Inst. for Strategic Stud. 1981), available at http://www.mtholyoke.edu/ acad/intrel/waltz1.htm; see also Albert Wohlstetter, Spreading the Bomb Without Quite Breaking the Rules, 25 Foreign Pol’y 88-94, 145-79 (1976). W. Michael Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int’l L. 279, 281 (1985).

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such unilateral acts must not be executed in abstracto but in the context of each individual case. In other words, the inquirer must examine whether such attacks have advanced the goal of minimum order in the international system79 and whether furtherance of such a goal was done in a way that minimizes the violation of the formal system’s norms.80 Taking these two parameters as our yardstick, the Osiraq attack favored the maintenance of the minimum order, at least from the perspective of states wishing to check the imperialistic desires of a murderous—even of its own citizens—regime. Moreover, the attack could potentially be justified as anticipatory self-defense given the realities of the nuclear age.81 Jus in bello was strictly followed given that the necessity of the target was justified, and also the requirements of proportionality and discrimination with regard to the target were strictly observed. Israel understood that the rules of proportionality and discrimination could be met only in the small window of opportunity provided after the finalization of the nuclear reactor, which established the independence of the Iraqi nuclear program, and before the introduction of nuclear fuel into the reactor. Some have claimed that the long-term effect of the Osiraq attack is to strengthen the Arab states’ resolve to acquire nuclear weapons and to do so all the more secretively, as the construction of the alleged Al Kibar reactor demonstrates. One could claim, however, that the constant para-war in the region has already generated plenty of destructive capacities among all of the parties involved, and that Osiraq may have not tipped that balance that much anyway. If one appreciates Osiraq as an action in a continuum of actions that ended up with the destruction of the state of Iraq, as it understood itself pre-2003, then, from a military perspective, the attack at Osiraq was an ingenious tactical attack that alleviated the pain till the administration of the curative remedy. Maybe that curative remedy was not completely in sight in 1981 but it could have been construed as a potential future scenario. B. Appraisal of the Al Kibar Incident In today’s decentralized international system, law is a process of communication, through which those who have the role of authoritative policy-making need to generate signals about what counts as law and appropriate behavior among various international actors. This is a process of communication occurring in many different and overlapping directions. In this constant stream of communication, through words and actions, it is often difficult to distinguish between law and immaterial posturing under the pretext of generating or applying a norm.82 Through this incessant commu-

79 80 81 82

W. Michael Reisman, Article 2(4): The Use of Force in Contemporary International Law, 78 Am. Soc’y Int’l Proc. 74, 85 (1984). W. Michael Reisman, Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice, 13 Yale J. Int’l L. 171, 184 (1988). See McDougal & Feliciano, supra note 58. What pointedly has been called “legislatistic babble.” See W. Michael Reisman, Nuclear Weapons in International Law, 4 N.Y.L. Sch. J. Int’l & Comp. L. 339 (1983).

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

nication and, inevitably, a considerable amount of miscommunication,83 a number of lessons are learned, or best practices of behavior deciphered, by those who would like to be perceived as belonging to the class of international “responsible” actors.84 If Israel learned a lesson by generating a process of communication through its 1981 Osiraq attack, it is that communication through explicit statements about what is or is not justified under international law as anticipatory self-defense is not always productive. The Al Kibar attack, which was followed by complete silence on Israel’s part, demonstrates that what Israel learned from the Osiraq attack is that while it could continue to attack non-fueled nuclear reactors, it could dispense with the legal sideshow of explaining its behaviour. “Silence is eloquently ambiguous”85 and can be interpreted as a sign of silent consent or simply as a sign of indifference toward an incident, which does not meet the threshold of a neutral state response. Unprotested acts that take place in the international sphere, however, generate new legal expectations independent of whether states that failed to protest intended them to do so.86 The Al Kibar attack and the silence that followed need to be evaluated in terms of their potential to provide future guidance about the survivability of the norm of self-defense as delineated in Article 51 of the United Nations Charter. One possible interpretation is that Israel, viewing its actions as hard to reconcile even with the notion of anticipatory self-defense, dropped any such argument alluding to preserving the potency of its deterrent force.87 Since Israel’s action was tolerated, we are in essence faced with circumstances in which a precautionary use of force will be illegal de jure (based on Article 51) but will be tolerated de facto based on considerations of what is reasonable, and thus legitimate, expected behaviour. One could claim that it is reasonable and, thus, legitimate to strike at an enemy that harbors clandestine nuclear facilities in contravention of its international obligations. The easy digestion of the Al Kibar incident points to the development of a norm that surgical strikes against clandestine reactors, which are likely to be used to produce nuclear weapons, are legitimate. If this is the international norm established, the international community will refrain from condemning reasonable, zero-civilian casualty strikes that surgically remove an undesirable nuclear proliferation facility. The review executed when such strikes take place would not have to do with the lawfulness of the attack per se but

83

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Robert Jervis, Perception and Misperception in International Politics 13536 (1976) (sometimes miscommunication is generated by the failure to recognize openly the conflict between ideals and self-interests). For instance, the rhetoric of spreading democratic ideals is often confounded with need to secure energy resources. See, e.g., Karthika Sasikumar, India’s Emergence as a “Responsible” Nuclear Power, 62 Int’l J. 825, 834 (2007). W. Michael Reisman & James E. Baker, Regulating Covert Action: Practices, Contexts, and Policies of Covert Coercion Abroad in International and American Law 113 (1992). Id. See Israel Says Deterrent Ability Recovered After Syria Strike, supra note 7.

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with the proportionality of the attack—namely, whether the means with which the target was hit were proportional to the perceived threat. If the target at Al Kibar was indeed a nascent nuclear reactor, the attack could be considered a more legitimate articulation of anticipatory self-defense than was the Osiraq attack. If the facility attacked were a clandestine nuclear reactor, Syria would have been in violation of its safeguards agreement with the IAEA88 and in contravention of emerging international norms regarding the transparency of nuclear programs,89 which shift the burden of proof to states suspected of harboring secret nuclear weapons programs. These states now have the burden of proving that they do not support such programs by providing total transparency about their nuclear operations.90 Based on these norms, the burden of proof is on Syria to demonstrate that it is not working on a secret nuclear weapons program. Syria, who was the victim 88 89

90

See supra note 36 and accompanying text. The resolutions addressing Iraq’s clandestine nuclear weapons program established the requirement of total transparency about a country’s nuclear weapons program while the country is under suspicion of developing weapons of mass destruction in 1991. See S.C. Res 1441, U.N. Doc. S/RES/1441 (Nov. 8, 2002); S.C. Res 715, U.N. Doc. S/RES/715 (Oct. 11, 1991); S.C. Res. 687, U.N. Doc. S/RES/687 (Apr. 3, 1991). On the “normative ripples” of these resolutions, see José E. Alvarez, International Organizations as LawMakers 422-23 (2005); see also S.C. Res. 1540, U.N. Doc. S/RES/1540 (Apr. 28, 2004). Based on Security Council resolutions that address Iran’s nuclear program, the standard for nuclear non-proliferation goes beyond what is articulated in the IAEA’s safeguards agreements. In a 2006 resolution, the Security Council called on Iran to take steps (as required by the IAEA Board of Governors) toward making the international community confident that Iran’s nuclear program is exclusively for peaceful purposes. This requirement shifts the burden of proof to the state suspected of proliferation activities, which now has to provide evidence that it is not involved in weapons proliferation activities. In other words, while under the safeguards agreements a state is innocent until the IAEA proves it guilty, under the new regime developing through the Security Council resolutions, a state under suspicion of producing nuclear weapons is presumed guilty until it proves itself innocent by allowing a total access to its nuclear program. In essence, the state must provide what the IAEA is asking it to provide, and must do what the IAEA is asking it to do, based on the presumption that unless it has something to hide there is no reason not to. See S.C. Res. 1696, ¶ 6, U.N. Doc. S/RES/1696 (July 31, 2006); see also S.C. Res. 1803, ¶ 1, U.N. Doc. S/RES/1803 (Mar. 3, 2008) (reaffirming that “Iran shall without further delay take the steps required by the IAEA Board of Governors in its resolution GOV/2006/14, which are essential to build confidence in the exclusively peaceful purpose of its nuclear programme and to resolve outstanding questions … .”) See S.C. Res. 1718, ¶ 6, U.N. Doc. S/RES/1718 (Oct. 14, 2006) (“DPRK [Democratic Peoples Republic of Korea] shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, shall act strictly in accordance with the obligations applicable to parties under the Treaty on the Non-Proliferation of Nuclear Weapons and the terms and conditions of its International Atomic Energy Agency (IAEA) Safeguards Agreement…and shall provide the IAEA transparency measures extending beyond these requirements, including such access to individuals, documentation, equipments and facilities as may be required and deemed necessary by the IAEA.”) (emphasis added).

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

of Israel’s attack, is now the country that is under intense investigation because of its potential nuclear proliferation activities. Syria allowed belated access to the Al Kibar site; but this has not been considered sufficient enough to meet the IAEA’s transparency standards given that Syria is now suspected of nuclear proliferation activities. Syria’s legalistic arguments—that providing restricted access to the Al Kibar puts it in compliance with its safeguard agreement—have not been persuasive. The IAEA is proceeding with its investigation based on a complete transparency standard: “The Director General [of the IAEA] has called on Syria to provide the necessary transparency, including allowing visits to the requested locations and access to all available information, for the Agency to complete its assessment.”91 If Syria was indeed building a hidden nuclear facility capable of producing nuclear material suitable for nuclear weapons, pointing out the target of such weapons does not require an active sort of imagination. The threat from the Al Kibar reactor cannot in good faith be defined as an “imminent” armed attack even under a broad interpretation of anticipatory self-defense since, from the evidence presented, the reactor was far from completion. From a strategic/military perspective, however, Israel’s choice was between a “why-not-nip-in-the-bud” attitude and a “wait and see” posture. Given the facility’s clandestine nature, which left not much doubt about its potential use, a “wait-and-see” posture would be a potentially disastrous military gamble. A contextual examination of the Al Kibar attack could classify this action as preemptive self-defense, especially given the state of relations between the two states. In contrast with Iraq, Syria had at least signed an armistice agreement with Israel;92 but this has not prevented the two countries from engaging in protracted warfare through a series of proxies and sub-proxies.93 From Israel’s perspective, allowing Syria to acquire nuclear weapons during this constant state of war, when it can effectively be stopped from such acquisition as early as possible, because a legalistic threshold of self-defense may not be quite met, did not make much sense. Under Israel’s rationale, it is better to extinguish a nuclear proliferation danger, even in a nascent form, before it takes roots and grows; this could be seen as the most prophylactic and precautionary articulation of anticipatory self-defense. Furthermore, Israel could 91 92

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IAEA, Implementation of the NPT Safeguards Agreement in the Syrian Arab Republic, ¶ 19, IAEA Doc. GOV/2008/60 (Nov. 19, 2008) (emphasis added). See Israel and Syria Armistice Agreement, July 20, 1949, 42 U.N.T.S. 327. An armistice agreement means that the parties put down the arms, but it does not necessarily mean the end of the war. Accordingly, “belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.” Convention Respecting the Laws and Customs of War on Land art. 36, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631. The 2006 war in Lebanon is a case in point. The conflict lasted thirty-three days and ended through a cease-fire brokered by the United Nations Security Council on August 14, 2006. The conflict was between the Israeli military and Hezbollah paramilitary forces that were armed with advanced weapons including UAVs. Syria and Iran supplied arms to Hezbollah during the conflict. See, e.g., Conal Urquhart, Computerized Weaponry and High Morale, Guardian, Aug. 11, 2006, http://www.guardian.co.uk/world/2006/aug/11/ syria.israel (last visited Aug. 23, 2009).

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not have followed a potentially well-trodden path to communicate Syria’s allegedly clandestine activities to the Security Council or the IAEA. Extensive discussion in international fora about the authorization of collective action or unilateral self-defense is implausible in situations similar to Al Kibar. This is simply because the discussion itself will alert the rogue state and allow it time to take “evasive action,” which would prohibitively increase the risks of subsequent violations of jus in bello and the risks of casualties to the state considering taking the preemptive action.94 The fact that Israel decided to take action at Al Kibar in a semi-covert fashion by successfully imposing a media blackout based on national security purposes is very telling about the future of warfare, but it leaves international law’s role in regulating such warfare much more obscure. For example, if it were not for the United States’ revelations of April 2008, the incident could have remained shrouded in secrecy, buried in blogs about potential conspiracies. C. Covert Operations Versus Overt Operations There is an element of force in international relations, and while it can be controlled it cannot be eliminated.95 In this respect, “[l]aw acknowledges the utility and the inescapability of the use of coercion in social processes, but seeks to organize, monopolize, and economize it.”96 The law governing the regulation of international coercion needs to be updated in many ways considering the nasty but also insidious means of warfare currently available. Conventional weapons are acquiring the potency of nuclear weapons, space is heavily militarized, and people are transforming themselves into bombs—all under intense media coverage. At the same time, a virus attack on a country’s computer network, or infiltration of its power grid, can lead to a societal collapse. One wonders, therefore, how to begin to control the mix of technology, aggression and selfdestruction. A prudent course of action is not to regulate war after it has broken out but to prevent war by taking precautionary/prophylactic measures. States are offered two basic choices when they deem they need to defend themselves against real or imagined enemies or threats: – They could conduct an open war couched in terms of self-defense or anticipatory self-defense hoping to place their actions under the blessing of international law; or – They could engage in covert or semi-covert action so that, if they are lucky and any covert action does not come to light, they do not need to justify their actions.

94 95

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Reisman, supra note 70, at 17. Lawrence Freedman, The Evolution of Nuclear Strategy 459 (2003); see also John Keegan, A History of Warfare 384 (2003) (arguing that a world without disciplined armies would be uninhabitable). Reisman, supra note 78, at 279.

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

The truth of the matter is that the more difficult it is for states to believably couch their wars in terms of self-defense, the more prone they will be to conduct covert actions. If we assume that a claim of self-defense will not be credited, the nature of conflict in the future will likely involve the toleration of a significant amount of covert activity,97 especially if such activity is less likely to escalate into a full-blown war. Covert actions present some advantages. For example, covert actions are not meant to attract publicity. Therefore, they are unlikely to embarrass an adversary into retaliating. Contrarily, overt attacks can escalate into full-blown wars for the sole purpose of avenging the attacked state’s offended honor.98 Furthermore, a covert action will usually be executed so as to limit collateral damage and civilian casualties, which may generate unwanted media scrutiny. One of the goals of covert action is to minimize publicity and, thus, scrutiny. Therefore, surgical attacks that remove unwanted targets are preferable by definition to large scale events that invite nosey interference. A covert attack also further economizes on the means of communication because states do not have to justify their actions in terms of doctrines stretched hopelessly out of shape under traditional posturing about what is lawful and unlawful under international law. Covert actions, however, also entail costs, especially if they are revealed, and governments should be able to live with the consequences of their covert activity in case such activity becomes known.99 Certain covert operations could entail more casualties than cleaner overt operations.100 Covert operations collide with the principles of democratic and open societies.101 Covert action decisions are made in settings prone to groupthink and, thus, are likely to be executed erroneously.102 An overt operation makes a statement about a target’s undesirability, thereby reinforcing potentially desirable norms that should govern international relations and thus having an educative and informative function.103 For instance, the Begin doctrine regarding Israel’s intolerance toward its adversaries’ acquisition of nuclear weapons could become operational only through an overt operation. One could argue that covert action is unlawful since states should conduct their affairs transparently, and that the age of secret dealings and covert operations is long 97 98

99 100

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Reisman & Baker, supra note 85, at 16. See Ernle Bradford, Thermopylae: The Battle for The West 148 (1980) (often overt attacks create common bonds of pride and honour and generate a larger national identity). Reisman & Baker, supra note 85, at 141. A useful guideline for covert actions is that “an act accomplished covertly should be overtly lawful.” Before attacking Osiraq openly, Israel evaluated the possibilities of covert action to conclude that a secret raid, with the goal of disguising the identity of the attacker, would be more costly in terms of its own casualties and Iraq’s casualties and likely to attract more attention than an overt operation. See Perlmutter et al., supra note 34, at 88-100. Covert actions must meet the standards for armed conflict namely proportionality and discrimination regarding the target. See Reisman & Baker, supra note 85, at 77. Reisman & Baker, supra note 85, at 15. Id. at 76. Id. at 76, 142.

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gone. For those who like to remain in touch with reality, covert action is far from a sanctioned behavior in international dealings and, while it could be punished when it is uncovered, it is generally a well-tolerated behavior. According to Michael Reisman, a variety of covert actions are conducted today through the use of military, economic, diplomatic, propaganda and cyberspace instruments. Often, the use of overt action is preceded by covert action. While it initially appears that covert operations should be unlawful, closer investigation reveals “a much more complex operational code” than a strict prohibition would entail.104 While international law does not acknowledge covert action, the process of communication among states, most of which publicize their secret services,105 demonstrates that, no matter how offensive covert action is to our democratic instincts, we are far from the creation of a transparent international system. Since terrorism is the preferred type of covert action by weaker states, an instinctive means to prevent terrorist actions is through covert counteractions.106 Assuming that covert action is a legitimate and effective strategy, the international community’s efforts must be oriented towards defining and developing a “clearly prescribed and applied law governing covert action and the institutions for regulating it.”107 The good news is that as states are launching their covert operations, more eyes are watching them through what is becoming a transparent earth. Google Earth and commercial satellites have brought the technology that was the prerogative of states into contact with the masses. And while not everybody can look everywhere all the time, enough vigilantes exist, which could make states self-conscious that someone is watching them, either inadvertently or intentionally. States are adopting the same attitude for satellite technology that they have for nuclear weapons. It is hopeless to try to stop the spread of technology. Therefore, the strategy should be to amass even more accurate information than others, through better means, and even more quickly, while simultaneously requesting that Google Earth blind some of its eyes looking at the Earth.108 For example, the IAEA has had difficulties obtaining commercial satellite images that showed the Al Kibar facility immediately after it was bombed by Israel, which has lead to intensive speculation that the states involved in

104 105 106 107 108

W. Michael Reisman, Covert Action, 20 Yale J. Int’l L. 419, 419-20 (1995). Id. at 421. Id. at 424. Id. at 425. Group Asks Google to Stop Map Image Service, Reuters, Dec. 19, 2008, http://www. reuters.com/article/oddlyEnoughNews/idUSTRE4BI5A120081219 (Google Earth has “drawn criticism from a variety of countries for providing images of sensitive locations, such as military bases or potential targets of terror attacks.”) (last visited Aug. 23, 2009); see also Rina Chandran, Mumbai Attacks Show Up India’s Technology Shortcomings, Reuters, Dec. 11, 2008, http://www.reuters.com/article/latestCrisis/idUSBOM339447 (after the Mumbai terrorist attacks of 2008, a ban was sought on Google Earth for providing easy access to defense and civilian establishments creating security hazards) (last visited Aug. 23, 2009).

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

the cover up had bought out all the commercial satellite imagery available including intellectually property rights to it.109 Given that there is a choice between overt and covert action within the limitations of the new translucent earth, states have to decide how to go about in pursuing their interests. The more costly overt actions become in terms of publicity, prickly international lawyers offering strict interpretations of self-defense, and the prerogative to avoid attrition of one’s own forces, the more desirable the prospect of covert actions with the added advantage of an unwanted target’s surgical removal becomes. On the other hand, if covert action is to be avoided, one would need to construct a notion of self-defense that is much more expansive than even today’s concepts of anticipatory self-defense. In this respect, a notion of precautionary self-defense may even be propagated. The proposition of such a precautionary notion of self-defense is in line with the practice of international actors. Today, precautionary self-defense is widely practiced and often unrestrained, in many areas of the world, especially within failed states.110 International lawyers have agonized over the concept of self-defense and its different offshoots—presented as either anticipatory111 or preemptive self-defense. It has been correctly argued that while the context within which self-defense is evoked should be evaluated, the state launching the act of self-defense should not be left as the sole judge of its actions, and that the fact-finding ability of international organizations should be strengthened. International organizations should be empowered 109 George Jahn, IAEA Chief Baffled Over Lack of Syria Nuclear Info, ABC News, Nov. 27, 2008, http://abcnews.go.com/International/wireStory?id=6349363 (Aug. 23, 2009). 110 According to certain accounts, failed states like Somalia are the best places to combat terrorists because, given the absence of local sovereignty and the lack of media attention, virtually unrestricted Western counterterrorism efforts can take place. See Paul Salopek, U.S. Appears to be Losing its Secret War in Somalia, Seattle Times, Nov. 29, 2008, http://seattletimes.nwsource.com/html/nationworld/2008448575_somalia29.html (last visited Aug. 23, 2009). 111 See Philip C. Jessup, A Modern Law of Nations 166 (1948); Ian Brownlie, The Use of Force in Self-Defence, 37 Brit. Y.B. Int’l L. 183, 225-28, 244 (1961); Thomas M. Franck, Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States, 64 Am. J. Int’l L. 809 (1970); Michael J. Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harv. J.L. & Pub. Pol’y 539 (2002); see also Louis Henkin, How Nations Behave: Law and Foreign Policy 295 (1979)(“[T]he Charter intended to permit unilateral use of force only in a very narrow and clear circumstance, in self-defense if an armed attack occurs.”); Quincy Wright, The Cuban Quarantine, 57 Am. J. Int’l L. 546, at 560 (1963). But see McDougal & Feliciano, supra note 58, at 67, 184, 234 (1961); Derek Bowett, Reprisals Involving Recourse to Armed Force, 66 Am. J. Int’l L. 1, 4 (1972) (mentioning that rejecting an anticipatory right is ‘in this day and age, totally unrealistic and inconsistent with state practice’); Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620 (1984). For an insightful discussion on the concept of self-defense and its evolution in international law, see Emmanuel Roucounas, Self-defense: Present Problems of the Use of Force in International Law, Institut de Droit International, 10th Commission (2007), available at http:// www.idi-iil.org/idiE/annuaireE/10th_com_leger_a.pdf.

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to appraise the legitimacy of claims of self-defense under some form of community review.112 D. The NPT Regime’s Fairness and Effectiveness Tolerating attacks on non-fueled nuclear reactors owned by “rogue states”113 based on reasonable suspicions that such reactors will be used to produce nuclear weapons widens the contours of the meaning of anticipatory self-defense. The tolerance of such attacks has been attributed to the NPT regime’s ineffectiveness, in that it is unable, by design, to detect clandestine nuclear programs.114 A theory of precautionary self-defense that is able to legitimize attacks against nuclear programs that are tainted by their potential for enabling weapons proliferation will be favored by Western states but denigrated by other, so-called “anti-elite,” states.115 These anti-elite states challenge the essence of the international system in terms of the distribution of current entitlements. The NPT regime’s ineffectiveness is due to more than just the IAEA’s verification mechanisms’ shortcomings.116 Objections against the nuclear non-proliferation regime, as shaped by the NPT and concomitant export control regimes,117 have deep ideological roots. Certain countries resent United States-led globalization and believe that if some circumstances were changed they could be world leaders.118 For these countries, possessing nuclear weapons has a psychological component. For them, having weapons entails the ability to use force and to thus alter the balance of power both regionally and internationally. Given that the nuclear club includes the most powerful nations in the world, these countries believe that they have been made second-class citizens through their exclusion from that club.119 Iran’s views regarding the division of the world into “nuclear rich” and “nuclear poor”—through the application of what has been called “nuclear apartheid”—are demonstrative of the mentality of those who refuse to accept a world where only five (now de facto nine) states have an oligopoly on nuclear weapons.120 According to Iran, 112 Schachter, supra note 111. 113 Rogue states are states considered threatening to international peace and security. They are ruled by authoritarian governments, which restrict human rights. They also support terrorism and are interested in acquiring and proliferating weapons of mass destruction. 114 See supra notes 35, 77. 115 David Rothkopf, Superclass: The Global Power Elite and the World They are Making 185 (2008). 116 See supra note 35. 117 See supra note 51. 118 Rothkopf, supra note 115. 119 Id. 120 According to article VI of the Treaty for the Non-Proliferation of Nuclear Weapons, states undertake “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international

47 Elli Louka, Precautionary Self-Defense and the Future of Preemption in International Law

today’s international system is unacceptably defined by Western states’ pre-eminence and unilateralism, and the increased role of nuclear weapons as a means to coerce political compromises. These policies are understood as increasing the insecurity and vulnerability of states that do not posses nuclear weapons. Iran resents the “double standards” propagated by the NPT regime. Iran’s nuclear program is associated with its national pride. Iran’s nuclear capabilities are a way for Iran to operate at a level equal to the world’s most powerful countries.121 Given that there are multiple reasons why a country may wish to acquire nuclear weapons,122 it would be difficult for a country like Iran to permanently refrain from acquiring the technologies to produce nuclear weapons. If other countries in the region have nuclear weapons, Iran’s acquisition of nuclear weapons would at least provide it with a hedge strategy. Countries rejecting calls for them to “de-nuclearize” have, at their heart, an ingrained belief that giving up the nuclear option, and the technology to produce nuclear weapons, will increase their likelihood of becoming embroiled in local conflicts and becoming a “military basket case” like Afghanistan, Iraq and many of Africa’s failed states.123

control.” Treaty on the Non-Proliferation of Nuclear Weapons, supra note 51, art. 6. The subsequent review conferences were rife with recriminations for the non-fulfilment of promises of nuclear disarmament perpetuating concerns regarding the regime’s inherent inequity. The fact that the NPT regime is not really geared toward the reduction of existing nuclear weapons stocks deepens perceptions that the bargain struck in 1968 was not really fair. 121 See, e.g., Kaveh L. Afrasiabi & Mustafa Kibaroglu, Negotiating Iran’s Nuclear Populism, 12 Brown J. World Aff. 255 (2005). Furthermore, Iran may honestly want to reduce its internal consumption of oil and gas in order to increase the export of its energy sources. Iran has projected nuclear power as a way to modernize its economy and provide jobs for a rapidly growing workforce. See Amir Azaran, NPT, Where Art Thou? The Nonproliferation Treaty and Bargaining: Iran as a Case Study, 6 Chi. J. Int’l. L. 415, 417 (2005). 122 States develop and maintain nuclear arsenals for various purposes: great powers like to match weapons of other great powers as a guarantee of their uniqueness and superiority; some states view nuclear weapons as an insurance policy in case there are doubts that a great ally will provide assistance during conflict; a country with adversaries would like to develop nuclear weapons if its adversaries have them (China, India, Pakistan); a country may acquire nuclear weapons to offset what it conceives to be a strength in conventional weaponry of an adversary; nuclear weapons could be considered a cheaper arms option than engaging in a conventional weapons arms race; a country may hope to strengthen its international standing though the acquisition of nuclear weapons; a country may want nuclear weapons for offensive purposes (but this is unlikely to happen because of fears of catastrophic calamities resulting from the use of such weapons). See Scott D. Sagan, How to Keep the Bomb from Iran, 85 Foreign Aff. 45, 47 (2006); Kenneth Waltz, supra note 77. 123 Similar concerns were prevalent in Europe during the Cold War under an understanding that if Europe were to “de-nuclearize” it would be reduced to the level of countries with local conflicts. See Lawrence Freedman, The Evolution of Nuclear Strategy 286 (2003).

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Overall, a state’s decision to acquire nuclear weapons involves a complex calculus that combines issues of security, self-perception and economic costs. The IAEA safeguards124 and existing export control regimes125 hope to increase the costs of developing nuclear weapons programs, but they cannot successfully address states’ preoccupation with the incentives behind this complex calculus.126 A correct appraisal of the attacks at Osiraq and Al Kibar cannot be performed outside the context of what is perceived as a fair international system. If the NPT regime is conceived as a just regime, which nevertheless lacks implementation effectiveness, the attacks at Osiraq and Al Kibar are more easily identifiable as lawful. But if the regime is identified as outdated and unjust, unfairly dividing the world into nuclear-weapon-haves and have-nots, then the attacks seem to be the biased imposition of self-perceptions of national security onto the construct of international stability while the former is not necessarily a pre-condition of the latter. For instance, one could ask (with a certain dose of cynicism): in a world where a number of states have latent nuclear capacity,127 what is the harm of two additional states acquiring that capacity as a countervailing measure to a perceived threat? The answer has essentially to do with our preferred, and admittedly biased, sense of a future world order that is based on the asymmetrical acquisition of the nastiest weapons, which will allow, inter alia, for control of resources and the making or breaking great powers. Another approach to the NPT regime is to not see it as a distributional agreement of weapons and, thus, of power; but to see it as a fair bargain in a world in which the constitutive element is the inequality among states.128 This is a world where elites 124 See supra note 35. 125 See supra note 51. 126 See Daniel C. Rislove, Global Warming v. Non-Proliferation: The Time has Come for Nations to Reassert Their Right to Peaceful Use of Nuclear Energy, 24 Wis. Int’l L.J. 1069, 1091 (2006). 127 The technical capacity to manufacture a relative simple nuclear device is within the reach of forty to fifty countries. Given the “nuclear renaissance,” based on hopes that nuclear energy is a means to decarbonize the economy, countries’ technical capability to produce nuclear weapons will grow. See Robert L. Pfaltzgraff, Jr., The Future of the Nuclear Non-Proliferation Treaty, 30 Fletcher F. World Aff. 65, 70 (2006). As a matter of fact, once a country has mastered either the front or back end of the nuclear fuel cycle, the production of nuclear weapons, assuming the political will exists, is merely a matter of time. All countries that have fuel cycle capacity simultaneously have “virtual” weapons capability—that is, the capability to produce nuclear weapons. States, in other words, are exploring a hedge strategy regarding nuclear weapons. By building a technological and industrial base, through the development of enrichment and reprocessing facilities, they keep the option of acquiring nuclear weapons in the future open. See Anthony et al., supra note 51, at 92. Argentina, South Africa, Brazil and Japan could be considered virtual nuclear weapon states because they have nuclear technological know-how. See William Choong, Chipping Away the Nuclear Taboo, The Straits Times, Aug. 3, 2008. 128 The Security Council, the most powerful organ of the United Nations system, is comprised of the victors of World War II, and as such is not an expression of a new kind of sovereign equality among nations. The asymmetries of power in the Security Council

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are not treated (nor is it expected that they will be treated) the same as non-elites, and where it is in the benefit of all to control the spread of some of the most deadly weapons—even under undesirable and passé, yet useful, notions of paternalism. Today, one could fairly claim that most states have acquiesced to an international order where there are great powers,129 second-rated powers, states in the name only and failed states. Under this understanding of the international order, while it is true that the control of nuclear weapons is probably an exercise in futility, making an open admission of that futility by deleting all international constraints would become too risky. Policymakers often prefer to put a mask of effectiveness and control on an international regime, despite the self-defeating reality. This is simply because doing otherwise would unbuckle any moral constraint imposed by the various societal taboos and, in this case, by the nuclear taboo. While the NPT does not do much to constrain superpowers, it could have normative influence as weaker states are trying to constrain their counterparts’ potential nuclear ambitions. The NPT is based on the nuclear taboo—that is, an urge to resist rationalistic arguments that nuclear deterrence can work for all under a notion of universal nuclear deterrence and that efforts must be undertaken to control the bad genie that has come out of the bottle. For most people, even the sound of the word “nuclear weapons” generates a heart-sinking feeling, which is an advantage that the arms control movement does not enjoy for other weapons. The problem is that the NPT regime has oscillated between two extremes. On the one hand there is a general fatalism, which views the spread of nuclear technology and weaponry as inevitable130 and, thereby, generates a sense of futility in the mission of international institutions. On the other hand, there is an oedipal attachment to the nuclear taboo when those rogue elites are close to the acquisition of nuclear weapons. This suspended indecision between these diametrically opposed poles has dented the NPT regime’s normativity, generating despondency in all those who believe in a world that is free of nuclear weapons (or at least with fewer nuclear weapons). Given this indecision, it is not paradoxical that states, for which nuclear weapons are deemed part of their national security apparatus, have adopted the view that a pain reliever is better when a curative remedy does not exist. In this respect, sporadic attacks at non-fueled nuclear reactors seem to be the appropriate pain reliever until a curative remedy is found in terms of restoring a coherent multilateral response. States will have to gauge the costs and benefits of covert action versus those of overt hostilities and will be tempted frequently by the advantages offered by covert warfare. The evolution of warfare will stretch the notion of self-defense out of the currently acceptable legal bounds, making the possibilities of covert action even “were neither a mistake nor an oversight. The whole idea was to marshal effective power in pursuit of peace.” See Michael Reisman, Amending the UN Charter: The Art of the Feasible, 88 Am. Soc’y Int’l L. Proc. 108 (1994). 129 A great power is “a state with a resource base and an internal political organization that enables its elite to clarify its global interests and, if necessary, to deploy significant force to protect them.” Id. at 110. 130 See Reisman, supra note 77.

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more tantalizing. For this reason, the Al Kibar attack may provide some solace to counter-proliferators because the attack was largely absorbed in the international arena without many hitches, which is tantamount to a tacit acceptance. It seems that the majority of states were relieved that this action was taken in a surgical manner by someone after contemplating, through the Iranian case, the nightmare that a Security Council engagement may entail.131 IV. Precautionary Self-Defense Precautionary self-defense is defined here as a neighboring concept to anticipatory self-defense (imminent threat) and preemptive attack (future contingent threats), but it is distinguished from them. A central element of the attacks at Osiraq and Al Kibar was that they were undertaken under a presumption that a “rogue country,” under suspicion of developing nuclear energy for the production of nuclear weapons, has the burden of proving that it is not engaging in weapons production by providing complete access to its nuclear program. As long as it is perceived that such transparency is not provided, the presumption of weapons production will hold, and an attack on that country’s nuclear facilities will be tacitly tolerated and eventually legitimized. In other words, precautionary attacks on nuclear facilities involve the reversal of the burden of proof from the attacker to the (potential) victim,132 because the victim must demonstrate that it is indeed not engaging in nuclear weapons production to prevent such an attack or demand a sort of relief after it happens. This proof can come ex ante, as the U.N. Security Council is now requesting of Iran, or still could come after a precautionary attack has taken place. Syria, as demonstrated by the Al Kibar incident, while the victim of an attack, is now the country that is under intense investigation about potentially harboring a secret nuclear weapons program.133 Similarly, even after the Osiraq attack, Iraq never quite got rid of the stigma of engaging 131

See IAEA, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1835 (2008) in the Islamic Republic of Iran, IAEA Doc. GOV/2008/59 (Nov. 19, 2008); see also Paul K. Kerr, Cong. Res. Serv., Iran’s Nuclear Program: Status (2008), available at http://opencrs.com/getfile.php?rid=65920. 132 This differentiates a precautionary attack from a preventive war. Traditionally, the burden of proof rests with the state that claims self-defense. Both a precautionary attack and a preventive war have to do with the risk management of adversaries; but, in the case of precautionary attacks, the burden of proof shifts to the victim (or the potential victim) of such an attack, thereby requiring it to demonstrate that it does not present a security risk. It does so by allowing total access of its nuclear programs. For the traditional version of the burden of proof when a state claims self-defense, see Oil Platforms (Iran v. U.S.), 1996 I.C.J. 161, 189 (Nov. 6) (“the Court has simply to determine whether the United States has demonstrated that it was the victim of an “armed attack by Iran such as to justify it using armed force in self-defence; and the burden of proof of the facts showing the existence of such an attack rests on the United States.”) 133 See IAEA, Implementation of the NPT Safeguards Agreement in the Syrian Arab Republic, IAEA Doc. GOV/2008/60 (Nov. 19, 2008).

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in clandestine weapons production; a stigma skillfully used to eventually destroy that state. This application of preemptive self-defense of a precautionary nature has to do with the application in the security arena, of what could be called the “risk management paradigm,” in which the aim is to control and manage risk134 so that it does not get out hand and result in the worst calamity.135 In this respect, rogue states are viewed as risks that the prevalent powers would rather control, in anticipation of the worst-case scenario, rather than having to deal with them after the worst-case scenario materializes.136 In the wake of 9/11, the Security Council seems to have endorsed a more assertive approach with regard to actions that can be taken to combat terrorism.137 The right to self-defense under United States preemption strategies has been expanded to address the global war on terror (GWOT). After the 9/11 attacks, the United States National 134 The risk management paradigm is prevalent not only in the military but also in the finance and economic sectors. See George Cooper, The Origin of Financial Crisis: Central Banks, Credit Bubbles and the Efficient Market Fallacy 4 (2008) (“In recent years this lopsided approach to monetary and fiscal policy has been further refined into what has been described as a “a risk management paradigm,” where policy makers attempt to get their retaliation in early by easing policy in anticipation of an economic slowdown, even before firm evidence of the slowdown has been accumulated. This strategy is best described as pre-emptive asymmetric monetary policy.”) (emphasis added). On the global financial crisis and how precautionary reserves contributed to it, see Global Economic Imbalances: When a Flow Becomes a Flood, Economist, Jan. 22, 2009: “The self-insurance against financial fragility is part of a more general bent towards precautionary saving in the developing world.” While the vast precautionary reserves of developing countries, a reaction to the painful memories of the Asian crisis, are a prudent safeguard against a sudden crisis in foreign finance and a protection against the sudden flight of domestic savers, they contribute to global financial instability. 135 See U.S. Dep’t of Def. [DOD], National Defense Strategy (2008) (mentioning the word “risk” over thirty times). According to DOD, the United States faces operational risk, future challenges risk, force management risk and institutional risk. “Implementing the National Defense Strategy and its objectives require balancing risks, and understanding the choices those risk imply … Here we define risk in terms of potential for damage to national security combined with the probability of occurrence and a measurement of the consequences should the underlying risk remain unaddressed.” Id. at 20; see also DOD, Quadrennial Defense Review Report 112 (2006) (“We cannot accurately characterize the security environment of 2025; therefore, we must hedge against this uncertainty by identifying and developing a broad range of capabilities. Further, we must organize and arrange our forces to create the agility and flexibility to deal with unknowns and surprises in the coming decades. This review has carefully balanced those areas where risk might best be taken in order to provide the needed resources for areas requiring new or additional investment.”). 136 For the precautionary approach as articulated in the Caroline case, see supra note 76. 137 See S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sept. 12, 2001) (recognizing “the inherent right of individual or collective self-defence in accordance with the Charter” for the cause of combating “by all means threats to international peace and security caused by terrorist acts.”); see also S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28. 2001).

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Security Strategy expanded the notion of anticipatory self-defense, which, as traditionally understood in international law, has to do with a credible threat of an attack, to include notions that have to do with the mere capabilities, objectives and means of adversaries.138 This occurred because these adversaries are no longer rational states that are likely to be deterred, but rogue states or terrorists who are not to succumb to traditional notions of deterrence. Thus, their actions must be preempted. Unilateral surgical attacks like those at Osiraq and Al Kibar may have become a better (possibly optimal) way to deal with an enemy, rather than an all-out armed attack. Emphasis must be placed on the surgical (“clean”) nature of such unilateral acts, which meet the requirements of proportionality that should guide self-defense actions and, in general, jus in bello. Although counterintuitive, from civil society’s perspective, surgical operations of a precautionary nature may be an optimal way to launch an attack because of the low or zero number of civilian casualties. This feature, in addition to the silence and secrecy that surrounds such incidents, makes them unlikely to provoke a retaliatory action from the enemy or, at least, they are unlikely to compel opponents to take such action, thus minimizing the likelihood of an all-out war. Since care for one’s own forces overrides concerns about the deaths of the opponent’s civilians,139 and given that civilian casualties tend to generate public opprobrium, launching a semi-covert, surgical attack may be the way of future warfare.140

138 Nat’l Sec. Council [NSC], The National Security Strategy of the United States of America 15 (2002) (“For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat— most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.”) (emphasis added); see also NSC, National Security Strategy of the United States of America 28 (2006) (“If necessary, however, under long-standing principles of self-defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption. The place of preemption in our national security strategy remains the same.”) (emphasis added). 139 Diminishing the number of civilian casualties in Afghanistan, for instance, will mean putting more Western soldiers on the ground and at risk, a risk not acceptable compared to risking the lives of the civilian populations in Afghanistan. See Western Forces in Afghanistan, Unfriendly Fire, Economist, June 23, 2007, at 51. 140 See Qiao Liang & Wang Xiangsui, Unrestricted Warfare 28, 191 (1999) (referring to surgical strikes as a new method of warfare), available at http://www.terrorism.com/ documents/TRC-Analysis/unrestricted.pdf.

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Decision-makers may resolve to rely heavily on unilateral, covert, surgical strikes because: – they limit harm to one’s own forces and entail minimal civil casualties reducing the opprobrium that such casualties generate; and – they remove the attack from the public eye allowing some relative freedom of action under modern effective constraints put in place by the transparency offered by Google Earth. The goal of international law is to achieve a public order of human dignity, which has been defined as one in which all human beings have access to all the things they cherish: power, wealth, entitlement, skill, well-being, affection, respect and rectitude.141 No matter what the arguments are that can be made for precautionary surgical strikes, they certainly do not comprise an ideal, optimum world order, especially since the necessity for conducting such strikes is currently left at each individual state’s discretion. One is entitled to feel quizzical about the creation of international regimes in which action is based on individual states’ judgments, free from the intervention of a multilateral mechanism that is able to somewhat objectively judge claims of lawfulness. One could only imagine the fate of a world where a number of emerging powers142 assert their claims by launching semi-covert, surgical, unilateral strikes without any restraint. It has been argued that the United States should not propagate the development of an international order where every state can use force against potential adversaries in preemptive self-defense. It is not in a great power’s interests to establish preemption of a precautionary nature as a universal principle available to every nation. As Louis Henkin warns: “Extending the meaning of ‘armed attack’ and of ‘self-defense,’ multiplying exceptions to the prohibition on the use of force and the occasions that would permit military intervention, would undermine the law of the Charter and the international order established in the wake of world war.”143 In that world, what a world citizen could pray for is that unilateral, surgical strikes remain at least within the letter of the term “surgical.”

141 By asserting human dignity as the central value in a globalized world the New Haven School at least establishes a standard about the acceptable level of behavior for states, groups and individuals when competing world views are vying for preponderance. Given that a sometimes fashionable cultural relativism is still used to suppress minorities, women and children, human dignity is the most important standard to uphold. The premise that “law should serve human beings,” as the goal of international law, transforms that law from an instrument in the hands of some elites to a means for social change in the betterment of humanity. See Myres S. McDougal et al., Human Rights and World Public Order: The Basic Policies of International Law of Human Dignity (1980); see also W. Michael Reisman et al., The New Haven School: A Brief Introduction, 32 Yale J. Int’l L 575, 576-80 (2007). 142 See United States National Intelligence Council [NIC], Global Trends 2025: A Transformed World (2008). 143 Louis Henkin, The Use of Force: Law and U.S. Policy, in Right v. Might: International Law and the Use of Force 37, 60 (Louis Henkin et al. eds., 1991).

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Precautionary self-defense is not analyzed here as an optimum world order, but as the de facto world order. Law is an experimental science—it is not found by deriving theorems out of obscure axioms, but by studying what is going on in world affairs expressed through the communicative processes of words and actions of states and other international actors. Science’s role is to try to establish order out of chaos by finding the forces and the laws that govern scientific phenomena. Legal science’s purpose is to decode the international society’s laws as they can be deciphered from its everyday interactions. This is the way we derive what is called lex lata. One could certainly point out “the jungle is out there,” defeating any type of analysis that allows for making credible predictions about how nations will behave in the future.144 Alternatively, one could engage in an analysis of how nations do indeed behave, all the while knowing that, based on the values of human dignity145 or even elementary considerations of humanity, this should not be the way to behave.146 The problem is that preemptive self-defense of a precautionary nature is already on the table, and the notion of imminence is, at least as far as these two incidents demonstrate, now stretched to involve decades. Preventive or precautionary strikes in an overt or covert fashion are constantly undertaken in the world without any international complaint.147 While this is not a desirable world order, it is the current world order—one in which a number of emerging powers compete for pre-eminence and in which there are a vast number of less than sovereign states. The question before us is not whether to institute preemptive self-defense of a precautionary character as an international norm; this has already happened. The problem, therefore, is what to do about it and how to potentially regulate it. After all, one should not have expected that in a world of weak nonproliferation institutions and loose enforcement machinery, against a backdrop of intensification of competition for the control of resources, that current and aspiring hegemons would be content to stay within the confines of textual interpretation of neat international norms. Therefore, as the adoption of various doctrines demonstrates, various strategies have been invented to claim exceptionalism or offer one’s own interpretation of international norms.148 Even proclamations of a responsibility to protect others have been invented

144 When a society’s operational code differs dramatically from the formal system, one would find it very difficult to survive knowing only the formal system’s norms. Immigrants often feel this way in their host societies when; while they know the rules of the formal system, they “cannot get things done” because they do not know how to “work” the system. 145 See McDougal et al., supra note 141; see also Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948). 146 See Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9). 147 See, e.g., Salopek, supra note 110. 148 For example, the Monroe doctrine, the Reagan doctrine, the Bush doctrine. See generally Presidential Doctrines: National Security from Woodrow Wilson to George W. Bush (Robert P. Watson, et al. eds., 2003).

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to allow for action that would not be permitted under a strict interpretation of Article 2(4) of the United Nations Charter.149 Exceptionalism carries a certain weight. It is unlikely that Israel would have taken action at Osiraq and Al Kibar without believing that the United States would back up its actions. While the United States went through the motions of diplomacy by officially condemning the Osiraq attack, it tried to moderate other states’ reaction to the point that it walked out of the IAEA. Israel would probably not have undertaken the Al Kibar attack without at least cross checking its intelligence information with that of the United States. It was the United States Central Intelligence Agency that, eight months after the attack, published information about the nature of the facility targeted by Israel. Any Arab state wishing to retaliate against Israel knows fully well that it would not only engage Israel’s nuclear might but also the United States’ military. It has been claimed, “nations of the world will not accept international rules that yield a different answer to the question of whether an action is legal depending on the identity of the actor.”150 While this sounds theoretically accurate, reality is unfortunately lagging behind. This is true because equality before the law cannot subvert, and is often affected by, inequalities in wealth and power. After all, states have acquiesced to an international order in which “imperialistic states”151 (as they have come to be labeled in certain circles) determine the future world order. Since states are equal only in name, perceptions about what each state is permitted to do differ depending on that state’s status. For certain elites, therefore, a world of precautionary, preemptive, surgical, unilateral strikes that could be executed selectively by them is a preferred world order compared to the perils of another world war. These elites’ goal is to make war a remote possibility for themselves and their allies, and to transfer all conflicts to other states and localities where a surgical attack that goes astray is unlikely to provoke the same furor as when Western soldiers are at peril. Western society is becoming a precautionary society152 and, in that vein, it would rather prevent a potential war 149 See, e.g., Int’l Comm’n on Intervention and State Sovereignty, The Responsibility to Protect (2001), available at http://www.iciss.ca/pdf/Commission-Report. pdf. The United Nations Secretary-General Kofi Annan, in his report to the 2000 General Assembly, challenged the international community to develop a consensus on how nations are to intervene in other states’ affairs. In September 2000, the Government of Canada established the independent International Commission on Intervention and State Sovereignty to respond to that challenge. The commission built its report around the “responsibility to protect” principle. This principle holds that U.N. member states have a responsibility to protect the lives, liberty, and basic human rights of their citizens. If states fail or are unable to carry the responsibility to protect their own citizens, the international community has a responsibility to intervene to do so. 150 Derek W. Bowett, International Incidents: New Genre or New Delusion?, 12 Yale J. Int’l L. 386, 388 (1987). 151 See, for example, the Russian Empire, the British Empire or, more benevolently, Pax Americana, Pax Sinica. 152 The notion of the precautionary society has to do with extreme aversion to risks threatening a certain standard of living or lifestyle. See also supra note 134. The circulation of

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that may touch its gates than wait and see if such war would actually break out. Such a society would be largely risk adverse with regard to warfare that is likely to occur on its territory, but would likely tolerate, with different degrees of ease, conflicts that happen outside its gates, especially if they are surgical so that its conscience is not that much affected. Actually, it is in the element of a precautionary society to strive to adopt prophylactic measures to avert at all costs the loss of privileges that it has so painstakingly gained, thereby affording itself the right to preempt conflicts entering its space. The fact that other societies may in the future claim the same right has yet to decisively enter strategic thinking because it is believed that the status quo of military superiority is likely to be maintained—and should be maintained at all costs153—into the future. The future of warfare may assume multiple directions and dimensions.154 But, given the potency of new weapons, a third world war could actually bring the end of civilization as we know it. One could arrogantly believe that our Titanic will never sink, but the demise of some great civilizations should bring a sense of humility about what the future may bring.155 Since another world war must be avoided at all costs, surgical unilateral operations of a precautionary character would be increasingly relied on and tolerated (often with a sigh of relief ) and are likely to be viewed as a preferable alternative to an all-out war. In this case, Article 51 of the U.N. Charter may seem hopelessly antiquated, not because its meaning cannot be restricted but because it is limiting the number of broader interpretations that can be assigned to it. In a world filled with weapons of mass destruction, preemptive actions of a precautionary nature may be seen as a desirable, to-be-sought-after alternative to relieve the tensions that accumulate when negotiated solutions are not in sight and messages need to be delivered with actions rather than words. Surgical actions that exhibit one’s potency without being overly destructive are, of course, preferred. Given that a world without conflict is an illusion, the question for the twenty-first century is how to structure such conflict so that it does not become a holocaust (this time of the entire human race). In this respect, anticipatory and preemptive self-defense of a the precautionary principle in international law, for instance, involves the reversal of the burden of proof regarding the hazards of industrialization. According to the precautionary principle, those who initiate a potentially hazardous activity (i.e., the introduction of a new chemical substance) have to prove that the substance will not be harmful to humans and the environment. On the application of precautionary principle/approach in environment law, see Elli Louka, International Environmental Law: Fairness, Effectiveness and World Order 50-51 (2006). 153 See, e.g., Missile Defense Agency Home Page, DOD, http://www.mda.mil/mdalink/html/ mdalink.html (highlighting some of the United States’ military advancements) 154 See Qiao Liang & Wang Xiangsui, Unrestricted Warfare (Beijing: PLA Literature and Arts Publishing House 1999); see also Elli Louka, The International Law of Nuclear Warfare (forthcoming 2010). 155 See, e.g., Jared M. Diamond, Collapse: How Societies Choose to Fail or Succeed (2005).

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precautionary nature156 will have a role to play no matter what lawyers who tear their clothes off in protest say.

156 See Mysterious Air Raid on Sudan: A Battle between Two Long Arms, Economist, Apr. 4, 2009, at 34 (“Israeli aircraft and/or unmanned drones … destroyed a convoy of 23 lorries carrying Iranian arms destined for Hamas in mid-January in north-east Sudan. After some confusion, the Sudanese government admitted that such an attack, ‘probably’ by Israel, had indeed taken place just north of Port Sudan on the Red Sea. Exotic but unverifiable claims in various media aver that Israel’s Mossad intelligence service got a tip that the arms were going to be smuggled into the Gaza Strip via Sudan and Egypt; that Israel’s air force had only a few days to prepare its raid; and that 40 or so people in the convoy, including Iranians, may have been killed. Israel’s aim is said to have been to stop Hamas acquiring Iranian Fajr rockets, designed to be stripped down and carried in parts through the tunnels from Egypt into Gaza … When asked about the attack Israel’s prime minister, Ehud Olmert, responded ‘Who needs to know, knows.’”).

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Chapter 48 Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire Djamchid Momtaz

Le 14 août 2002, le “Conseil national de la résistance,” constitué par un groupe d’opposants à la République islamique d’Iran, révélait l’existence à Natanz d’une usine d’enrichissement d’uranium ayant échappé à la surveillance des inspecteurs de l’Agence internationale de l’énergie atomique (ci-après AIEA). L’Iran reconnaissait qu’en tant qu’Etat partie au Traité de non-prolifération des armes nucléaires (ci-après TNP)1 ainsi qu’à l’Accord de garanties qu’il avait conclu avec l’Agence,2 il était tenu de soumettre ses activités au contrôle de cette Agence. Néanmoins, pour ce qui est de l’usine de Natanz, une telle obligation ne s’imposait qu’à partir du moment où des matières nucléaires étaient introduites dans les centrifugeuses, ce qui n’était pas encore le cas à la date de la prétendue révélation.3 Le 21 février 2003, le Directeur général de l’AIEA se rendait sur le site de Natanz. Les analyses effectuées, suite à cette visite, sur les échantillons prélevés sur les éléments de centrifugeuses devaient révéler la présence de particules d’uranium hautement enrichi. La réaction du Directeur général fut immédiate. Il dénonça les actes d’omission de l’Iran qu’il qualifiait de “manquements” à l’Accord de garanties conclu

1 2

3

L’Iran a ratifié le Traité de non-prolifération des armes nucléaires le 2 février 1970. Conformément à l’article II du Traité de non-prolifération, tout Etat non doté d’armes nucléaires qui est partie à cet instrument “s’engage à accepter les garanties stipulées dans un accord qui sera négocié et conclu avec l’AEIA à la seule fin de vérifier l’exécution des obligations assumées par ledit Etat aux termes du présent Traité en vue d’empêcher que l’énergie nucléaire ne soit détourné de son utilisation pacifique vers des armes nucléaires ou d’autres dispositifs nucléaires.” L’Iran a conclu un tel accord, communément appelé accord de garanties, avec l’AEIA le 13 décembre 1974. Doc. INFCICR / 214. Ali A. Soltanieh, Iranian Nuclear Activities and Interaction with the IAEA, 1 Atoms for Peace: An International Journal 95-108 (2005). La thèse selon laquelle l’Iran n’était pas tenu de signaler les activités menées dans une usine d’enrichissement avant l’introduction des matières nucléaires a été rejetée par le Conseil de sécurité qui a estimé que le droit de l’AEIA de “vérifier les caractéristiques fondamentales qui lui sont soumises est un droit permanent qui ne dépend pas de l’étape de construction d’une installation ou de la présence de matières nucléaires dans une installation.” Cf. Rés. 1803 du 3 mars 2008.

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 989-1001.

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par cet Etat avec l’Agence,4 constatation endossée par la suite par une résolution du Conseil des gouverneurs de l’AIEA.5 Prenant le contrepied des Etats-Unis, décidés à faire sans tarder appel au Conseil de sécurité, l’Union européenne optait alors pour la voie des négociations. Les ministres des Affaires étrangères de l’Allemagne, de la France et du Royaume-Uni (ci-après la Troïka) entreprirent donc une démarche diplomatique auprès de l’Iran, laquelle fut couronnée de succès. Le 21 octobre 2003, la Déclaration de Téhéran rendait public l’accord des parties sur les grandes lignes d’une future entente dont le détail devait être concrétisé par l’accord de Paris du 15 novembre 2004.6 L’Iran accepta de suspendre sans délais ses activités d’enrichissement tout en s’engageant par ailleurs à signer le Protocole additionnel à l’Accord de garanties,7 ce qu’il fit dès le 18 décembre 2003. La mise en œuvre provisoire de cet instrument par l’Iran, en attendant sa ratification, prévoyait l’élargissement de la gamme des informations à fournir à l’Agence tout en mettant davantage de moyens à la disposition des inspecteurs afin qu’ils puissent s’assurer au mieux de la nature pacifique des activités nucléaires de l’Iran. En contrepartie, la Troïka, au nom de l’Union européenne, reconnaissait à cet Etat le droit de développer un programme nucléaire civil et lui accordait sa pleine coopération à cette fin. Il s’est par la suite avéré que, pour l’Union européenne, ce droit n’englobait pas celui de mener des activités d’enrichissement, et ce dans la mesure où elle se proposait de garantir à l’Iran l’accès au combustible nucléaire pour le fonctionnement de ses centrales nucléaires.8 Le refus de l’Iran de cette offre dont l’acceptation signifiait une renonciation définitive à ses activités d’enrichissement devait entrainer l’échec des négociations. L’Iran, qui, sur une base volontaire, avait provisoirement interrompu ses activités, décida alors de les reprendre.9 La Résolution adoptée le 24 septembre 2005 par le Conseil des gouverneurs de l’AIEA10 à l’instigation de la Troïka condamne “la politique de dissimulation de l’Iran sur ses activités nucléaires, estimant qu’elle soulève des questions relevant du Conseil de sécurité en tant qu’organe doté de la plus grande responsabilité dans le maintien de la paix et de la sécurité internationale.” Le pas décisif dans la saisine du Conseil de sécurité sera franchi plus tard par l’adoption de la résolution du 4 février 200611 4

5 6 7 8 9 10 11

GOV / 2003 / 40 – 6 juin 2003. Pour l’Iran, l’origine de cette contamination était étrangère et provenait du matériel acquis par l’intermédiaire du réseau scientifique pakistanais Abdul Qader Khan. L’AIEA accepta par la suite cette explication. Cf. Rapport du Directeur general, GOV / 2005 / 67 – 2 septembre 2005. Le Directeur général déclarait en effet: “Based on the information currently available to the Agency, the results of the analysis tend, on balance, to support Iran’s statement about the foreign origin of most of the observed HEU contamination.” GOV / 2003 / 69 – 12 septembre 2003. Pour le texte de l’Accord de Paris, Cf. INFCICR / 637 – 26 novembre 2004. Communication de l’Iran en date du 10 novembre 2003 au Directeur général de l’AIEA. INFCICR / 651 § 34 – 8 août 2005. INFCICR / 666 – 3 février 2006. GOV / 2005 / 77 – 24 septembre 2005. GOV / 2006 / 14 – 4 février 2006.

48 Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire

par laquelle le Conseil des gouverneurs demandait au Directeur de l’Agence de faire rapport au Conseil de sécurité sur les mesures que l’Iran doit prendre pour dissiper les doutes sur son programme nucléaire. Le Directeur général, dans le rapport qu’il soumet alors au Conseil de sécurité12 précise qu’il n’est pas en mesure de conclure qu’il n’existe pas de matières ou d’activités non déclarées dont certaines pourraient avoir une dimension nucléaire militaire. Il estime qu’afin d’élucider les questions en suspens et d’instaurer un climat de confiance dans le caractère exclusivement pacifique du programme nucléaire iranien s’imposent le rétablissement de la suspension de l’enrichissement et la mise en œuvre du Protocole additionnel. Toutes mesures qui vont au-delà des prescriptions du TNP et des dispositions de l’Accord de garanties que l’Iran a conclu avec l’AIEA et qui ne pouvaient lui être imposées que par une décision du Conseil de sécurité prise dans le cadre du chapitre VII de la Charte.13 Telle est la raison d’être de l’intervention du Conseil de sécurité. Cet organe ne s’en cache d’ailleurs pas puisque, dans la première résolution qu’il adopte il est précisé qu’en agissant “en vertu de l’article 40 du chapitre VII de la Charte des Nations Unies pour rendre obligatoire la suspension réclamée par l’AIEA” le Conseil de sécurité demande que “l’Iran suspende, sous vérification de l’AIEA, toutes ses activités liées à l’enrichissement et au retraitement, y compris la recherche-développement.”14 Cette disposition est reprise par toutes les résolutions que cet organe allait par la suite adopter sur la question du nucléaire iranien.15 Pour faire plier l’Iran, le Conseil a obligé les Etats à prendre à son encontre des mesures de plus en plus contraignantes en vue de prévenir la fourniture et le transfert des articles ou activités liés à son programme d’enrichissement et de missiles. Parallèlement, cet organe encourageait la recherche d’une solution diplomatique dans le cadre d’une structure plus élargie, englobant les cinq membres du Conseil et l’Allemagne sous le haut patronage du haut Représentant de l’Union européenne.16 Le recours du Conseil de sécurité au chapitre 12 13

14 15

16

GOV / 2006 / 15 – 27 février 2006. Lettre datée du 16 mars 2006 émanant du Political Director of the British Foreign Office et adressée aux Directeurs des affaires politiques des ministères des Affaires étrangères de l’Allemagne, de la France et des Etats-Unis, dans laquelle il déclarait: “We may also need to remove one of the Iranian arguments that the suspension called for is ‘voluntary.’ We could do that by making the voluntary suspension a mandatory requirement.” Leaked Letter in Full: UK Diplomat Outlines Iran Strategy, Times online du 22 mars 2006, http://www.timesonline.co.uk/tol/news/uk/article744070.ece. Rés. 1696 – 31 juillet 2006, dernier paragraphe du préambule et § 2 du dispositif. Depuis, le Conseil de sécurité a adopté plusieurs autres résolutions dans le cadre du chapitre VII de la Charte, exigeant de l’Iran qu’il suspende l’enrichissement de l’uranium: Rés. 1737 du 27 décembre 2006 – Rés. 1747 du 2 avril 2007 – Rés. 1803 du 3 mars 2008 et Rés. 1835 du 27 septembre 2008. Dans sa Résolution 1696 du 31 juillet 2006, le Conseil de sécurité soutenait “les propositions de l’Allemagne, de la Chine, des Etats-Unis, de la Fédération de Russie et du Royaume-Uni appuyées par le Haut Représentant de l’Union européenne et tendant à la mise en place d’un mécanisme global à long terme qui permettrait de nouer des relations et des liens de coopération avec l’Iran fondés sur le respect mutuel et d’asseoir la confiance internationale dans la nature exclusivement pacifique du programme nucléaire de

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VII de la Charte ainsi que la menace d’utiliser la force armée contre l’Iran, proférées par certains Etats17 parties aux négociations ont constitué les principaux obstacles au règlement de la question nucléaire de l’Iran par la voie diplomatique. Le constat vient d’être dressé par le Directeur général de l’AIEA qui estime que la politique à l’égard de l’Iran menée par les Occidentaux, plus particulièrement les Etats-Unis, a complètement échoué.18 La politique plus conciliante de la nouvelle administration américaine, qui semble avoir renoncé à un changement de régime politique en Iran,19 laisse espérer que la question du nucléaire iranien puisse être réglée par la voie de négociations. Peut-être ce résultat pourra-t-il être atteint à l’issue des négociations que les parties promettent de reprendre,20 à condition toutefois que les protagonistes prennent en compte le subtil équilibre établi par le TNP entre la recherche-développement de l’énergie nucléaire à des fins pacifiques, qui comporte le droit à l’enrichissement de l’uranium, et l’exigence de non prolifération en attendant un désarmement général et complet.21 I. Le droit de l’Iran d’entreprendre des activités d’enrichissement L’article IV du Traité de non-prolifération qualifie le droit d’accès à l’énergie nucléaire d’inaliénable, droit que les autres dispositions de cet instrument ne sauraient affecter. D’après cet article, les Etats parties ont le droit de “développer la recherche, la production et l’usage d’énergie nucléaire à des fins pacifiques sans discrimination.” On s’accorde pour affirmer que ces activités menées dans le cadre d’un programme nucléaire pacifique recouvrent celles entreprises en vue d’enrichir l’uranium ainsi que le stockage des matières fissiles. Les Etats non dotés d’armes nucléaires qui mèneraient de telles activités ne violeraient donc nullement les obligations qu’ils ont contractées en vertu de l’article II de ce même instrument aussi longtemps qu’elles sont soumises

17

18 19

20 21

l’Iran.” Sous l’administration du Président Bush, les Etats-Unis participaient à ces négociations en tant qu’observateurs. Le 5 mars 2006, J. Bolton, ambassadeur des Etats-Unis aux Nations Unies, déclarait: “We are not relying on the Security Council as the only tool in our toolbook to address the problem.” Propos rapportés par Mohammad .J. Zarif, Tackling the Iran-U.S. Crisis: The Need for a Paradigm Shift, J. Int’l Aff., Spring-Summer 2007, at 87. De même, B. Kouchner, ministre français des Affaires étrangères, déclarait le 17 septembre 2007 à TV France: “We have to prepare for the worst and the worst is war.” Interview de M. El Baradei, Directeur général de l’AIEA, accordée au Washington Post et publiée sous le titre de A Conversation with Mohamed El Baradei le 1er février 2009. Cf. message de Barack Obama du 20 mars 2009, à l’occasion du nouvel an iranien, adressé au peuple et aux dirigeants de la République islamique d’Iran. Les commentateurs estiment généralement que, par ce message, la nouvelle administration américaine mettait un terme à la politique antérieure des Etats-Unis visant à favoriser sinon provoquer un changement politique en Iran. Le Monde du 10 avril 2009. Discours de Barack Obama à Prague le 3 avril 2009. Cf. article de L. Zeechini Le réveil du désarmement nucléaire et l’option zéro, Le Monde du 4 avril 2009.

48 Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire

aux garanties de l’AIEA.22 Ce sont les arguments que l’Iran invoque pour faire reconnaître son droit d’enrichir l’uranium. La volonté de l’Iran de maitriser le cycle du combustible nucléaire n’en parait pas moins suspecte. Les activités d’enrichissement sont en effet extrêmement sensibles, le retraitement du combustible utilisé par les centrales nucléaires pouvant constituer une filière par laquelle les Etats peuvent se doter d’une arme nucléaire. Dans le cas de l’Iran, cette suspicion est d’autant plus grande que cet Etat ne dispose pour l’heure que d’une seule centrale nucléaire destinée à produire de l’électricité, à savoir celle de Bouchehr, dont l’approvisionnement en fuel est garanti par son constructeur, la Fédération de Russie. L’Iran rejette pour sa part le bien-fondé de tels soupçons. Ses besoins énergétiques futurs seront tels que le recours à l’électronucléaire s’impose, alors que l’absence de tout instrument international garantissant l’accès au combustible nucléaire le contraint de miser sur des sources d’approvisionnement nationales. A. L’Iran mise sur l’électronucléaire L’intérêt de l’Iran pour la technologie de retraitement, qui permet d’extraire du plutonium faiblement enrichi à partir du combustible irradié, remonte à 1974. Il faisait suite à la publication, en 1973, d’une étude menée par le “Stanford Research Institute” qui estimait que les besoins énergétiques de l’Iran dans un futur proche seraient tels qu’il fallait prévoir l’installation d’au moins 20 centrales nucléaires capables de produire 20 000 mégawatts d’électricité avant 1994.23 L’effort de l’Iran en vue de diversifier ses sources d’approvisionnement en énergie et cesser de miser sur la seule énergie fossile sera salué par le Département d’Etat qui exprima en 1978 l’espoir que les accords avec les compagnies américaines pour la livraison de centrales nucléaires puissent être finalisés dans un proche avenir.24 Depuis, la forte demande en énergie de l’Iran, consécutive au doublement de sa population ainsi que la baisse sensible du rendement des champs pétrolifères25 confirment l’opinion qu’il n’est guère raisonnable de compter uniquement sur l’énergie thermique et qu’il est préférable de réserver une partie de la production nationale de pétrole à l’exportation. On estime qu’une

22

23 24 25

Mohammad I. Shaker, The Nuclear Non-Proliferation Treaty: Origin and Implementation 1959-1979 251 (3 vols., 1980). L’auteur cite l’un des hauts responsables de la délégation des Etats-Unis à la Conférence ayant abouti à l’adoption du Traité de non-prolifération qui aurait précisé que les Etats parties à ce Traité ont, conformément à son article IV, le droit d’enrichir l’uranium. Zarif, supra note 17, p. 80. The US-Iran Nuclear Energy Agreement, Department of State Memorandum, 20 octobre 1978. Roger Stern, The Iranian Petroleum Crisis and United Sates National Security, 104 n° 1377 PNAS [Proceedings of the National Academy of Sciences], 2 January 2007; International Monetary Fund, Islamic Republic of Iran: Statistical Appendix, IMF Country Report 04/307 (2004).

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production de 20,000 mégawatts d’électricité par les centrales permettrait au pays d’économiser quelque 190 millions de barils de brut par an.26 Cette option électronucléaire amena tout naturellement l’Iran à se préoccuper de l’accès sans entrave au combustible pour ses futures centrales. C’est dans cet objectif qu’il s’est associé à hauteur de 10 au capital de la société Eurodif, propriétaire de l’usine d’enrichissement de Tricastin, en France. Or, après 1979, en dépit de ses engagements, la France refusait à l’Iran le droit d’enrichir son uranium dans ce cadre,27 refus à l’origine d’un important contentieux, d’ailleurs toujours en suspens, entre les deux Etats. De même, les Etats-Unis, qui étaient également tenus, en vertu d’un accord conclu avec l’Iran avant 1979, de fournir le combustible destiné à un réacteur de recherche de 5 mégawatts installé à Téhéran, s’abstint de toute livraison. Dans ce cas précis, l’interruption de livraison était d’autant plus incompréhensible que ce réacteur produisait des radio-isotopes pour des applications médicales, agricoles et industrielles et que ses activités étaient soumises au contrôle de l’AIEA dans le cadre de l’Accord conclu entre elle et l’Iran. Ces mésaventures ne laissaient pas d’autre option à l’Iran que de se lancer dans des activités d’enrichissement, et ce d’autant plus que l’accès au marché international du combustible nucléaire est extrêmement fermé et n’offre aucune garantie. B. L’absence de garantie d’accès de l’Iran au combustible nucléaire Lors de négociations informelles tenues à Londres en septembre 1977, les 15 principaux fournisseurs de matériel nucléaire s’engageaient à soumettre l’exportation d’équipements nucléaires à des fins pacifiques à destination d’Etats non dotés d’armes nucléaires à certaines restrictions. Ils adoptaient à cette fin certaines directives accompagnées d’une liste de base de matières, de matériels et de technologies sensibles destinés à l’enrichissement et devant être soumis à un contrôle très strict.28 Les efforts accomplis par la communauté internationale pour garantir l’accès au combustible nucléaire devaient tous échouer. En 1987, dans le cadre de l’AIEA, le Comité de la sécurité de l’approvisionnement chargé d’élaborer un instrument juridique contraignant pour garantir l’accès au combustible nucléaire mettait un terme à ses travaux par un constat d’échec. Il en alla de même des efforts accomplis par un groupe d’experts nommés par le Directeur général de l’AIEA.29 26 27

28

29

Zarif, supra note 17, p. 78. Akbar Etemad, Nucléaire iranien: quelques questions aux Européens, Le Monde du 20 janvier 2005. L’auteur a été président de l’Organisation de l’énergie atomique de l’Iran avant la Révolution de 1979) Cf. Rapport d’information de la Commission des Affaires étrangères de l’Assemblée nationale française en conclusion d’une mission d’information sur “l’Iran et l’équilibre géopolitique au Moyen-Orient.” Rapport 1324, 18 décembre 2008, pp. 121-122. Henri Pac, Droit et Politiques Nucléaires 306 (1994), et Raphaël Prenat, Les régimes multilatéraux de maitrise des exportations de technologies sensibles à utilisation militaire, 44 Annuaire français de droit international 298-311 (1998). INFCICR / 640 – 22 février 2005.

48 Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire

La question figura à l’ordre du jour de la Conférence des Nations Unies pour la promotion de la coopération internationale dans le domaine de l’utilisation pacifique de l’énergie nucléaire, réunie à Genève en 1987. Aux dires de M. Shaker, président de cette Conférence, le refus des grands fournisseurs de combustible nucléaire d’accorder des concessions aux Etats demandeurs est à l’origine de l’échec de la Conférence.30 Encore récemment, le Groupe de personnalités de haut niveau désignées par le Secrétaire général des Nations Unies se préoccupait de cette question récurrente. Il proposait en effet que des négociations soient ouvertes sans tarder en vue d’élaborer un arrangement fondé sur les articles III et IX du statut de l’AIEA qui l’habiliterait à garantir la fourniture de matières fissiles aux fins d’utilisation pacifique.31 L’idée a été reprise par le Secrétaire général qui, pour encourager les Etats fournisseurs à s’engager dans cette voie, proposait que, tout au long des négociations, les Etats acceptent un moratoire sur la construction de nouvelles installations d’enrichissement d’uranium, droit qui leur est reconnu par le TNP.32 Aucune suite n’allait être donnée à ces propositions. Les réticences des Etats fournisseurs de combustible nucléaire à s’engager dans cette voie sont à l’origine du refus de l’Iran d’accepter l’offre de la Troïka de garantir l’approvisionnement de l’Iran en combustible nucléaire en contrepartie d’une renonciation définitive d’enrichir l’uranium sur son territoire,33 condition inacceptable pour l’Iran, d’où sa décision du 9 janvier 2006 de reprendre ses activités de conversion d’uranium, interrompues sur une base volontaire depuis le 21 octobre 2003, date du début des négociations avec la Troïka. Dans sa communication du 2 février 2006 à l’AIEA, l’Iran justifie par ailleurs la reprise de ses activités d’enrichissement et de développement en se fondant sur la loi du 22 novembre 2005, votée par le parlement iranien, laquelle oblige l’exécutif, en cas de saisine du Conseil de sécurité, à s’en tenir uniquement à la mise en œuvre des obligations que l’Iran a contractées dans le cadre de l’Accord de garanties.34 Du point de vue juridique, le refus de l’Iran de se plier aux injonctions du Conseil de sécurité se justifie par le fait que sa saisine par l’AIEA ne s’est pas faite dans le respect des dispositions de son statut. En effet, le Conseil des gouverneurs s’est fondé 30 31

32

33 34

Mohammad I. Shaker, The Evolving International Regime of Nuclear Non-Proliferation, 321 Recueil des Cours 135 (2006). Un monde plus sûr: notre affaire à tous. Rapport du Groupe de personnalités de haut niveau sur les menaces, les défis et le changement, A / 59 / 565 - 2 décembre 2004. Recommandation 130 qui exprime le souhait des personnalités de haut niveau que s’ouvrent des négociations “au sujet d’un arrangement fondé sur les dispositions actuelles des articles III et IX du statut de l’AEIA par lequel l’Agence serait habilitée à servir de garant pour la fourniture de matières fissiles à des utilisateurs nucléaires.” Dans une liberté plus grande: développement, sécurité et respect des droits de l’homme. Rapport du Secrétaire Général A / 59 / 2005 - 24 mars 2005. Le Secrétaire Général estime qu’il faudrait “chercher à inciter les Etats à renoncer d’eux-mêmes à se doter des moyens de production d’uranium enrichi et de séparation de plutonium tout en leur garantissant un approvisionnement en combustible à des usages pacifiques.” INFCICR / 651 – 8 août 2005. INFCICR / 666 – 3 février 2006.

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sur “une violation au sens du § c) de l’article XII du statut de l’AIEA.”35 Conformément à cette disposition, il appartient aux inspecteurs de l’Agence de rendre compte au Directeur général de toute violation de l’Accord de garanties par un Etat membre. Le Directeur général transmet ensuite leur rapport au Conseil. Or, dans le cas de l’Iran, contrairement au cas Libyen, la violation des dispositions de l’Accord de garanties n’a pas été constatée matériellement par les inspecteurs,36 le Conseil des gouverneurs s’étant fondé sur l’“appréciation d’ensemble”37 du Directeur général pour saisir le Conseil de sécurité. Ceci amena l’Iran à déclarer que cette saisine n’avait aucun fondement “technique et légal” et qu’elle était basée uniquement sur des considérations d’ordre politique, à savoir rendre obligatoire, par le biais du Conseil de sécurité, l’interruption des activités d’enrichissement de l’uranium.38 De plus, cette saisine s’est faite alors que l’Iran, ainsi que le Secrétaire Général des Nations Unies l’a affirmé, voulait “sérieusement revenir à la table des négociations.” En effet, d’après ce dernier, le dossier aurait du être traité “si possible, dans le cadre de l’AIEA” et la saisine du Conseil de sécurité prendre place “une fois que ce processus sera épuisé,”39 ce qui n’a pas été le cas. D’une manière générale, pour dépolitiser autant que possible la décision de saisir le Conseil de sécurité, il faudrait que les rapports entre ce dernier et l’AIEA soient précisés et réglementés. C’est dans ce sens que devrait être interprétée la recommandation figurant au rapport présenté par le Groupe des personnalités de haut niveau concernant le renforcement des relations entre ces deux organes.40 II. L’obligation de l’Iran de soumettre l’enrichissement de l’uranium au contrôle de l’AIEA La décision de l’Iran de s’en tenir aux seules obligations que l’Accord de garanties conclu avec l‘AIEA lui impose n’équivaut nullement à un arrêt des inspections de ses activités d’enrichissement de l’uranium par des inspecteurs de l’Agence. Conformément à l’Accord de garanties, la coopération de l’AIEA avec l’Iran a, depuis la reprise de ces activités, ainsi permis d’élucider un certain nombre de questions en suspens. Il est vrai que le Directeur général de l’AIEA continue d’exiger que l’Iran accepte non 35 36 37 38

39

40

GOV / 2005 / 77 - 24 septembre 2005. Delphine Pouëzat, L’Agence internationale de l’énergie atomique et le Conseil de sécurité des Nations Unies, 51 Annuaire français de droit international 4 (2005). GOV / 2005 / 77- 24 septembre 2005. IFCICR / 665 – 31 janvier 2006 et INFCICR  / 666 – 3 février 2006. L’implication du Conseil de sécurité est destinée à échapper à la discussion sur le droit des Etats d’enrichir l’uranium. Philippe Weckel, Le Conseil de sécurité des Nations Unies et l’arme nucléaire, 52 Annuaire français de droit international 192 (2006). Déclaration du 12 janvier 2006 du Secrétaire Général des Nations Unies. Anne-Sophie Millet-Devalle, Application du Traité de non prolifération et situation de l’Iran (16 décembre 2005 – 29 mars 2006) 110 Revue générale de droit international public. Chronique des faits internationaux 467 (2006). Pouëzat, supra note 36, p. 5.

48 Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire

seulement le Protocole additionnel41 mais qu’il aille même au-delà de ses prescriptions en accordant à l’Agence le droit d’interroger des personnes impliquées dans son programme nucléaire.42 A. L’obligation de l’Iran dans le cadre de l’Accord de garanties S’agissant de s’assurer de la nature exclusivement pacifique des activités nucléaires de l’Iran, l’AIEA constitue incontestablement, en raison de son savoir-faire, la seule autorité qui puisse se prononcer à cet égard, point sur lequel les protagonistes s’accordent. L’Iran, qui estime que les négociations diplomatiques que le Conseil de sécurité envisage devraient “servir à appuyer et faciliter le processus d’interaction de l’Iran avec l’AIEA, lequel constitue le principal moyen de régler la question” du nucléaire iranien.43 De son côté, le Conseil de sécurité, une fois saisi de cette question, soulignait qu’“il est nécessaire que l’AIEA poursuive son travail afin d’élucider les questions que suscite encore le programme nucléaire de l’Iran.”44 Les multiples rapports que le Directeur général de l’Agence a présentés à ce jour à la demande du Conseil de sécurité révèlent des avancées indéniables. Les installations d’enrichissement de combustible exploitées par l’Iran restent soumises au contrôle de l’AIEA. Le Directeur général reconnaît que, depuis mars 2007, ces installations ont fait l’objet de 21 inspections inopinées.45 Les matières nucléaires s’y trouvant et toutes les centrifugeuses restent soumises aux mesures de confinement et de surveillance, ce qui a permis à l’Agence de rapporter que l’Iran dispose désormais d’une quantité d’uranium faiblement enrichi.46 L’Iran ne s’en cache d’ailleurs pas, ainsi que l’attestent les multiples déclarations des autorités de ce pays.47 L’AIEA semble ainsi être convaincue que l’Iran ne produit que de l’uranium faiblement enrichi. C’est ainsi qu’elle a été amenée à accepter les explications avancées par l’Iran sur l’origine extérieure de la source de contamination par des particules

41 42 43

44 45 46

47

GOV / 2008 / 4 – 22 février 2008. GOV / 2005 / 77 – 24 septembre 2005. Lettre datée du 11 octobre 2006, adressée au Secrétaire Général par le Représentant permanent de la République islamique d’Iran auprès de l’Organisation des Nations Unies. Annexe. Réponse de la République islamique d’Iran aux propositions présentées par les cinq membres permanents du Conseil de sécurité et l’Allemagne A / 61 / 514 – S / 2006 / 806 – 12 octobre 2006. Rés. 1696 § 6 – 31 juillet 2006. GOV / 2008 / 8 – 19 février 2009. Il s’agit de 1010 kg d’uranium faiblement enrichi par 3963 centrifugeuses, transférés, d’après le rapport du Directeur général (GOV / 2008 / 8 du 19 février 2009) aux laboratoires polyvalents de Téhéran. Déclaration du Président de la République à l’occasion de la journée nationale du nucléaire, le 11 avril 2009, selon laquelle 7000 centrifugeuses produisent de l’uranium faiblement enrichi en Iran.

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d’uranium hautement enrichi prélevées sur les composantes de centrifugeuses à Natanz par les inspecteurs de l’AIEA.48 En vue de régler toutes les questions en suspens, l’Iran et l’AIEA ont conclu le 21 août 2007 à Téhéran un accord49 dont se félicite le Conseil de sécurité50 qui note avec satisfaction les progrès réalisés dans la mise en œuvre de ce plan de travail tels que rapportés par le Directeur général de l’Agence.51 Outre ces questions, les Etats-Unis en ont identifié d’autres qui méritent, à leur avis, d’être élucidées, présentant à l’appui à l’AIEA des documents qu’ils estiment être confidentiels. A plusieurs reprises, le Directeur général a regretté de n’être pas en mesure de les communiquer à l’Iran, principal intéressé.52 Bien entendu, les réponses apportées à ces questions, aussi satisfaisantes soient-elles, ne pourront suffire à mettre un terme au différend. L’AIEA continue en effet à prétendre qu’elle ne sera en mesure de donner des assurances crédibles quant à l’absence de matières et d’activités nucléaires non déclarées en Iran que si le Protocole additionnel est appliqué.53 B. L’application du Protocole additionnel par l’Iran La découverte d’un programme nucléaire à finalité non pacifique en Irak avait, en 1991, amené l’AIEA à améliorer ses capacités de détection. Le modèle de protocole adopté par le Conseil des gouverneurs54 et recommandé aux Etats était destiné à élargir la gamme des informations à fournir par ces derniers tout en offrant davantage de moyens aux inspecteurs de l’AIEA. Il leur confère en effet, avec un préavis de 24 heures pouvant être ramené à deux heures, un droit d’accès à tous les points du cycle du combustible nucléaire ainsi que le droit de prélever des échantillons d’environnement en dehors des sites déclarés. Bien que la majorité des Etats membres de l’AIEA n’aient pas encore accepté d’appliquer les prescriptions du Protocole, on considère désormais que les règles qu’il énonce devraient être érigées en normes universelles.55

48 49 50 51 52 53 54

55

GOV / 2005 /67 - 2 septembre 2005. Points d’accord entre la République islamique d’Iran et l’AIEA sur les modalités de règlement des problèmes en suspens INFCICR / 711 - 29 août 2007. Rés. 1803 § 2 – 3 mars 2008. GOV / 2008 / 4 - 22 février 2008. Interventions du Directeur général devant le Conseil des gouverneurs les 27 novembre 2008 et 2 mars 2009. Cf. également GOV / 2009 / 8 du 19 février 2009. GOV / 2008 / 4 - 22 février 2008 et GOV / 2009 / 8 - 19 février 2009. Model Additional of the Agreement (s) between State (s) and IAEA for the Application of Safeguards INFCICR / 540 (corr) May 1998. Cf. Théodore Hirsh, IAEA Additional Protocol: What It Is and Why It Matters, 11 n° 3 The Non-Proliferation Review 140-163 (Fall / Winter 2004). Recommandation n° 129 du Groupe de personnalités de haut niveau, supra note 31. Le groupe des fournisseurs ne conditionne pas l’exportation de matériel et produits nucléaires à l’acceptation du Protocole additionnel par le pays destinataire. Cf. Shaker, supra note 30, at 89.

48 Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire

A partir du 10 novembre 2003, l’application provisoire et volontaire du Protocole additionnel par l’Iran, en tant que mesure de confiance, a permis à l’AIEA de mener à bien de nombreuses inspections avec accès de ses inspecteurs à divers complexes industriels en vue d’y prélever des échantillons56 dont l’analyse a permis de s’assurer qu’aucune déviation n’avait été commise dans les activités nucléaires de l’Iran. Ce n’est que lorsqu’il s’est avéré que ce qu’exigeait la Troïka était une renonciation définitive de la part de l’Iran à son droit à l’enrichissement de l’uranium que cet Etat a mis un terme à l’application du Protocole additionnel. Les Etats parties à la nouvelle structure de négociations semblent adopter une attitude plus réaliste. En effet, dans la lettre accompagnant les propositions qu’ils soumettaient à l’Iran, les cinq membres permanents du Conseil de sécurité et l’Allemagne ont bien réaffirmé qu’ils reconnaissaient à l’Iran “le droit de mener des activités de recherche, de production et d’utilisation nucléaires à des fins pacifiques, conformément à ses obligations aux termes du Traité de non prolifération.” Et d’ajouter: “Lorsque la communauté internationale sera convaincue de la nature exclusivement pacifique du programme nucléaire, ce programme sera traité de la même manière que celui de tout autre Etat non doté d’armes nucléaires.”57 Doit-on en conclure que cette affirmation équivaut à une reconnaissance du droit de l’Iran d’enrichir l’uranium? Pour dissiper tout malentendu, une référence expresse au droit de l’Iran, en vertu de l’article IV du TNP, dans les résolutions du Conseil de sécurité serait la bienvenue. De même, il serait judicieux d’établir clairement quels sont les critères objectifs dont la mise en œuvre établirait la “confiance internationale” tant recherchée.58 Toutes précisions qui encourageraient l’Iran à appliquer les principales dispositions des résolutions du Conseil, à savoir s’engager une nouvelle fois à appliquer les dispositions du Protocole additionnel et interrompre l’enrichissement aussi longtemps que dureront les négociations, en vue de trouver une formule satisfaisante pour tous. La proposition de l’Iran, en tant que mesure de confiance, de procéder à l’enrichissement dans le cadre d’un partenariat, avec la participation des secteurs tant privé que public d’autres Etats,59 mériterait d’être examinée plus avant.

*

56 57 58 59

GOV / 2004 / 49 - 18 juin 2004. Le complexe industriel Kolahdouz ainsi que les usines d’armement de Lavizan-Shian à Téhéran ont été visitées par les inspecteurs de l’AIEA. Communication du 4 mars 2008 INFCICR / 723 - 6 juin 2008. Communication de l’Iran du 11 octobre 2006 A / 61 / 514 - S /2006 / 806 - 12 octobre 2006. Proposition faite à l’Assemblée Générale des Nations Unies par le Président de la République islamique d’Iran le 17 septembre 2005.

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Ainsi, la maitrise du cycle nucléaire par l’Iran et sa volonté d’enrichir l’uranium sur son propre territoire60 en vue de garantir l’autonomie énergétique de ses futures centrales nucléaires constituent la principale pomme de discorde entre les divers protagonistes. Ne pas lui reconnaître ce droit sous prétexte que son exercice menacerait la paix et la sécurité internationale est inadmissible dans la mesure où un tel refus mettrait en cause l’attractivité du régime de non prolifération nucléaire et accroitrait d’autant sa précarité. De surcroit, s’il n’est pas tenu compte des assurances que cet Etat pourrait donner quant à la finalité pacifique de son programme nucléaire, il mettrait en cause l’équilibre délicat établi par le Traité de non prolifération: le renoncement des Etats à se doter d’armes nucléaires en contrepartie de la reconnaissance de leur droit inaliénable à développer la recherche, la production et l’usage de l’énergie nucléaire à des fins pacifiques. Ce refus a d’ores et déjà suscité les réactions des Etats non dotés d’armes nucléaires qui craignent à juste titre de le voir retourné contre eux. Ils ont réagi à plusieurs reprises dans le cadre du Mouvement des nonalignés pour réaffirmer leur droit de maitriser le cycle nucléaire.61 Pour assurer une plus grande crédibilité du régime de non prolifération, il faudrait que les Etats dotés d’armes nucléaires se décident enfin à s’engager comme prévu dans le processus de désarmement nucléaire. L’article VI du TNP engage ces Etats à mener de bonne foi des négociations en vue de cesser la course aux armements nucléaires et de conclure un traité de désarmement général et complet.62 On ne peut que se féliciter de la décision du Président des Etats-Unis de se lancer dans cette voie,63 entreprise qu’il qualifie de longue haleine. En attendant, le Conseil de sécurité pourrait contribuer efficacement au désarmement nucléaire en encourageant la création d’une zone exempte d’armes nucléaires au Moyen-Orient. Une telle zone engloberait Israël mais exclurait la Turquie, Etat partie au Traité de l’Atlantique Nord. En prenant une telle initiative, il ne ferait que donner suite à l’idée qu’il avait exprimée au lendemain de la guerre Irak-Koweit. Il avait estimé à cette époque que le respect par l’Irak de ses obligations en vertu du TNP représenterait une étape sur la voie de l’établissement d’une telle zone.64 Aujourd’hui, 60

61

62

63 64

C’est la raison pour laquelle l’Iran a rejeté l’offre des membres permanents du Conseil de sécurité et de l’Allemagne de participer, en tant que partenaire à une facilité internationale installée en Russie qui lui fournirait des services d’enrichissement pour qu’il puisse disposer d’une provision fiable de carburant et d’un stock de combustible qui représenterait jusqu’à cinq ans d’approvisionnement INFCICR / 723 – 6 juin 2008. S / 2006 / 1018 – 22 décembre 2006. D’après le Mouvement des non-alignés, “States’ choices and decisions in the field of peaceful uses of nuclear technology and its fuel cycle must be respected.” D’après la Cour internationale de Justice, “[i]l existe une obligation de poursuivre de bonne foi et de mener à terme des négociations conduisant au désarmement nucléaire dans tous ses aspects sous un contrôle international strict et efficace.” Avis consultatif sur la licéité de la menace ou de l’emploi d’armes nucléaires, § F de l’avis – 8 juillet 1996. Discours du Président des Etats-Unis Barack Obama à Prague. Cf. Le Monde du 7 avril 2009. Rés. 687 – 3 avril 1991 § 14.

48 Djamchid Momtaz, Le programme nucléaire de l’Iran et le régime de non-prolifération nucléaire

le Conseil de sécurité tient un discours identique, à cette différence près que la question du nucléaire iranien a supplanté celle de l’Irak. Se référant à une résolution du Conseil des gouverneurs de l’AIEA,65 le Conseil estime en effet qu’ “une solution de la question nucléaire iranienne contribuerait aux efforts mondiaux de non prolifération et à la réalisation de l’objectif d’un Moyen-Orient exempt d’armes de destruction massive.”66 Le temps n’est-il pas venu que le Conseil de sécurité s’attaque de front à ces deux questions interdépendantes: l’absence de certitude quant à la finalité exclusivement pacifique du programme nucléaire de l’Iran et l’armement nucléaire d’Israël qui représente une menace bien plus importante que l’Iran pour la sécurité du Moyen-Orient?

65 66

GOV / 2006 / 14 - 4 février 2006. Rés. 1803 – 3 mars 2008.

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Chapter 49 U.N. Realities Nicholas Rostow*

I found it very difficult and exacting to write about the UN, that complex and unpredictable institution, which is at one and the same time intimately immersed in world events and yet primly self-contained—truly, a ‘play within the play.’ Pascal, if he had lived in our times, might well have written the definitive book about the United Nations—and perhaps would have concluded that l’ONU a des raisons que la raison ne connâit pas. —Hernane Tavares de Sá1

This essay examines U.N. Security Council actions with respect to Darfur in 2004-05 as a case study in the way States operate in the United Nations. The episode highlights the fact that the United Nations is a forum and an instrument in which States, when they can or will, operate collectively. It also is a place where diplomatic interaction often reflects the balance of power. Accordingly, the balance of power remains relevant as a guide to policy formation and policy analysis. In the case of Darfur, the U.N. Security Council process resulted in the weight of the international community appearing to be thrown against State behavior that violated individual rights and shocked the conscience. That the crisis continues years later shows that appearance is not the same as action and that the interests of States dictate what they will or will not do whatever the pressures within or on the international organization. In addition, the aspiration for world order or minimum world order under law, including respect of the independence of States and limitations on cross-border measures to address internal conditions, can be invoked to be a brake on effective action. At the beginning of the twenty-first century, therefore, the State remains a crucially important fact of international life and the operation of international organizations. Though the United Nations, for example, like other international organizations, has and creates its own reality—in fact, a multiplicity of realities * 1

The views expressed are my own and do not necessarily reflect the views of the State University of New York or any other entity with which I am or have been associated. Hernane Tavares de Sá, The Play Within the Play: The Inside Story of the UN, at ix (1966).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 1003-1024.

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owing to the multiplicity of entities under the “United Nations” aegis—and its own internal law that can have important connections with the larger community and legal structure in which it operates,2 Member States act at the United Nations in ways influenced and frequently shaped, if not dictated, by non-U.N. realities.3 These realities may include commitment to international law and international processes of authoritative decision. Yet, as the long-serving Russian Permanent Representative to the United Nations, Sergey Lavrov, once remarked during an informal consultation on the International Criminal Court, invocations of international law are common at the United Nations to support every conceivable argument or point of view without thereby making the law into a fixed reference point. In order to understand the failures of the United Nations with respect to Darfur, it is useful to recall why States created the United Nations in the form they did. They did not replace the international system of States so much as continue the attempt, which began much earlier, to structure international relations in order to reduce the risk of general war. The United Nations was born and shaped by the experience of world wars and repeated international crises.4 That remains worth remembering as we consider both operations of the United Nations in new contexts and calls for reform. I. The League of Nations and the United Nations The present shape of the international order resulted from centuries of uneven development, emanating outward across the world from Europe. The post-medieval State developed in Europe as the world’s most effective war-making and security organization as well as the entity within which the most productive economic systems could develop and became a global model.5 The State’s capabilities in regard to war-making and economic development have made each succeeding general war more horrible than its predecessor. As a result, governments came to see a need to organize international relations to minimize the risk of general war. After the wars of the French Revolution and Napoleon, this goal became the highest priority on the international agenda of States. With this idea came the view that Great Powers bore especial responsibility, as a result of their power, with respect to the maintenance of 2 3

4 5

See, e.g., Benedict Kingsbury, Nico Kirsch & Richard B. Stewart, The Emergence of Global Administrative Law, Law & Contemp. Probs, Summer/Autumn 2005, at 15. There are exceptions. Examples exist of Permanent Representatives accepting a bribe to vote a certain way and of votes cast without instructions from capitals or even informing capitals. In one such case, the head of state to whom a protest was made pleaded ignorance: his Permanent Representative in New York had no instructions, and the head of state had no idea how he was voting. Inis L. Claude, Jr., Swords into Plowshares: The Problems and Progress of International Organization 71 (4th ed. 1984). Philip Bobbitt, The Shield of Achilles: War, Peace, and the Course of History, at xxv (2002). It also is the most effective instrument of terror and repression the world has ever seen.

49 Nicholas Rostow, U.N. Realities

international peace: hence the Congress of Vienna in 1814-15 and the birth of an effort in Europe to minimize the risk of general war among the Great Powers through concerted action by the most powerful States; the League of Nations in 1919, which purported to unite all States to resist war; and the Charter of the United Nations in 1945, which established and re-established fundamental rules for international relations worldwide, provided a constitution for an international organization of global reach, and empowered the U.N. Security Council to act on behalf of all U.N. Members to strengthen or restore international peace. Each of these institutions differentiated between States with the power to maintain international order and those smaller States lacking such power.6 Great Power status within or outside an international organization reflected reality defined in a way that had withstood the test of time: a Great Power could only be defeated in war by a coalition of other Great Powers.7 With respect to the world represented inside international organizations, including the United Nations, the institutions “registered power; [they] did not confer it.”8 A limit on the ability of international organizations to act effectively is the requirement that States agree. States, whatever their strength, have divergent interests. As a result, any system that confides responsibility to a group of them has never resulted in individual States renouncing all responsibility for their own security. Therefore, the U.N. Charter reaffirms the “inherent” right of self-defense,9 and the balance of power remains a useful analytic concept, policy precept, and desirable goal if peace is to be maintained and independent States permitted to exist.10 Because the balance of power is both “the guarantee of the independence of nations” and “the occasion of war,”11 for two hundred years, States have worked to minimize the need for individual action in security matters by building multilateral institutions with policing capacity. The first European efforts to establish permanent institutions for the maintenance of international peace—the Holy Alliance and the Concert of Europe—represented 6

7

8

9 10

11

There are always exceptions, and China before and after World War II is one. No one doubts the rightfulness of China presently being a Permanent Member of the United Nations. That was not the case in 1945. In 1815, for example, the European Great Powers were Great Britain, France, Russia, Prussia, and Austria. Portugal, Spain, Holland, and Sweden were secondary powers. Forty lesser powers and four free cities made up the rest of Europe, from the Atlantic to the Urals. See Ludwig Dehio, The Precarious Balance: Four Centuries of the European Power Struggle (Charles Fullman trans., 1962); Edward Vose Gulick, Europe’s Classical Balance of Power 4 (1955); Paul Kennedy, The Parliament of Man: The Past, Present, and Future of the United Nations 15 (2006). Claude, supra note 4, at 72. The rule does not apply to internal workings of the United Nations. The Ambassador of Liechtenstein, for example, has been a most effective and influential diplomat inside the United Nations despite or perhaps because his country does not carry weight outside the United Nations. U.N. Charter art. 51. Martin Wight, Systems of States (Hedley Bull ed., 1977); Martin Wight, The Balance of Power, in Diplomatic Investigations: Essays in the Theory of International Politics (Herbert Butterfield & Martin Wight eds., 1966). Wight, supra note 10, at 174.

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an acknowledgement that special responsibilities for maintaining peace accompanied great power and that they should be discharged in the context of periodic intergovernmental meetings.12 At the same time, the Great Powers that defeated France in 1815 did not share perspectives on the internal constitution of States. Almost immediately after peace was reestablished, they began to disagree about whether the maintenance of international peace included the maintenance of existing governments. This divergence led to the breakdown of these early attempts to work multilaterally. Yet efforts to maintain an effective Concert of Europe continued throughout the nineteenth century although results disappointed. Great Power conflict more than unity and numerous armed conflicts in and on the periphery of Europe marked the period that ended in the Great War, World War I. Nevertheless, the nineteenth century was relatively peaceful when compared to the previous three centuries and the one that followed.13 World War I fueled efforts to organize international relations so as to avoid a repetition of that calamitous conflict. The establishment of the League of Nations reflected a global approach to issues of international peace, the need for an organization with global reach and membership, and the requirement of a formal structure with a permanent bureaucracy to support it.14 These events constituted steps in the creation of an international society governed by law. The development of nuclear weapons, which added hydraulic pressure to maintain minimum order to avoid nuclear war, and the collapse of the Soviet Union, which was followed by a flowering of international law, accelerated the legal maturation of the international system. After 1989, more and more States joined a common international economic system, shared political ideals, and conducted their international relations according to similar conceptions of international law. A. The League of Nations The Covenant of the League of Nations, like its successor the Charter of the United Nations, established high aspirations for the organization it created: international

12

13

14

See generally Stanley Chodorow et al., The Mainstream of Civilization Since 1660 (6th ed. 1994); F.H. Hinsley, Power and the Pursuit of Peace (1963); Carsten Holbraad, The Concert of Europe: A Study in German and British International Theory, 1815-1914 (1970). The British were always uncomfortable with the more authoritarian regimes of Russia, Prussia, and Austria-Hungary. British Foreign Secretary Lord Castlereagh called the Holy Alliance a “piece of sublime mysticism and nonsense.” Chodrow et al., supra, at 660. The most destructive of nineteenth-century wars and among the most destructive in history was the American Civil War. See generally Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War (2008). League of Nations Covenant art. 6. The convictions, stature, and effort of Woodrow Wilson were indispensable to the creation of the League of Nations. See Ferdinand Czernin, Versailles, 1919: The Forces, Events, and Personalities that Shaped the Treaty (1964); Margaret MacMillan, Paris 1919 (2001); Robert W. Tucker, Woodrow Wilson and the Great War (2007).

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cooperation and international peace and security.15 The Covenant created two intergovernmental organs, one with restricted and one with potentially universal membership, each operating by unanimity and each having similar responsibility. The Council of the League consisted of representatives of the victorious Principal Allied and Associated Powers of World War I and representatives of four other States selected by the League Assembly “from time to time in its discretion,”16 and the Assembly consisted of all League Members.17 The Covenant granted the Council power, with the consent of the Assembly, to increase the membership of the League and of the Council and authorized both bodies to consider any issue affecting the peace of the world or falling within “the sphere of action” of the League of Nations. Absent unanimity, “the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice.”18 Apart from setting forth procedures to follow in the event of disputes or threats to the peace, the substantive focus of the Covenant was reduction of armaments and the disposition of former German colonies and parts of the defunct Ottoman Empire. A number of features leap out from these words. First, the League gave a privileged position to those States that had led the victory over Germany and AustriaHungary and had paid the highest price in blood and treasure. Second, the Covenant left sovereignty intact: there was no consensus, for example, to allow the League to dictate to the rest of the international community. Third, by explicitly leaving States free to defend “right and justice” when they could not agree within the League, the Covenant recognized that failure to achieve unanimity ought not to favor aggressors. The Covenant addressed the problem of war in the same spirit. Thus, [s]hould any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not. It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League.19

Collective security through the League of Nations consequently was an extension of the Concert of Europe to a global platform. Yet, the League of Nations, operating under this constitutional structure, was unable to prevent or successfully address the 15 16 17 18 19

See League of Nations Covenant pmbl. Id. art. 4. See id. art. 3. Id. art. 15. Id. art. 16.

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series of crises that led to World War II. As a result, in 1946, its members disbanded it.20 The League’s failures—that is, the failures of the League Members and such nonMembers as the United States21—effectively to provide a block against Japanese, Italian, and German aggression in the 1930s led to the different approach of the U.N. Charter at the end of World War II. B. The United Nations: The U.N. Charter Scheme More than sixty years after its founding, despite the sometimes appalling failure of Member States and the U.N. Secretariat,22 the United Nations still exists. The drafters of the U.N. Charter codified the most important rules of international conduct23 and created a constitution for what became a sprawling international organization with sub- and related-organizations with global reach and impact.24 As with the Covenant of the League of Nations, the U.N. Charter set forth the organization’s raison d’être: to prevent a recurrence of general war among the Great Powers by creating fora in which they could work and act together to maintain peace and address the transnational economic and social issues that provide a backdrop to threats to the peace, 20 21

22

23 24

1 L. Oppenheim, International Law 401 n.1 (H. Lauterpacht ed., 8th ed. 1955). “The primary cause of the failure of Western diplomacy in the interwar period, and therefore the ultimate cause of the Second World War, was the attempt of the United States to escape down the rabbit-hole of history to the foreign policy of President James Monroe and Secretary of State John Quincy Adams.” Eugene V. Rostow, A Breakfast for Bonaparte: U.S. National Security Interests from the Heights of Abraham to the Nuclear Age 283 (1993). Viscount Cecil, one of the leading British advocates of the League, did not think the unanimity rule in fact hampered the functioning of the League. Claude, supra note 4, at 146. The abject and pusillanimous response of the U.N. Secretariat and U.N. Member States to the 1994 Rwanda genocide is only the darkest of episodes in the Organization’s history so far. Lead responsibility for the international community failure to take action to stop the murders once again belonged to the United States. Ambassador Herbert Okun, then Deputy Permanent Representative to the United Nations, recalls that it was the worst moment of his long diplomatic career when the United States threatened to veto any U.N. Security Council resolution authorizing any use of force to stop the genocide. The history of the United Nations is replete with other examples, although Rwanda stands out in terms of loss of life (some 900,000 killed in a three month period). U.N. Charter arts. 2(4), 51 (prohibition on the threat or use of force; inherent right of individual and collective self-defense). As this essay is concerned principally with the Security Council, the General Assembly, and, to a lesser degree, the Secretariat, it will not dwell on the other principal organs of the United Nations: the Economic and Social Council (ECOSOC), the Trusteeship Council, and the International Court of Justice (ICJ). Of the principal organs, four are inter-governmental bodies. Some judges on the International Court of Justice have treated the Court as inter-governmental, keeping their capitals fully and currently informed and conforming their judgments to national policies and instructions. See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 158 (June 27) (separate opinion of Judge Lachs). On the far-reaching impact of U.N. entities, see Kennedy, supra note 7.

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breaches of the peace, or acts of aggression. Nothing about the origins or conduct of World War II had vitiated the Covenant’s articulation of international community goals with respect to the maintenance of international peace and security.25 The U.N. Charter restated them consistent with the more elaborate “machinery”26 being created. The United Nations thus has the same mission as the League of Nations. Yet the very name “United Nations” creates a difficulty the League did not have. The League’s name implies an alliance of States. The United Nations’s name implies something else, akin to a federation or a state. As a result, the French usage—U.N.O. or United Nations Organization—is clearer. Precision is necessary in referring the United Nations so that everyone understands which United Nations is at issue. The United Nations contains a multiplicity of fora in which representatives of independent States meet, talk, and negotiate resolutions and agreements.27 Of the U.N. Principal Organs, the most important in terms of international peace and security is the Security Council; the Security Council also is among the U.N. Charter’s most significant innovations and departures from prior attempts to organize international relations. It represents the clearest attempt by the creators of the United Nations to apply lessons from the failure of the League of Nations. The Security Council is unique in the United Nations because it has the characteristics and authority of an executive. The League of Nations had no such body. The Security Council, alone within the U.N. system, has the ability to dictate to Member States by operation of the Charter provision codifying Member State agreement to “accept and carry out the decisions of the Security Council in accordance with the present Charter.”28 Now constituted at 15, including the five Permanent Members of the United Nations,29 the size and function of the Security Council represented a marked departure from the League of Nations structure, which did not articulate different functions for the League Council and Assembly. The Charter created a class of Permanent Members with a veto on any non-procedural resolution.30 The two most powerful States to emerge from World War II— 25

26 27

28 29 30

For example, fulfillment of treaty obligations, reduction in armaments, concern about private manufacture of weapons, and belief that improving the social and economic wellbeing of all peoples reduced the risk of war. See League of Nations Covenant arts. 8, 22; cf. U.N. Charter pmbl. U.N. Charter pmbl., ¶ 8. U.N. institutions are open to non-State influence, either directly (non-governmental organizations may have access to the United Nations if approved by the Economic and Social Council) or through democratic processes and influence on individual governments. See Kennedy, supra note 7, at 213-28. U.N. Charter art. 25. The Charter was amended in 1965 to increase the size of the Security Council from 11 to its present 15. See Kennedy, supra note 7, at 36. The U.N. Charter provides a case study in the way law evolves. For example, it provides that the Security Council shall act on non-procedural matters “by an affirmative vote of nine members including the concurring votes of the

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the Soviet Union and the United States—demanded this measure as the price for participating in the new institution. The price was acceptable in order to create an organization that included as members the world’s most powerful States. The failure of the United States to join the League always has counted among the principal reasons for its failure to prevent World War II31 and was decisive in the U.N. founders’ willingness to accommodate American and Soviet interests.32 In contrast, apart from determining the budget of the U.N. Organization,33 determining the apportionment of financial responsibility for the United Nations among Member States,34 and exercising, on behalf of the United Nations, authority with respect to non-strategic trusteeships,35 the General Assembly, in which all Members States are represented, has as its principal functions to discuss and recommend with respect to any and all subjects within the scope of the U.N. Charter,36 meaning, in effect, anything arguably international. The Security Council thus has far wider authority with respect to a narrower field: U.N. “Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”37 The Security Council determines what that responsibility is and what it entails.38 At the same time, this power to determine its own jurisdiction is not unlimited, at least in theory. For example, the U.N. Charter makes clear that the Security Council is a political, not a judicial body. Therefore, when the Security Council has decided where a boundary should lie, a decision that is essentially judicial in that it delimits legal rights, it has done so with camouflaged language.39

31 32 33 34 35 36 37

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permanent members.” U.N. Charter art. 27(3). “Concurring votes” has come to mean abstentions. See Bruno Simma, Stefan Brunner & Hans-Peter Kaul, Article 27, in 1 The Charter of the United Nations 476, 493-501 (Bruno Simma ed., 2d ed. 2002). See supra note 21. See, e.g., Kennedy, supra note 7, at 36. U.N. Charter art. 17(1). Id. art. 17(2). Id. art. 85(1). Id. art. 10. Id. art. 24(1) (emphasis added). The italicized language provided a basis for the General Assembly’s actions with respect to Korea under the Uniting for Peace Resolution as well as with respect to the U.N. Emergency Force in the Middle East (UNEF), the action in the Congo in 1960, and action with respect to the Arab-Israeli conflict since 1967 whenever a Permanent Member exercises its veto. See Dominik Zaum, The Security Council, the General Assembly, and War: The Uniting for Peace Resolution, in The United Nations Security Council and War 154-74 (Vaughan Lowe et al. eds., 2008). See Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. 151, 168 (July 20) (no judicial review). By Security Council Resolution 773, U.N. Doc. S/RES/773 (Aug. 26, 1992), the Council guaranteed an undemarcated international border, thus determining by implication what that border is. Determining borders involves allocation of rights, which more usually is a judicial, not a political, function and thus arguably beyond the powers of the Security

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The Security Council disposes of broad powers in discharging its “primary responsibility.” These include the power to take decisions the international community must carry out.40 The Security Council also “may establish such subsidiary organs as it deems necessary for the performance of its functions.”41 Since the end of the Cold War, the Security Council has exercised this power in ways never before seen.42 It has determined the inter-state boundary between Kuwait and Iraq, established international criminal tribunals for the former Yugoslavia and Rwanda, and conducted fact-finding trips to hot spots. Security Council peace-keeping operations have become increasingly sophisticated in their composition and undertakings, coming to resemble in a number of cases exercises in multilateral governance—multilateral trusteeships (East Timor, Kosovo, Liberia). Today, they rarely resemble the old Blue Helmeted line separating Cypriots.43 Among the most significant of Security Council innovations has been the blessing of multinational forces formed by volunteer, willing States. Once so blessed, those forces acquire international political legitimacy they may have appeared to lack in the eyes of non-participating States. Among the examples are operations in Cote d’Ivoire and Congo, Haiti, Kosovo, and, most controversially of course, Iraq. In addition, the Security Council has authorized committees of the whole Council to act on its behalf, notably in the area of sanctions and terrorism. It has created new bureaucracies within the U.N. Secretariat to deal with inspection of arms control regimes in Iraq and counter-terrorism. And it has found new, subtle ways to exercise power.44 For the most part, since the Cold War, the Security Council has acted unanimously. This fact means the continued relevance of the balance of power because the voting procedure, which gave the Permanent Members “the right to jam the movement of the scales” of the balance of power at will, ensur-

40 41 42 43 44

Council notwithstanding the broad grant of authority to the Security Council, in Article 39 of the U.N. Charter, to determine what is necessary to establish or maintain international peace. U.N. Charter art. 25. Id. art. 29. Eric Rosand, The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?, 28 Fordham Int’l L.J. 542 (2005). The Editors, Introduction to The United Nations Security Council and War, supra note 37, at 1, 22. For example, the reports by the ad hoc international criminal tribunals for the Former Yugoslavia and Rwanda to the Security Council proved important means of ensuring that those tribunals behaved responsibly. While Security Council members grumbled in private about the management and cost of the tribunals, they never took public action to discipline them. The fact that the prosecutors and chief judges come before the Security Council has proved sufficient incentive for them to manage competently. The Security Council moreover has prompted organizations like the European Union, the World Bank, and the International Monetary Fund to put counter-terrorism on their agendas or to enhance their efforts in counter-terrorism by asking them to report to the CounterTerrorism Committee established pursuant to Security Council Resolution 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001), what they were doing to help fight terrorism.

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ing a community of power or anarchy,45 is used only rarely—usually by the United States in connection with the Arab-Israeli conflict. The Security Council norm today is consensus building. At the same time, the Security Council remains a forum, where representatives of governments meet, discuss, and negotiate. It does not have the power to appoint its own staff. The U.N. Charter restricts the Security Council’s actions to calling for the peaceful settlement of disputes and making recommendations to parties in conflict with respect to peaceful accommodation; authorizing States to take certain actions, such as using armed force; directing States to act or refrain from action; and receiving reports, including the results of fact-finding missions undertaken at the Security Council’s behest. These powers require super-majority and Permanent Member acquiescence to be exercised. When the Security Council acts or fails to act, more often than not it is because Council Member States have determined on the course to follow. How the United Nations implements these decisions is left to the Secretariat, which thus has substantial ability to shape the course chosen.46 Chapter VII of the U.N. Charter outlines the Security Council’s powers to do more than make recommendations in addressing threats to the peace, breaches of the peace, and aggression. Indeed, the title of the Chapter—“Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”47—states the point; the first lines of the Chapter implement it by an obligation on the Council to make determinations of such threats, breaches, or acts: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 [not involving the use of force] and 42 [involving the use of force], to maintain or restore international peace and security.48

This language represents the U.N. Charter’s strongest incursion into traditional concepts of sovereignty.49 It also has informed the structure of most Security Council resolutions consciously or explicitly adopted under Chapter VII since 1989.50 45 46 47 48 49 50

Wight, supra note 10, at 174. See generally Wesley K. Clark, Waging Modern War (2001). U.N. Charter ch. VII. Id. art. 39 (emphasis added). U.N. Charter art. 2(7); Claude, supra note 4, at 70. The British insist that any resolution containing a binding decision contain three elements: the preamble must determine that a threat to the peace exists or breach of the peace or act of aggression has occurred and state that the Council is “acting under Chapter VII of the U.N. Charter,” and relevant operative paragraphs must contain the word “decides” in order to create a binding “decision.” For most of the Cold War history of the Security Council, resolutions did not follow such a rigid formula. There therefore has been more scope for argument as to what has constituted a Security Council “decision.” For example, Security Council Resolution 242, U.N. Doc. S/RES/242 (Nov. 22, 1967), which set forth a framework for Arab-Israeli peace that still is relevant, does not specify

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More profoundly important, however, the structure recognizes that Great Power unity is required for action. The Great Powers thus decide what is and what is not a suitable subject for a vote.51 The Elected Ten members of the Security Council are unable to substitute their views for the Permanent Five, nor are they able to force them to adopt a united position when they are unable to do so, as the diplomacy over Iraq in 2002 and 2003 demonstrated. Where the Great Powers are divided about authorizing action and yet action occurs, as was the case with regard to Iraq in 2003, both the actor and the Security Council suffer in terms of reputation and ability to act constructively. The damage need not be permanent. Despite global criticism of the U.S.led invasion of Iraq in 2003, including within the U.N. Secretariat, the United States was able to persuade the United Nations to engage in a multi-faceted operation in Iraq, which it maintained even after the bombing of U.N. headquarters in Baghdad and the killing of the Secretary-General’s representative, Sergio Vieiro de Mello. The handling of Iraq in 2003 and subsequently, however, undermined the U.S. position of unquestioned international leadership that was a clear consequence of the end of the Cold War and the demise of the Soviet Union. The election of Barak Obama has not reestablished it. II. Darfur: A Personal Perspective The case of Darfur in 2004-05 puts the role of all entities—States, non-governmental interest groups, the Secretariat, and U.N. Security Council—into high relief. It also provides an example of the tension among humanitarian impulses, national interests, and the rule against intervention “in matters which are essentially within the domestic jurisdiction of any state.”52 The humanitarian crisis in Darfur, with more than one million lives at risk, cried out for effective, rapid action. That was not to come. Rather, the handling of the episode shows how States find more reasons for inaction than action when their vital interests are not at stake. In such instances, they are more likely to work a problem to some kind of resolution for however long it may take, even at great human cost, than to seek quick solutions.53 In addition, they are likely to let additional agenda items attach themselves to the principal subject.

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under what Chapter of the U.N. Charter the Security Council acted. Nor does Security Council Resolution 338, U.N. Doc. S/RES/338 (Oct. 22, 1973), which contains the important word “decides” but no preambular paragraphs, specify the precise source of Charter authority. Claude, supra note 4, at 156. U.N. Charter art. 2(7). The Security Council’s approach to Western Sahara is an example. The Council has rejected suggestions by a Secretary-General Special Representatives to threaten to terminate a peacekeeping operation as a device to force antagonists to reach agreement. Rather, the Council has preferred to maintain the operation, despite its expense, rather than risk a resumption of armed conflict in case the ploy suggested by the Special Representative failed.

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Officials in the Bush Administration, whether or not directed by the President or the Secretary of State, came into office determined not to be even indirectly responsible for a repetition of U.S. policy during the Rwanda genocide of 1994.54 Accordingly, U.S. Armed Forces in Europe undertook exploratory missions in Central Africa in the event another outbreak of genocide called for quick military reaction to quell violence. U.S. diplomats kept a diplomatic spotlight on African trouble-spots, such as Burundi, Liberia, Democratic Republic of Congo, Zimbabwe, and others so as not to give those inclined to violence much room to maneuver. In addition, from the beginning of his Administration, President Bush had taken a personal interest in the situation in Sudan, perhaps principally because he was moved by the plight of Christians. He therefore took on a role in negotiations between warring groups by appointing his own special envoy, former Senator John C. Danforth, to help push the parties to a peace agreement. Civil war had ravaged Sudan for more than twenty years when the U.N. Security Council took up the situation in 2004. U.N. estimates put the dead at more than 2 million and the displaced at more than 4 million.55 In the western province of Darfur, a region the size of France, the Government of Sudan and its Janjaweed agents displaced hundreds of thousands of sedentary peoples of different tribes and religions in order to reward supporters and weaken the rebellion. Victims were driven from their homes, attacked and raped. Their possessions were pillaged. Given the scale of the actions, the seemingly targeted killing and pillage, and the ethnic/tribal character of the victims, experts and commentators leveled charges of ethnic cleansing and genocide against the Government of Sudan. Two presentations to the U.N. Security Council in 2004 constituted points in the chronology of the Security Council’s consideration of Darfur, the development of the U.S. position, and ultimately the Security Council’s willingness to establish a peace support mission in Sudan. On May 7, 2004, James T. Morris, Executive Director of the World Food Program, gave a report to the U.N. Security Council in informal consultations on a mission to Darfur and refugee camps in Chad at the invitation of

54

55

See supra note 22. The U.S. motive for not acting to stop the Rwanda genocide was fear that it would have to participate, which, after fiascos in Haiti and Somalia, the Administration was loathe to do. The concern of Bush Administration officials reflected personal desires not to be complicit in massive killings rather than a conclusion that the United States had a vital national interest, as contrasted with an important interest, involved in African massacres. Conceivably, a President might determine that the national interest required military action to put an end to widespread killings, but the likely cost in the lives of U.S. Armed Forces would weigh on the decision. The first President Bush had made such a decision in regard to Somalia in 1992. The operation was initiated with the consent of Somali parties. Marines waded ashore in December 2002 under television klieg lights. Int’l Comm’n of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General 19 (Jan. 25, 2005), www.un.org/news/dh/ sudan/com_inq_darfur.pdf [hereinafter Report].

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President Al Bashir of Sudan.56 Morris said conditions were worse than any he had ever seen or imagined. One million people had been displaced, victims of meanspirited and unimaginable violence. One hundred thousand people were in war-torn regions, and 95,000 were refugees in Chad. Of the million internally displaced, half were in camps and half were roaming the countryside, their property looted and themselves terrified and at risk of attack. The weather, which Morris described as the worst he had ever experienced, with temperatures in excess of 120°F, made the plight of the displaced worse. Crop losses were enormous, and a second consecutive year of failed harvests seemed likely. The public health situation was appalling, as the displaced lacked adequate food, water (most were on 5-6 liters per day instead of the 20 liters considered normal), or shelter, randomly or not so randomly attacked by Janjaweed marauders equipped with machine guns mounted on fast-moving vehicles or animals. Without humanitarian aid, the victims had no chance of survival. Refugee camps in Chad were stretched beyond capacity. He registered a plea for vastly increased international humanitarian assistance and engagement with the Government of Sudan, whose cooperation he thought was essential to put an end to the humanitarian crisis. The Acting High Commissioner for Human Rights, Bertrand Ramcharan, followed Morris’s presentation and reported on his fact-finding mission.57 He described a situation of lawless war and war of terror, involving commission of war crimes on a massive scale. He called on the Security Council and international community to act, taking seriously the duty to protect.58 He said there was no real distinction between the Sudanese military and the Janjaweed militia, and that the two acted in concert and with coordination. Hospitals were cover for the use of force, and execution of tribal leaders was common. His fact-finding report recommended that the Government of Sudan immediately sever its connection with the Janjaweed and that it grant humanitarian organizations unimpeded access to the victims of violence and the displaced. He called for an international commission of inquiry. The Secretary-General supported the Acting High Commissioner; the Pakistan Ambassador reported that Sudan had assured him that the violence had ended and the situation in Darfur was stabilizing. The German representative forcefully demurred: if the international community failed to act, a humanitarian catastrophe would occur. The Secretary-General supported Security Council action with respect to Darfur. A month later, he recommended establishment of a short-term, advance mission in 56

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James Morris, Executive Director of the World Food Programme, Briefing on the HighLevel Mission to Sudan (May 7, 2004), http://documents.wfp.org/stellent/groups/public/documents/newsroom/wfp076507.pdf. The following owes much to my personal notes of the presentation. UN Finds Sudan Has Carried Out Massive Human Rights Violations in Darfur, UN News Centre, May 7, 2004, http://www.un.org/apps/news/storyAr. asp?NewsID=10664&Cr=sudan&Cr1. See Int’l Comm’n on Intervention and State Sovereignty, The Responsibility to Protect (2001), available at http://www.iciss.ca/pdf/Commission-Report.pdf.

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Sudan (UNAMIS), which the Security Council endorsed for three months.59 Its mandate would be extended until a peacekeeping operation was established in March 2005. At this moment, Danforth became the U.S. Permanent Representative at the United Nations.60 Danforth would stay in New York seven months. He arrived already knowing the Sudan portfolio intimately from his role as presidential envoy. He undertook to lead the Security Council to take the matter up on a regular basis. He accomplished this goal, but not without having to learn that some U.N. Security Council resolutions had to speak in tongues in order to obtain the votes required for passage. Thus, the September 2004 resolution on Syria’s involvement in Lebanon could not mention Syria by name,61 and the July 2004 resolution threatening sanctions against perpetrators of war crimes in Sudan could not mention “sanctions” by name either.62 And he had to connect the Darfur situation to the security condition of Sudan and the region if it were to be mentioned in a Security Council document at all.63 This aspect of Security Council reality reflected sensitivity among Council members to questions of Council legitimacy in the eyes of the rest of the United Nations. The General Assembly and other bodies are quick to criticize the Security Council for overstepping its role. Thus, the Secretary-General in September 2003 made the standing of the Security Council in world opinion a central message of his speech to launch the 2003 U.N. General Assembly General Debate.64 Sudan’s actions in Darfur resulted in accusations of ethnic cleansing and genocide. On September 9, 2004, the United States made the same accusation. Secretary of State Colin L. Powell informed the Senate Foreign Relations Committee that: “We concluded—I concluded—that genocide has been committed in Darfur and that the government of Sudan and the Janjaweed bear responsibility—and genocide may still be occurring.”65 He called for an immediate international inquiry. The United States, already engaged in armed conflicts in Afghanistan and Iraq and stretched in terms of military capabilities, was not prepared to use armed force, even in concert with 59 60 61 62

63

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See S.C. Res. 1547, U.N. Doc. S/RES/1547 (June 11, 2004). Danforth replaced John D. Negroponte, who went to Iraq as first U.S. Ambassador since the removal of Saddam Hussein in 2003. See S.C. Res. 1559, U.N. Doc. S/RES/1559 (Sept. 2, 2004). See S.C. Res. 1556, U.N. Doc. S/RES/1556 (July 30, 2004). The resolution expressed the Security Council’s “intention to consider further actions, including measures as provided for in Article 41 of the Charter of the United Nations on the Government of Sudan, in the event of non-compliance.” Id. ¶ 6. Article 41 of the U.N. Charter authorizes the Security Council to give effect to its decisions with “measures not involving the use of armed force,” including, of course, sanctions. U.N. Charter art. 41. The effort involved strenuous negotiations with States with competing interests. See, e.g., Glenn Kessler & Colum Lynch, U.S. Calls Killings in Sudan Genocide; Khartoum and Arab Militias Are Responsible, Powell Says, Wash. Post, Sept. 10, 2004, at A01. U.N. GAOR, 58th Sess., 7th plen. mtg. at 3, U.N. Doc. A/58/PV.7 (Sept. 23, 2003) (“urgent need for the Council to regain the confidence of States and of world public opinion”). Kessler & Lynch, supra note 63. (quoting Powell).

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other States, to protect victims in Darfur. As a result, the diplomatic spotlight was the principal U.S. instrument for dealing with Sudan and Darfur. What has been true for the United States also has been true for most U.N. Member States. No State was prepared to act if the United States was on the sidelines. Because the United States did not inquire if others would join in action, no one knew for sure what would happen if the United States proposed a coalition force to protect the Janjaweed victims and humanitarian aid workers in Darfur. In the end, of course, the African Union with non-African support and then the U.N. peace support operation undertook this effort. The reason is simple: most States have commercial interests in Sudan that militate against hostility to the Government in Khartoum.66 Most have been cautious about challenging African and Arab hesitancy to criticize another African or Arab State; and Sudan is both. The burden of action has fallen to international bodies often ill-equipped to take steps that would bring immediate relief to the victims of attack. One legal/political issue concerned whether the Security Council could properly consider the matter—did it threaten international peace and security—or was it more properly a matter exclusively for the General Assembly or Economic and Social Council? This issue lurks behind the words of the relevant Security Council resolutions and, at least in part, explains the lack of explicit reference in those resolutions to Chapter VII as authority as well as the emphasis on encouraging the warring parties to make peace as a precondition for international assistance. The Security Council couched the assistance it could provide in terms of implementing an agreement. Security Council Member States were no more willing to undertake more vigorous action when acting in the Council than they were outside it. No one could ignore that the civil war had occasionally spilled over into neighboring States and not just in the form of population flows. Cross-border raids had occurred. Yet no State wanted to lead a policing coalition or to impose a peacekeeping operation on Sudan. Not only did divergent State interests mean that the Security Council only could be tentative in asserting its own jurisdiction, but also these same interests meant that Member States did not share a compelling urgency to act. Powell’s statement nevertheless prodded the international community into action, despite hostility to the U.S. conclusion that genocide had occurred.67 Bringing an end to impunity for crimes committed during civil strife or under dictatorships was a consistent theme in Secretary-General Kofi Annan’s and others’ speeches on issues of civil strife and transitional justice.68 Annan’s interest in Darfur seemed to follow Powell’s and to reflect a concern that the United States not appear alone as the

66

67 68

See, e.g., Adam Nossiter, Defying Pariah Status, Guinea Boasts of a Deal with a Chinese Company, N.Y. Times, Oct. 14, 2009, at A4 (“China has been determined in its pursuit of minerals in Africa, often without consideration of how countries are governed.”). See Kessler & Lynch, supra note 63. See generally U.N. SCOR, 58th Sess., 4835th mtg., U.N. Doc. S/PV.4835 (Sept. 30, 2003) (Security Council debate on “Justice and the Rule of Law: the United Nations Role”); U.N. SCOR, 58th Sess., 4834th mtg., U.N. Doc. S/PV.4834 (Sept. 29, 2003) (same).

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champion of victims of genocide. The concern was misplaced. The United States was interested only in multilateral diplomacy and support to others’ efforts. Under Danforth’s leadership, in September 2004 the Security Council called for an inquiry into allegations of violations of international humanitarian and human rights law “by all parties,” to determine if “acts of genocide have occurred,” and to identify perpetrators of violations “with a view to ensuring that those responsible are held accountable.”69 The language reflected U.S. antipathy for the International Criminal Court and other Security Council Members unhappiness with the U.S. view that genocide had occurred in Darfur. The Secretary-General duly appointed a commission, which reported in January 2005.70 While the Commission was at work, the Security Council was not idle. Security Council efforts on behalf of peace in Sudan and humanitarian relief in Darfur reached a climax for the period of Danforth’s U.N. Ambassadorship in the fall and early winter of 2004-05.71 In November 2004, as President of the Security Council, Danforth took the Council to Nairobi for a meeting on Sudan. This event, which showed the ability of the Security Council to spotlight crises, briefly highlighted worldwide concern for the need to bring peace to Sudan. The Security Council could address Darfur only in this context without encountering criticism that it was overstepping its jurisdiction or competence within the U.N. system. To this end, the Security Council obtained the agreement of Sudan and the Sudan People’s Liberation Movement/Army to a declaration reaffirming their agreement to previously agreed documents as the core of a Comprehensive Peace Agreement and invited the Council to endorse the move in a resolution. Security Council Members witnessed this declaration and attached it to the resolution adopted in Nairobi.72 The Nairobi resolution thus provided support for peacemaking to date and encouragement for speedy conclusion of a Comprehensive Peace Agreement, after which the interna69 70

71 72

S.C. Res. 1564, ¶ 12, U.N. Doc. S/RES/1564 (Sept. 18, 2004). See Letter from the Secretary-General to the President of the Security Council, U.N. Doc. S/2004/812 (Oct. 11, 2004) (appointing Antonio Cassese (Italy) (first President of the International Criminal Tribunal for the Former Yugoslavia (ICTY)), Thérèse Striggner Scott (Ghana) (former High Court Judge), Mohamed Fayek (Egypt) (Secretary General of the Arab Organization of Human Rights), Hina Jilani (Pakistan), and Diego Garciá-Sayán (Peru) (former Minister of Foreign Affairs and Minister of Justice) to the Commission of Inquiry). Dumisa Ntsebeza (South Africa) (former commissioner of the South African Truth and Reconciliation Commission) was to be Executive Director (in the event, Mona Rishmawi served in that position). See Report, supra note 55, at 2. The SecretaryGeneral’s terms of reference to the Commission did not track the language of the Security Council Resolution; instead, it called on the Commission to “recommend accountability mechanisms before which those allegedly responsible would be brought to account.” Thus, the Secretary-General, who headed an administration fervent in its support of the International Criminal Court and indifferent to U.S. concerns about that institution, invited the conclusion reached by the Commission to recommend Security Council referral to the International Criminal Court. Danforth himself left office at the end of January 2005. See S.C. Res. 1574, U.N. Doc. S/RES/1574 (Nov. 19, 2004).

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tional community should provide assistance for its implementation. The resolution noted, moreover, “that progress towards resolution of the conflict in Darfur would create conditions conducive for delivery of such assistance.”73 The resolution further put the Council on record in favor of what it called a U.N. “peace support operation,” assisting implementation of a comprehensive peace agreement when it was signed.74 The Nairobi trip had provided impetus to intra-Sudan peacemaking. It also brought about agreement within the Security Council before Thanksgiving 2004 on the need for a substantial U.N. operation to support the anticipated peace agreement. The Council did not incorporate that agreement into a resolution until March 2005. The gap was not filled with efforts to recruit and train the necessary forces. That work would commence when the Security Council adopted the necessary resolution. Rather, the delays reflected determination by a majority of Security Council Members to obtain a referral of Darfur to the International Criminal Court as the price of their votes on the peace support operation. They wanted the referral because they were parties to the Rome Statute of the International Criminal Court and because they appeared to want to assert their independence of the United States by insisting on an action they knew the United States would oppose. In the period 2002-05, few issues at the United Nations aroused such passion as the International Criminal Court. The United States had participated in the negotiation of the International Criminal Court but had failed to win acceptance of its most important negotiating goals, including U.N. Security Council control. As a result, there was little support in the Senate for the Court. When President Clinton authorized signature of the Rome Statute establishing the Court in December 2000, he stated that he would not seek Senate advice and consent to ratification until substantial changes were obtained. He advised his successor to adopt the same posture.75 In 2002, the Bush Administration notified the Secretary-General that it did not intend to become a party to the Rome Statute and therefore its signature on the treaty should not be taken as having legal significance.76 Not content to let the matter lie, in 2002 the United States tried to regain ground lost in the Rome negotiations by using the Security Council, where its leverage was high. The Administration pushed the Security Council to adopt a resolution exempting peacekeeping forces from States that 73 74 75

76

Id. pmbl. Id. ¶ 6. Clinton’s Statement on War Crimes Court, BBC News, Dec. 31, 2000, http://news.bbc. co.uk/2/hi/1095580.stm. President Clinton said that “The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” Id. Acrimonious altercations between diplomats took place at the United Nations in 2002 and subsequently over the International Criminal Court. See 2 Sean D. Murphy, United States Practice in International Law 306-07 (2005) (text of letter to U.N. Secretary-General as depository of Rome Statute and summary of Under Secretary of State Grossman’s explanation of U.S. inability to join).

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were not party to the Rome Statute from International Criminal Court jurisdiction.77 In order to obtain adoption, the United States had to agree to the use of Article 16 of the Rome Statute. Outside the Security Council, supporters of the International Criminal Court seethed with rage at what they perceived as high-handed U.S. behavior, blocking renewal of the Bosnian peacekeeping operation until and unless it obtained adoption of this exemption. In 2004 and 2005, Security Council referral of Darfur to the International Criminal Court became the issue to be resolved before the Security Council Members would authorize a U.N. peacekeeping operation. It was a form of payback. From November 2004 to March 2005, U.N. Security Council Members met informally in various formats. Sometimes the meetings were “informal consultations” at the U.N. headquarters; sometimes they were “informal informals” at missions, which allowed for the exclusion of U.N. staff and an atmosphere conducive to frank talk. Whatever the location, the subject never varied: details of the peacekeeping operation to be authorized and the International Criminal Court as the desired vehicle for trying perpetrators of alleged crimes. A Security Council referral was necessary because Sudan is not a party to the Rome Statute. While other Security Council members such as China, Russia, and Pakistan were not parties to the Rome Statute of the International Criminal Court, only the United States objected to helping enhance the stature of the International Criminal Court through a referral from the Security Council. Parties to the Rome Statute—principally the European and Latin American Security Council Members—insisted that accountability for crimes and peace support were inseparable and that they could not endorse one without the other. And accountability could only be achieved using the International Criminal Court. Their arguments received support from the Secretary-General’s International Commission of Inquiry on Darfur. On January 9, 2005, Sudan’s warring parties signed a Comprehensive Peace Agreement ending their civil war. This event, which an American diplomat described as “an amazing diplomatic achievement,”78 seemed less important to the U.N. Security Council than the conclusion of the work of the International Commission of Inquiry. On January 25, 2005, the International Commission of Inquiry submitted its report. The Commission found that genocide had not and was not occurring because mens rea was lacking.79 The Commission nonetheless found that “heinous” offenses under international law had occurred and that therefore the Security Council should refer the matter to the International Criminal Court.80 These conclusions amounted to a double-barreled repudiation of U.S. positions on genocide in Darfur and the Inter-

77 78

79 80

See S.C. Res. 1422, U.N. Doc. S/RES/1422 (July 12, 2002). Ambassador Richard S. Williamson, Sudan: The Situation in Southern Sudan and the Status of the Comprehensive Peace Agreement, statement before the House of Representatives Committee on Foreign Affairs, African and Global Health Subcommittee, Jul. 29, 2009. Report, supra note 55, at 139-42. Id. at 142.

49 Nicholas Rostow, U.N. Realities

national Criminal Court. Yet a close reading of the report81 reveals far more, both about what the Commission discovered and about international realities reflected in actions at the United Nations, whether by States or by individuals purporting to be acting independently of national government wishes. The 176 single-spaced pages document the basis for others’ accusations of ethnic cleansing and genocide. Sudan and its allies perpetrated horrors on nearly two million people, defined by tribal affiliation and location.82 It documents the connection between the Government of Sudan and its armed forces and the Janjaweed or Arab militias, which were Khartoum’s principal instruments in what Ramcharan described as a war of terror.83 Still, the report is rife with internal contradiction: for example, it exonerates the Government of Sudan of the charge of genocide by noting that internally displaced persons, displaced by the Government, found refuge in camps. The report states that the area was selected by the Government, not that the camps were built and maintained by the Government. Indeed, the Government demonstrated in all respects indifference to the fate of the displaced once they were displaced; until the Security Council focused on Darfur, Sudan had obstructed the delivery of humanitarian assistance, and its agents in Darfur put humanitarian aid workers in grave danger.84 In contrast to a limited analysis of whether the facts in Darfur warranted a finding of genocide,85 the discussion and advocacy for the use of the International Criminal Court is fulsome. The report dismissed other ideas for holding persons accountable for crimes within the Court’s jurisdiction and fueled opposition to alternatives, which U.S. diplomats explored in the three months after the Security Council trip to Nairobi: an African Union court, expanding the jurisdiction of the International Criminal Tribunal for Rwanda, or another mechanism, including a court analogous to the one operating in Sierra Leone. Each of these ideas, however worthy of analysis and perhaps endorsement, failed to win support on the Security Council even though arguably an African Union court would have filled a real need in Africa and would have dispelled the impression that justice was meted out by ex-imperial powers on their former colonies. Deliberations in the Security Council made clear that States were prepared to withhold their votes for a peacekeeping operation in support of the internal Sudanese peace agreement and humanitarian assistance operations in Darfur until there was agreement on a referral to the International Criminal Court. 81

82 83 84

85

Eric Reeves provides penetrating commentaries on the report. See Eric Reeves, Report of the International Commission of Inquiry on Darfur: A Critical Analysis (Part I) (Feb. 2, 2005), http://www.sudanreeves.org/Sections-article489-p1.html; Eric Reeves, Report of the International Commission of Inquiry on Darfur: A Critical Analysis (Part II), (Feb. 6, 2005), http://www.sudanreeves.org/Sections-article488-p1.html. See, e.g., Report, supra note 55, at 3, 17-25, 65. See id. at 27-37; supra text following note 57. See Report, supra note 55, at 131. If the Government of Sudan had been interested in relocation only, it would hardly need to engage in the tactics of killing, rape, and pillage undertaken. See Reeves, supra note 81.

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In practice, this posture meant maximizing pressure on the United States to change its position of adamant hostility and threatened veto. It worked. In March 2005, the Security Council adopted three separate resolutions: establishing a peacekeeping operation of some 10,000 military personnel; establishing a Security Council committee empowered to impose sanctions on individuals who “impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities,” and other acts in violation of Security Council resolutions; and, with the United States abstaining, referring the situation in Darfur to the International Criminal Court.86 The United States explained that it had not abandoned its criticisms of and concerns about the Court; rather, because the United States had determined that genocide had occurred and might still be occurring, it could not veto the majority’s desire to refer the matter to the International Criminal Court. The goal was to help the people of Sudan.87 III. Conclusion The case of Darfur highlights a number of U.N. realities. Even Security Council agreement about issues such as the need to put an end to atrocities and to hold those responsible for them accountable at law translates into action only with enormous effort and luck. This fact reflects the nature of things.88 And the nature of things involves respect for the territorial integrity of States. Respect may be nominal, as in the

86 87

88

See S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005); S.C. Res. 1591, U.N. Doc. S/ RES/1591 (Mar. 29, 2005); S.C. Res. 1590, U.N. Doc. S/RES/1590 (Mar. 24, 2005). Algeria, Brazil, and China also abstained. See U.N. SCOR, 60th Sess., 5158th mtg. at 2-4, U.N. Doc. S/PV.5158 (Mar. 31, 2005). The U.S. statement commented on the stands of some of the Court’s strongest European supporters: “Protection from the jurisdiction of the Court should not be viewed as unusual. Indeed, under article 124, even parties to the Rome Statute can opt out from the Court’s jurisdiction over war crimes for a period of seven full years, and important supporters of the Court have in fact availed themselves of that opportunity to protect their own personnel. If it is appropriate to afford such protection from the jurisdiction of the Court to States that have agreed to the Rome Statute, it cannot be inappropriate to afford protection to those that have never agreed. It is our view that non-party States should be able to opt out of the Court’s jurisdiction, as parties to the Statute can, and the Council should be prepared to take action to that effect as appropriate situations arise in the future.” Id. at 3. Brief summaries of U.S. criticisms of the International Criminal Court can be found, for example, in statements at the U.N. General Assembly’s Sixth (Legal) Committee. See U.N. GAOR, 6th Comm., 58th Sess., 13th mtg. ¶¶ 20-25, U.N. Doc. A/C.6/58/SR.13 (Nov. 5, 2003); U.N. GAOR, 6th Comm., 57th Sess., 14th mtg. ¶¶ 7-13, U.N. Doc. A/C.6/57/SR.14 (Oct. 30, 2002). See Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws 1 (Anne M. Cohler et al. eds. & trans. 1989) (1748) (“Law, taken in the broadest meaning, are the necessary relations deriving from the nature of things.”).

49 Nicholas Rostow, U.N. Realities

case where the strong take on the weak with no countervailing balancing power,89 but the principles of sovereign equality90 and non-interference91 have been central to the U.N. Charter and the U.N. Organization in a global community of diverse regimes. In the case of Darfur, the international community united around the use of the International Criminal Court and the vindication of the Rome Statute in the face of U.S. opposition. No consideration was given to the impact on politics and policies in Sudan of introducing a criminal law process involving the State’s leadership. The referral to the International Criminal Court came during the delicate endgame of a long-running civil war in which nobody’s hands were completely clean. Sudan’s leadership had just executed a peace agreement; implementation would require international assistance and support. The prospect of trial and incarceration may not create an incentive for Sudan’s leaders to cooperate with the Court or to facilitate foreign activities, even purely humanitarian activities, in their country. And, of course, an International Criminal Court indictment carries a stigma making it difficult politically to deal with the defendant who has been charged with the most severe war crimes and crimes against humanity. That can have negative consequences for peacemakers and those attempting to deliver humanitarian assistance in areas controlled by the defendants. Apparently, no thought was given to the impact of International Criminal Court proceedings on the Security Council. The conclusion suggests itself that a real State interest was to appear to act but not to act effectively. That the International Criminal Court could do nothing to bring assistance to the victims of Sudan’s policies or even bring those policies to a halt was ignored. Nor could the Court accelerate the process by which peacekeeping operations are formed and deployed. In short, referral to the International Criminal Court was irrelevant to the resolution of the humanitarian crisis, which continues to this day.92 Episodes such as Darfur illuminate the character of the international system and the durability of the system of independent States on which the U.N. system is superimposed. They also demonstrate that being able to prevent or stop atrocities in a particular situation and actually doing so are different matters altogether. The need in Darfur is, not simply the application of law, but also the operation of a balance of power that can hold the génocidaires in check. In this regard, the balance of power can be a method of enforcing the law 89 90 91

92

Cf. Thucydides, The Peloponnesian War, Bk. 5, Ch. 17 (Richard Crawley trans. 1910) (“the strong do what they can and the weak suffer what they must.”) U.N. Charter art. 2(1). Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), annex, pmbl. ¶ 8, U.N. Doc. A/8082 (Oct. 24, 1970). Eric Reeves, Comment, Whitewashing Darfur, Guardian.co.uk, June 14, 2009, http:// www.guardian.co.uk/commentisfree/cifamerica/2009/jun/11/darfur-sudan-genocidemamdani; see also Jennifer M. Welsh, The Security Council and Humanitarian Intervention, in The United Nations Security Council and War, supra note 37, at 535, 55862; Ginger Thompson, Obama Drops Plant to Isolate Sudan Leaders, N.Y. Times, Oct. 17, 2009, at A1 (reporting that Secretary of State Clinton will announce a new policy of engagement with Sudan’s leadership in order to end human rights abuses).

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when direct police action is not possible. The United Nations, the African Union, and non-governmental organizations providing humanitarian assistance have constituted the weights in the scales trying to balance the actions of Khartoum. It remains to be seen if the International Criminal Court will add to, or detract from, those counter-weights. Since the end of the Cold War, the international community, operating through the U.N. Security Council, from time to time depending on the case, has provided a balance to abusive exercises of power when individual States have had limited interest in forcibly challenging the abusers directly. The United Nations has spread the cost and the risk. In this respect, it has shown itself to be the heir of the Concert of Europe. The Darfur episode would not have surprised the founders of the United Nations or the League of Nations. Both institutions aimed in the first instance to reduce the risk of general war among the Great Powers. Such a war, not massacres or even genocides, preoccupied the drafters of the Charter and the Covenant. The fate of Darfur shows that such a priority still governs the international machinery. Nevertheless, the United Nations has taken on responsibilities in war torn countries where the risk of regional conflict is real. The end of Cold War divisions made this development possible. It has been manifested in the sizable number of peacekeeping operations worldwide93 and the Council’s debates about and actions concerning a vast number of international crises. Divisions among States remain; but for the most part they arise ad hoc depending on the particular crisis or problem to be addressed rather than resulting from ideological rigidities. That is a form of progress.

93

Lists of U.N. peacekeeping operations and operations not classified as peacekeeping, 1945-2006, are contained in the appendices to The United Nations Security Council and War, supra note 37.

Part VII Making and Applying Law by International Tribunals

Chapter 50 The Principle of Compétence de la Compétence in International Adjudication and Its Role in an Era of Multiplication of Courts and Tribunals Laurence Boisson de Chazournes*

In his course at the Hague Academy of International Law dedicated to The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication, Michael Reisman painted a panoramic view of what he then called the “inherent limitations on competence.”1 In a characteristic turn of phrase, he states the following: When the International Court [of Justice] contemplates the performance of pre- or postarbitral supervisory roles, it must still consider whether the tasks presented to it are within its competence. The Court, like any arbitration tribunal, is an entity of restricted powers. This means that certain actions that, in a particular case, might be useful to the parties, authorized by the parties, useful to a particular arbitration or useful to the system of arbitration, may nonetheless, lie beyond its own normative boundaries.2

This vision of the competence of international courts and tribunals implicitly raises a fundamental principle of law governing the activity of international courts and tribunals, that is, the principle of compétence de la compétence. This principle to which Michael Reisman dedicated attention has not attracted much consideration in recent times, despite its importance at a time of ever greater proliferation of courts and tribunals.

*

1

2

The author is greatly indebted to Dr. Makane Moïse Mbengue, Lecturer in the Geneva Master in International Dispute Settlement (MIDS) of the University of Geneva Law School and the Graduate Institute of International Studies and Development, for the exchanges and comments during the preparation of this contribution. The author would also like to thank M. Julian Wyatt, research and teaching assistant at the University of Geneva Law School, for editorial assistance. W. Michael Reisman, The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication, 258 Recueil des Cours 9, 57 (1996). Id. (emphasis added).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 1027-1063.

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The present contribution will first try to sketch the contours of the principle of compétence de la compétence. It will then proceed to an assessment of its effects before contextualizing the said principle as an “ordering principle” in the context of the proliferation of international courts and tribunals. I. The Contours of the Principle of Compétence de la Compétence Outlining the principle of compétence de la compétence requires grasping its meaning, its applicability, as well as its scope. A. Grasping Its Meaning The consensual nature (or basis) of international adjudication3 has often overshadowed the autonomy of the international judicial function. However, even if consent of the parties lays at the basis of the jurisdiction of international courts and tribunals, it is in fact consent “as found and determined by”4 international courts and tribunals that really matters. This implies a fundamental prerequisite of the autonomy of the international judicial function: la compétence de la compétence. The principle of compétence de la compétence refers to the power of an international court or tribunal to define the limits of its own jurisdiction. Compétence de la compétence is the process through which an international court or tribunal “regards its jurisdiction as established”5 or not established. It relates to the competence of an 3

See, e.g., South West Africa (Eth. v. S. Afr.), Preliminary Objections, 1962 I.C.J. 319, 467 (Dec. 21) (joint dissenting opinion of Judges Spender & Fitzmaurice) (“The principle of consent [is an] essential condition for founding international jurisdiction.”); see also Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, 2006 I.C.J. 6, 18 (Feb. 3); Monetary Gold Removed from Rome in 1943 (Italy v. Fr.), Preliminary Question, 1954 I.C.J. 19, 32 (June 15). As regards international arbitration, see the report of Baron Descamps to the First Hague Peace Conference on Convention No. I of 1899 on the Pacific Settlement of International disputes. The report reads as follows: A voluntary system of jurisprudence in origin as well as in jurisdiction, it agrees with the just demands of sovereignty, of which it is only an enlightened exercise. For, if there is no power superior to the States which can force a judge upon them, there is nothing to oppose their selection of an arbitrator by common agreement to settle their disputes, thus preferring a less imperfect means of securing justice to a method more problematical and more burdensome.

4

5

2 Shabtai Rosenne, The Law and Practice of the International Court 19202005, at 550 (4th ed. 2006) (quoting the report of Baron Descamps). Ibrahim F. I. Shihata, The Power of the International Court to Determine Its Own Jurisdiction: Compétence de la compétence 5 (1965) (emphasis in original). Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 I.C.J. 53, 62 (Nov. 12).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

international court or tribunal to “act at all”6 and to “do justice.”7 It also relates to the “power to decide whether it may proceed with the judicial settlement of the particular case.”8 As ingeniously explained by Shihata, compétence de la compétence deals with a phase of the judicial action which comes even prior to that preliminary phase (substantive jurisdiction); that is, the power, or the jurisdiction, to decide whether that substantive jurisdiction exists. This power is obviously incidental and pre-preliminary. It comes next only to the seisin of the Court and is exercised, necessarily, even in the absence of any substantive jurisdiction.9

The principle of compétence de la compétence is intrinsically linked to the international adjudication phenomenon. It arose in the field of international arbitration in relation to the first commissions established under Articles VI and VII of the treaty between the United States and Great Britain signed on November 19, 1794 (Jay Treaty). The first case in which the principle was proclaimed is the Betsey Case. There, the two American commissioners filed separate opinions defending the right of the commissioners to determine their own jurisdiction.10 It was held that the commissioners “must necessarily decide upon cases being within or without their competency.”11 The principle of compétence de la compétence was reaffirmed in the Sally Case, but through an arrangement between the commissioners and not through a judiciary pronouncement.12 Some other cases like the Isaac Harrington Case before the United States and Costa Rican Commission emphasized the importance of this principle.13 However, as pointed out by Shihata, “[u]p to that time there was not one judicial decision that enunciated clearly the principle that arbitral tribunals have the power to determine their jurisdiction.”14 In this context, the Alabama Arbitration constitutes a turning point. The arbitrators made a declaration according to which the indirect claims do not constitute upon the principles of international law applicable to such cases good foundation for an award of compensation or computation of damages between nations, and 6 7 8 9 10 11 12 13 14

Northern Cameroons (Cameroon v. U.K.), 1963 I.C.J. 15, 102 (Dec. 2) (separate opinion of Judge Fitzmaurice). Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 1954 I.C.J. 47, 57 (July 13). Chittharanjan F. Amerasinghe, Jurisdiction of Specific International Tribunals 22 (2009). Shihata, supra note 4, at 7-8 (emphasis added). 3 John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 2278-91, 2291-303 (1898). John Bassett Moore, The Principles of American Diplomacy 312 (1918) (quoting Lord Chancellor Loughborough). 3 Moore, supra note, at 2305-06, 2306-12. 2 id. at 1564-65. Shihata, supra note 4, at 16.

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should upon such principles be wholly excluded from the consideration of the tribunal in making its award, even if there were no disagreement between the two governments as to the competency of the tribunal to decide thereon.15

1030

For this reason, the Alabama Arbitration is considered by many as having paved the way for the power of arbitrators to determine their own jurisdiction.16 Here again, Shihata has been rather critical of the importance given to the Alabama Arbitration as a precedent in this area, stressing the need for more moderation with regard to its value: The Alabama Arbitration did not, therefore, create a clear-cut rule as to the compétence de la compétence. It emphasized, however, an important fact—the compétence de la compétence is a useful device which insures that adjudication will continue even when the parties disagree in the course of the proceedings. … The assent of the parties was needed to allow the tribunal the power to determine the issue and was necessary to give its declaration a binding character.17

The principle of compétence de la compétence was then codified in multilateral treaties, and in particular in Article 48 of the Hague Convention No. I of 1899 on the Pacific Settlement of International Disputes and Article 73 the Hague Convention No. II of 1907 on the Pacific Settlement of International Disputes.18 Compétence de la compétence also benefited from a crystallization process in many arbitral proceedings subsequent to the Alabama case. Noteworthy are the Flutie Cases in which it was stated: This Commission has no jurisdiction over any claims other than those owned by citizens of the United States of America. The American citizenship of a claimant must be satisfactorily established as primary requisite to the examination and decision of his claim. Hence the

15 16 17 18

1 Moore, supra note 10, at 646 (emphasis added). See, e.g., Georges Berlia, Jurisprudence des tribunaux internationaux en ce qui concerne leur compétence, 88 Recueil des Cours 105, 109 (1955). Shihata, supra note 4, at 18-19. On these treaties, see The Hague Peace Conferences of 1899 and 1907 and International Arbitration (Shabtai Rosenne ed., 2001) [hereinafter Peace Conferences]. Before the Hague Convention of 1899, the Institut de droit international adopted a Draft of rules of procedure of arbitral tribunals in 1875. Article 14 of the Draft reads as follows: “If the doubt concerning the jurisdiction depends on the interpretation of a clause in the compromis, the parties are presumed to have given the arbitrators power to settle the question, unless otherwise stipulated.” Projet de règlement pour la procédure arbitrale internationale, 1 Annuaire de l’Institut de droit international 126, 130 (1877) (translated by the author).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

Commission, as the sole judge of its jurisdiction, must in each case determine for itself the question of such citizenship upon the evidence submitted in that behalf.19

The award of the arbitrator in the Walfish Bay Boundary case is also noteworthy: [I]t is a constant doctrine of public international law that the arbitrator has powers to settle questions as to his own competence by interpreting the range of the agreement, submitting to his decision the question in dispute.20

The award marks the fact that following the uncertainties which surrounded the principle of compétence de la compétence since its early conceptualization at the end of the eighteenth century and during the major part of the nineteenth century, practice in the course of the twentieth century acknowledged the said principle as a “constant doctrine of public international law.”21 There is strong recognition of its importance in the Rio Grande Irrigation and Land Company case of 1923.22 Perceived as a “constant doctrine of public international law,”23 compétence de la compétence was progressively understood as an inherent power of each international tribunal. The principle of compétence de la compétence was thus conferred a specific and explicit status in international arbitration. As such, international arbitration sowed the seeds for a development and recognition of the principle in the entire system of international adjudication. The attitude of the Permanent Court of International Justice (PCIJ), one of the first ever permanent international jurisdictions, towards compétence de la compétence is a good illustration of that point. It is noteworthy that the PCIJ Statute expressly provided that “[i]n the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”24 Dealing with the competence of a mixed commission in the Interpretation of the Greco-Turkish Agreement of December 1st, 1926 case, the PCIJ did not hesitate to vest 19 20 21 22

23 24

Flutie Cases (U.S.-Venez.), 9 R. Int’l Arb. Awards 148, 151 (Mixed Cl. Comm’n 1903) (emphasis added). Walfish Bay Boundary (Germany v. Gr. Brit.), 11 R. Int’l Arb. Awards 263, 307 (1911) (emphasis added). Id. Rio Grande Irrigation & Land Co., Ltd. (Gr. Brit. v. U.S.), 6 R. Int’l Arb. Awards 131, 135-36 (1923) (“Whatever be the proper construction of the instruments controlling the Tribunal or of the rules of procedure, there is inherent in this and every legal Tribunal a power, and indeed a duty, to entertain, and, in proper cases, to raise for themselves, preliminary points going to their jurisdiction to entertain the claim. Such a power is inseparable from and indispensable to the proper conduct of business. This principle has been laid down and approved as applicable to international arbitral tribunals.” (internal citation omitted)). Id. Statute of the Permanent Court of International Justice art. 36, Dec.16, 1920, 6 L.N.T.S. 379, 390.

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the said commission with the power to determine its own jurisdiction. In the words of the PCIJ: It should, in particular, be noted that the article contains no express provision designed to settle the question by whom or when the questions with which the instrument deals may be referred to the President of the Greco-Turkish Mixed Arbitral Tribunal. But from the very silence of the article on this point, it is possible and natural to deduce that the power to refer a matter to the arbitrator rests with the Mixed Commission when that body finds itself confronted with questions of the nature indicated. … [T]hat being so, it is clear—having regard amongst other things to the principle that, as a general rule, any body possessing jurisdictional powers has the right in the first place itself to determine the extent of its jurisdiction—that questions affecting the extent of the jurisdiction of the Mixed Commission must be settled by the Commission itself without action by any other body being necessary. … [T]he right of reference can, however, only belong to the Mixed Commission; for it is a matter of determining the extent of its own competence.25

Albeit prompt in affirming expressis verbis the principle of compétence de la compétence with respect to other international jurisdictions, the PCIJ was less bold with respect to its own jurisdiction.26 As an illustration, one can mention the Peter Pázmány University case in which the PCIJ examined its compétence de la compétence without affirming with a clear wording that it was engaging de jure in such a process. The relevant passage of the judgment of the PCIJ reads as follows: The Court will examine in the first place whether it has jurisdiction to entertain the present suit.27 … The answer to the question under consideration depends upon the interpretation of Article X of Agreement II of Paris in relation to the Statute of the Court. … There can be no doubt that this Article confers jurisdiction upon the Court.28 … Article X, paragraph I, of the Agreement No. II of Paris confers on the Court jurisdiction as a court of appeal. In the 25 26

Interpretation of the Greco-Turkish Agreement of Dec. 1st, 1926 (Final Protocol, Article IV), Advisory Opinion, 1928 P.C.I.J. (ser. B) No. 16, at 20-21 (Aug. 28) (emphasis added). For example, in Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Pol.), 1928 P.C.I.J. (ser. A) No. 15, at 23 (Apr. 26), the Court concluded: The Court’s position, in regard to jurisdiction, cannot be compared to the position of municipal courts, amongst which jurisdiction is apportioned by the State, either ratione materiae or in accordance with a hierarchical system. This division of jurisdiction is, generally speaking, binding upon the Parties and implies an obligation on the part of the Courts ex officio to ensure its observance.

27

28

Id. This dictum implies that the Court considered itself as not being bound by such a doctrine. Here, the PCIJ is dealing more with the “derived” facet of compétence de la compétence (jurisdiction to entertain) than with its “primary” facet which is the power of the Court to determine if it is competent to act at all. This last aspect should be examined in the first place and not the “jurisdiction to entertain the suit” as the PCIJ did. On these points, see infra. This is a right formulation and expression of compétence de la compétence.

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

present case, the Court considers it unnecessary to go into the various problems connected with the question of the nature of the jurisdiction thus conferred upon it.29

Several judgments of the PCIJ give the impression that the establishment of the jurisdiction of the PCIJ was more governed by a sort of “presumption of incompetence”30 than by compétence de la compétence.31 For instance, in the Free Zones of Upper Savoy and the District of Gex case, the PCIJ stated that it “does not dispute the rule invoked by the French Government, that every Special Agreement, like every clause conferring jurisdiction upon the Court, must be interpreted strictly.”32 As clearly stated by the jurisprudence of the International Court of Justice (ICJ) and scholars, compétence de la compétence is not subject to any “presumption of

29

30

31

32

Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány Univ. v. The State of Czechoslovakia) (Czechoslovakia v. Hung.), 1933 P.C.I.J. (ser. A/B) No. 61, at 220-21 (Dec. 15) (emphasis added). See, for example, the report prepared by Basdevant, Jèze and Politis on behalf of the Republic of Czechoslovakia: “La vérification préalable de la compétence s’impose tout particulièrement aux tribunaux internationaux. La compétence des tribunaux internationaux est beaucoup plus étroite que celle des tribunaux nationaux. Non seulement elle est toujours exceptionnelle, mais encore elle déroge à une règle fondamentale du droit commun international: les litiges internationaux ne sont pas réglés par des tribunaux. … Aucun tribunal international n’est un tribunal de droit commun. En droit public international, tous les tribunaux internationaux sont exceptionnels. … Le tribunal international est toujours un tribunal doublement exceptionnel: 1° Il ne peut juger que les affaires mises dans sa compétence; 2° il ne peut juger ces affaires qu’en appliquant les règles de droit qui lui ont été prescrites par le traité ou la convention.” Jules Basdevant, Gaston Jèze & Nicolas Politis, Les principes juridiques sur la compétence des juridictions internationales et, en particulier, des Tribunaux Arbitraux Mixtes organisés par les Traités de paix de Versailles, de Saint-Germain, de Trianon, 44 Revue du droit public et de la science politique en France et à l’étranger 45, 46-47 (1927). See on this debate Mohieddine Mabrouk, Les exceptions de procédure devant les juridictions internationales 295-302 (1966). The author makes a distinction between “interprétation restrictive de la compétence ou «théorie du doute destructif»,” id. at 295, and “interprétation extensive de la compétence,” id. at 299. In the same vein, see the award in Amco Asia Corp. v. Indonesia, Decision on Jurisdiction, 23 I.L.M. 351, 359 (Int’l Ctr. Settlement Inv. Disputes 1983) (“[A] convention to arbitrate is not to be construed restrictively, nor, as a matter of fact, broadly or liberally. It is to be construed in a way which leads to find out and to respect the common will of the parties … Moreover … any convention, including conventions to arbitrate, should be construed in good faith, that is to say by taking into account the consequences of the commitments the parties may be considered as having reasonably and legitimately envisaged.”). See also Československa Obchodní Banka, A.S. v. Slovak Republic, Decision of the Tribunal on Objections to Jurisdiction, No. ARB/97/4, ¶ 34 (Int’l Ctr. Settlement Inv. Disputes May 24, 1999). Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1932 P.C.I.J. No. 46, at 138-39 (June 7) (emphasis added).

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incompetence.”33 Rather, compétence de la competence is an autonomous principle free of any technical threshold34 except those thresholds deriving from the inherent35 or express36 limitations to the exercise of the judicial function. Such an approach was pursued by Judge Spiropoulos in his Individual Opinion attached to the judgment rendered by the ICJ in the Ambatielos case37 and then by the ICJ in the Monetary Gold case, in which the Court categorically and definitively swept away any controversy surrounding the existence of thresholds when dealing with its compétence de la compétence.38 When dealing with the compétence de la compétence of the Council of the International Civil Aviation Organization (ICAO), the ICJ made the following statement: The fact that a defence on the merits is cast in a particular form, cannot affect the competence of the tribunal or other organ concerned,—otherwise parties would be in a position themselves to control that competence, which would be inadmissible. As has already been seen in the case of the competence of the Court, so with that of the Council, its competence must depend on the character of the dispute submitted to it and on the issues thus raised— not on those defences on the merits, or other considerations, which would become relevant only after the jurisdictional issues had been settled.39

In light of the use of such elements common to the ICJ as well as international arbitration, it can easily be asserted that the principle of compétence de la compétence is a principle of law which belongs to the “general principles of procedural law”40 govern33 34

35 36 37 38 39 40

Such a vision has been firmly criticized by some scholars. See, e.g., Georges Scelle, Le litige roumano-hongrois devant le Conseil de la Société des Nations (1927). But see Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Pol.), 1928 P.C.I.J. No. 15, at 53-54 (Apr. 26) (dissenting opinion of Judge Huber). Judge Huber considered that compétence de la compétence is subject to the raising of preliminary objections by the parties to a dispute. This approach is in contrast with Judge Moore’s dissenting opinion in the Mavrommatis Palestine Concessions case. Judge Moore quoted from the Recueil Dalloz the following passage: “jurisdiction is essentially a question of public order … even though the Parties be silent, the tribunal, if it finds that competence is lacking, is bound of its own motion to dismiss the case.” Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A) No. 2, at 58 (Aug. 30) (dissenting opinion of Judge Moore) (emphasis added). See infra. See infra. Ambatielos Case (Greece v. U.K.), Preliminary Objection, 1952 I.C.J. 28, 55 (July 1) (individual opinion of Judge Spiropoulos). Monetary Gold Removed from Rome in 1943 (Italy v. Fr.), Preliminary Question, 1954 I.C.J. 19, 28 (June 15) Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 I.C.J. 46, 61 (Aug. 18) (emphasis added). That expression was used for the first time by a Chamber of the ICJ in Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), Application by Nicar. for Permission to Intervene, 1990 I.C.J. 92, 136 (Sept. 13).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

ing international courts and tribunals.41 It is part of the “accepted canons governing matters pertaining to jurisdiction.”42 Nonetheless, one can ask whether the scope of the principle of compétence de la compétence is subject to the judicial, the arbitral or the quasi-judicial nature of an international court or tribunal. B. Grasping Its Applicability In its judgment in the Nottebohm Case, the Court, referring to the principle of compétence de la compétence pointed out that [t]his principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations.43

The reasoning of the Court draws a delineation between international permanent jurisdictions like the ICJ and arbitral tribunals when appraising compétence de la compétence. According to the Court, compétence de la compétence “assumes particular force”44 in the case of an institution which has been “pre-established by an international instrument defining its jurisdiction and regulating its operation.”45 How and why such a delineation between permanent jurisdictions and arbitral tribunals was ascertained by the ICJ, remains enigmatic and abstract. First of all, the Court itself does not really derive its compétence de la compétence from its Statute, but rather from a principle of general international law which has its foundations in international arbitration. This is not open to question. The Court has recognized in the Nottebohm Case that its compétence de la compétence transcends the ordinary meaning of Article 36, paragraph 6 of the Statute of the ICJ: Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, “whose function is to decide in accordance with international law such disputes as are submitted to it” (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the Court and the rule of general international

41

42 43 44 45

See, e.g., Salem Case (Egypt v. U.S.), 2 R. Int’l Arb. Awards 1161, 1181 (1932) (“That an arbitral tribunal is authorized to interpret the arbitration agreement (compromise) whereunder it is constituted has been contested in certain cases, but the prevailing opinion in international practice acknowledges their right to do so.” (emphasis added)). ICAO Council, 1972 I.C.J. at 164 (dissenting opinion of Judge Singh). Nottebohm Case (Liech. v. Guat.), 1953 I.C.J. 111, 119 (Nov. 18) (emphasis added). Id. Id.

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law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.46

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Neither the Statute of the ICJ nor the Rules of Court give a “particular force”47 to compétence de la compétence. Compétence de la compétence as a principle “which is accepted by general international law”48 is enshrined in international adjudication practice. Its applicability is not linked to the adjudicatory or the arbitral nature of the international body in charge of dispute settlement. The Court seems to have admitted this reality in the Legality of the Use of Force case whereby it endorsed the arguments of the parties according to which compétence de la compétence is “reflected”49 in Article 36, paragraph 6, of the Statute rather than being “based on” or “conferred by”50 that provision. Even international dispute settlement bodies like World Trade Organization (WTO) panels and the WTO Appellate Body which cannot be qualified as being arbitral tribunals or purely international permanent jurisdictions like the ICJ or the International Tribunal for the Law of the Sea (ITLOS), had recourse to compétence de la compétence within the WTO dispute settlement system as a “widely accepted rule that an international tribunal is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it.”51 Taking advantage of the silence of the DSU with regard to the nature of the panel function, the Appellate Body has gone even further and declared that “WTO panels have certain powers that are inherent in their adjudicative function. Notably, panels have the right to determine whether they have jurisdiction in a given case, as well as to determine the scope of their jurisdiction.”52 One peculiar example is the application of the principle of compétence de la compétence in the framework of Article 25 of the WTO Dispute Settlement Understanding (DSU). This provision provides for arbitration as “an alternative means of dispute settlement [to] facilitate the solution of certain disputes that concern issues that are clearly defined by both parties.”53 Article 25 also specifies that “resort to arbitration 46 47 48 49 50 51 52 53

Id. at 120. Id. at 119. Id. Legality of Use of Force (Serb. & Mont. v. Belg.), 2004 I.C.J. 279, 294 (Dec. 15). For a discussion on the distinction between “reflected” and “conferred,” see Chester Brown, A Common Law of International Adjudication 62 (2007). Appellate Body Report, United States—Anti-Dumping Act of 1916, ¶ 54 n.30, WT/DS136/ AB/R (Aug. 28, 2000). Appellate Body Report, Mexico—Tax Measures on Soft Drinks and Other Beverages, ¶ 45, WT/DS308/AB/R (Mar. 6, 2006) (emphasis added). Understanding on Rules and Procedures Governing the Settlement of Disputes art. 25.1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) (emphasis added) [hereinafter DSU]. On arbitration at the WTO, see Laurence Boisson de Chazournes, Arbitration at the WTO: A Terra Incognita to Be Further Explored, in Law

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

shall be subject to mutual agreement of the parties which shall agree on the procedures to be followed and that “the parties to the proceeding shall agree to abide by the arbitration award.”54 Most of the main ingredients of arbitration are thus referred to in Article 25 of the DSU. In the first and only case submitted to arbitration under Article 25, United States—Section 110(5) of the Copyright Act, and in spite of the agreement of the parties on the issues to be dealt with by the Arbitral Tribunal, the latter decided to raise ex officio the issue of the compétence de la compétence. It was an unequivocal sign of the will of the tribunal to fully exercise inherent judicial powers: The Arbitrators note that this is the first time since the establishment of the WTO that Members have had recourse to arbitration pursuant to Article 25 of the DSU. Whereas the DSB establishes panels or refers matters to other arbitration bodies, Article 25 provides for a different procedure. The parties to this dispute only had to notify the DSB of their recourse to arbitration. No decision is required from the DSB for a matter to be referred to arbitration under Article 25. In the absence of a multilateral control over recourse to that provision, it is incumbent on the Arbitrators themselves to ensure that it is applied in accordance with the rules and principles governing the WTO system. As recalled by the Appellate Body in United States—Anti-Dumping Act of 1916, it is a widely accepted rule that an international tribunal is entitled to consider the issue of its own jurisdiction on its own initiative. The Arbitrators believe that this principle applies also to arbitration bodies. In case there be any question as to the jurisdiction of the Arbitrators to deal with this dispute, we provide brief reasons for our conclusion that we do have the necessary jurisdiction.55

Even in instances where the agreement of the parties is reached ex post facto with regard to the jurisdiction of an arbitral tribunal, the latter can still decide to determine its compétence de la compétence. The award in Funnekotter v. Zimbabwe demonstrates such a high degree of due diligence exercised by some arbitral tribunals with regard to their compétence de la compétence. In that case, Zimbabwe first objected to the jurisdiction of the tribunal but then withdrew its objection. Nevertheless, for the arbitral tribunal presided over by a former president of the ICJ (Judge Gilbert Guillaume), compétence de la compétence had still to be assessed: In light of the importance of jurisdiction as a foundation for arbitral decisions and the special competence granted to arbitral tribunals to determine their jurisdiction, the Tribunal considers it important to address, albeit briefly, the question of jurisdiction despite the current agreement between the parties. It is the Tribunal’s judgment that jurisdiction under

54 55

in the Service of Human Dignity: Essays in Honour of Florentino Feliciano 181 (Steve Charnovitz, Debra P. Steger & Peter van den Bossche eds., 2005). DSU, supra note 53, art. 25.3 (emphasis added). Award of the Arbitrators, United States—Section 110(5) of the US Copyright Act, ¶ 2.1, WT/DS160/ARB25/1 (Nov. 9, 2001) (final emphasis added).

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the BIT and ICSID Convention has been established: all three requisites for jurisdiction have been met.56

1038

All these elements prove that compétence de la compétence finds application in judicial proceedings be they before permanent international judicial or quasi-judicial bodies. In all such fora, the exercise of compétence de la compétence is a prerequisite and a condition sine qua non to the exercise of any judicial or arbitral function. As suggested by Michael Reisman in its above-mentioned course at The Hague Academy of International Law, “competence” goes with “vocation.”57 Every single international court or tribunal has what may be called a “jurisdictional” vocation, that is, the vocation to exercise its powers within the limits of its competence. In this sense, compétence de la compétence is the root of that jurisdictional vocation. Permanent international jurisdictions and international arbitral tribunals are both governed by a similar rationale when it comes to preserving their jurisdictional vocation. Nevertheless, in spite of being a major component of the “common law of international adjudication,”58 compétence de la compétence is not governed by a unique conception when it comes to its scope. C. Grasping Its Scope The scope of application of compétence de la compétence can be subject to different interpretations. Two of them may be highlighted for the purposes of the present contribution, the one argued by Ibrahim Shihata and the other one by Sir Gerald Fitzmaurice. These analyses reveal the diverse facets of compétence de la compétence. Shihata considers that there are two stages in the exercise of the compétence de la compétence: the “power to determine the nature of the controversy”59 and the “power to determine, through the interpretation of the jurisdictional instruments, whether jurisdiction was accepted by the parties.”60 If these two stages can be seen as being major elements of the process through which an international court or tribunal exercises its compétence de la compétence, they do not give a clear picture of the function per se of the principle of compétence de la compétence. Moreover, such a distinction may lead to confusion. Shihata asserted that the first stage is “reserved to the parties; only they could decide whether the nature of the controversy is such as could be adjudicated.”61 Then, he proceeded to say “[i]n the second stage, which would come to existence only if

56

57 58 59 60 61

Funnekotter v. Zimbabwe, No. ARB/05/6, ¶ 94 (Int’l Ctr. Settlement Inv. Disputes Apr. 22, 2009) (emphasis added), available at http://ita.law.uvic.ca/documents/ZimbabweAward.pdf. Reisman, supra note 1, at 57. See Brown, supra note 50, at 62-63. Shihata, supra note 4, at 27. Id.; see also id. at 27-30. Id. at 28.

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

this primary question is answered in the affirmative, the tribunal becomes the judge of its own competence.”62 The chronological approach suggested by Shihata with regard to the exercise of compétence de la compétence does not reflect the practice of many international courts and tribunals. First of all, taking into account the practice of the ICJ, it is now well-established that the “power to determine the nature of the controversy”63 (and even the existence as such of the controversy) lies within the compétence de la compétence of the ICJ and is not a matter to be controlled ab initio by the parties to the dispute.64 Then, conceiving a sort of chronological hierarchy between the two-mentioned stages may induce a “chicken or egg dilemma.” An international court or tribunal in exercising its compétence de la compétence may also decide to look first at the title of jurisdiction, that is, may exercise first what Shihata called its power “to determine, through the interpretation of the jurisdictional instruments, whether jurisdiction was accepted by the parties.”65 Shihata himself recognized that such a hierarchy could be moot when he pointed out that an international court or tribunal exercising its compétence de la compétence “will do so primarily by interpreting the jurisdictional instrument to reach a conclusion on whether the parties have consented to adjudicate before it the dispute at hand.”66 The “Fitzmaurice interpretation” of the interplay of compétence de la compétence gives another perspective. In his Separate Opinion in the Northern Cameroons case, Judge Fitzmaurice explained that:

62 63 64

65

66

Id. Id. at 27. See, e.g., Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457, 463 (Dec. 20) (“However, while examining these questions of a preliminary character, the Court is entitled, and in some circumstances may be required, to go into other questions which may not be strictly capable of classification as matters of jurisdiction or admissibility but are of such a nature as to require examination in priority to those matters. In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated … Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded. With these considerations in mind, the Court has therefore first to examine a question which it finds to be essentially preliminary, namely the existence of a dispute, for, whether or not the Court has jurisdiction in the present case, the resolution of that question could exert a decisive influence on the continuation of the proceedings.”). Shihata, supra note 4, at 27; see, e.g., Certain Questions of Mutual Assistance in Criminal Matters (Djib. v. Fr.) (Judgment of June 4, 2008), available at http://www.icj-cij.org/ docket/files/136/14550.pdf. Shihata, supra note 4, at 28 (emphasis added).

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No doubt there is a duty in principle for an international tribunal to hear and determine the cases it is both seised of, and competent to go into; and therefore, equally to consider the question of its competence. But there must be limits to this duty.67

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The fact that jurisdiction is assumed, does not of course mean that the tribunal concerned necessarily proceeds to hear and determine the merits, for it may reject the claim in limine on some ground of inadmissibility (non-exhaustion of local remedies, undue delay, operation of a time-limit, etc.). Such a rejection however, on grounds of this kind, is itself an exercise of jurisdiction.68 The line between questions of jurisdiction (which basically relate to the competence of the Court to act at all) and questions of admissibility, receivability or examinability (which relate to the nature of the claim, or to particular circumstances connected with it) is apt in certain cases to get blurred. … [T]here have certainly been cases in which a claim has been pronounced to be inadmissible, even though the objections on the score of jurisdiction had not been fully disposed of, so that strictly the court might not be competent to act at all. Per contra, there have been cases in which a court has found itself to be competent, yet has refused to proceed any further, on what were essentially grounds of propriety.69

What can be deduced from this quotation is that the principle of compétence de la compétence operates in two ways. Primo, compétence de la compétence consists in the power of an international court or tribunal to decide on its “competence to act at all” (we refer to it as “jurisdiction over jurisdiction”). Secundo, compétence de la compétence allows an international court or tribunal to decide on the “admissibility” of a claim (we refer to it as “jurisdiction over admissibility”). Those two facets of the function of the principle of compétence de la compétence constitute the core of the power of international courts and tribunals to determine the limits of their own jurisdiction. Refusing to engage in a debate “whether ‘competence’ and ‘jurisdiction’, incompétence and fin de non-recevoir should invariably and in every connection be regarded as synonymous expressions,”70 the PCIJ in the Mavrommatis Palestine Concessions case stated that the preliminary question to be decided is not merely whether the nature and subject of the dispute laid before the Court are such that the Court derives from them jurisdiction to entertain it, but also whether the conditions upon which the exercise of this jurisdiction is dependent [conditions of admissibility] are all fulfilled in the present case.71

67 68 69 70 71

Northern Cameroons (Cameroon v. U.K.), Preliminary Objections, 1963 I.C.J. 15, 102 (Dec. 2) (separate opinion of Judge Fitzmaurice) (emphasis added). Id. at 101 n.2 (first and last emphases added). Id. at 102. Mavrommatis Palestine Concessions (Greece v. Gr. Brit.) 1924 P.C.I.J. (ser. A) No. 2, at 10 (Aug. 30). Id. (emphasis added).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

The two elements of “jurisdiction over jurisdiction” and “jurisdiction over admissibility” are here well defined. They are even better reflected in the following passage of the Northern Cameroons case: “It is the act of the Applicant which seises the Court but even if the Court, when seised, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction.”72 This being said, it is important to stress that from a chronological point of view, “jurisdiction over jurisdiction” is by principle the first step in the exercise of compétence de la compétence;73 then follows “jurisdiction over admissibility.” This dynamic has been confirmed by the case-law of the ICJ.74 The scope of application of compétence de la compétence is not limited to the aspects described above. A third element is also foreseen in the case-law of some international courts and tribunals: “jurisdiction to entertain the merits of a case.” In other words, the principle of compétence de la compétence vests international courts and tribunals with the power to determine not only if they have competence to act, but also competence to entertain the merits of a case. That facet of compétence de la compétence has been highlighted in the Appeal Relating to the Jurisdiction of the 72 73

74

Northern Cameroons, 1963 I.C.J. at 29 (judgment). But see South West Africa (Eth. v. S. Afr.), Preliminary Objections, 1962 I.C.J. 319, 574 (Dec. 21) (dissenting opinion of Judge Morelli). “Admissibility can relate only to conditions lack of fulfillment of which prevents a decision on the merits. Within these limits, however, it is quite possible to give the term a very wide meaning so as to refer to all the conditions having that character, including jurisdiction.” Id. (emphasis added). Here, “jurisdiction over jurisdiction” is seen as a potential component of “jurisdiction over admissibility.” See, for example, and by analogy the implications of the distinction between “objections to jurisdiction” and “objections to admissibility.” Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, 177 (Nov. 6) (“Objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits.” (emphasis added)). Nonetheless, in some specific situations, “compétence de la compétence over jurisdiction” may be determined simultaneously with “compétence de la compétence.” See, for instance, the judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide: In the view of the Court, the questions of jurisdiction and admissibility raised by Serbia’s preliminary objection ratione temporis constitute two inseparable issues in the present case. The first issue is that of the Court’s jurisdiction to determine whether breaches of the Genocide Convention were committed in the light of the facts that occurred prior to the date on which the FRY came into existence as a separate State, capable of being a party in its own right to the Convention; this may be regarded as a question of the applicability of the obligations under the Genocide Convention to the FRY before 27 April 1992. The second issue, that of admissibility of the claim in relation to those facts, and involving questions of attribution, concerns the consequences to be drawn with regard to the responsibility of the FRY for those same facts under the general rules of State responsibility.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), ¶ 129 (Judgment of Nov. 18, 2008), available at http://www.icj-cij. org/docket/files/118/14891.pdf (emphasis added).

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ICAO Council. Under a section of its judgment titled “Jurisdiction of the Council of the ICAO to Entertain the Merits of the Case,” the Court argued [t]he question is whether the Council is competent to go into and give a final decision on the merits of the dispute in respect of which, at the instance of Pakistan, and subject to the present appeal, it has assumed jurisdiction.75

This pronouncement is of great importance for two main reasons. First, it shows that the determination of the jurisdiction to entertain the merits may be linked to the exercise of the compétence de la compétence. But, most of all it underlines that compétence de la compétence ad definitionem has as a consequence the determination by an international court or tribunal of its “competence to act” or to quote from the judgment of the Court the ability of an international court or tribunal to “assume[] jurisdiction.”76 This is the primary function of the principle of compétence de la compétence. “Jurisdiction over admissibility” and “jurisdiction to entertain the merits” are only components of the derived function of the principle of compétence de la compétence.77 The derived function is what Shihata refers to as the subject matter of the power or the “process of the Court’s determination of its substantive jurisdiction.”78 The dynamic primary/derived function of compétence de la compétence is palpable in the award rendered by an arbitral tribunal in the Case Concerning the Reevaluation of the German Mark. The arbitral tribunal depicted the said dynamic in the following terms: Though the parties have raised no jurisdictional issue it still remains the responsibility of the Tribunal to determine, ex officio, its competence to act. Not even an explicit agreement 75 76 77

78

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 I.C.J. 46, 61 (Aug. 18) (emphasis added). Id. The primary function of compétence de la compétence is what Shihata calls the power in itself to determine jurisdiction. See Shihata, supra note 4, at 12. This is where one could disagree with Sir Gerald Fitzmaurice who seemed to place “jurisdiction over jurisdiction” and “jurisdiction over admissibility” on the same level, that is, both are components of the primary function of compétence de la compétence. Indeed, Fitzmaurice said that “jurisdiction over admissibility” “is itself an exercise of jurisdiction.” Northern Cameroons, 1963 I.C.J. at 101 n.2 (separate opinion of Judge Fitzmaurice) (emphasis added). Shihata, supra note 4, at 83. Shihata went further by explaining that [p]ut in its simplest form the subject matter of the Court’s power to determine its jurisdiction, is this jurisdiction itself. To differentiate it from the power (which is a jurisdiction of a more preliminary character), this subject matter will always be referred to as the Court’s “substantive jurisdiction.” … On so doing the Court has not always been a mere executor of the will of the parties. It considered, however, such will as the major foundation of its substantive jurisdiction, and, relying on it and on its constituent instrument, built for this jurisdiction a complicated structure that was made possible and became more refined by the continued exercise of the very compétence de la compétence.

Id. at 83.

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

by the parties could confer on the Tribunal a jurisdiction that is not contemplated by the LDA [London Agreement on German External Debts]. In accordance with the provisions of Article 28(7) of the LDA the Tribunal itself has the power to decide questions as to its jurisdiction. In these proceedings the Tribunal is satisfied that all the conditions giving rise to its authority to act have been met. … The Tribunal concludes that it is seised of jurisdiction.79

The last sentence of the above quoted excerpt says it all. To be or not to be “seised of jurisdiction,”80 there lies the primary facet of compétence de la compétence. The exercise by the arbitral tribunal of its “power to decide questions as to its jurisdiction” or the determination of “its authority to act” is mutatis mutandis an exercise of its compétence de la compétence. The subsequent determination of the “jurisdiction over admissibility” or/and the jurisdiction to entertain the merits is a step which is generally subject to the prior determination of the “competence to act at all.” The award in the Case Concerning the Reevaluation of the German Mark is unambiguous on that point: The Arbitral Tribunal, in its considered judgment, concludes that it not only has jurisdiction in the dispute before it but that it can and, in the circumstances of this case, must exercise that jurisdiction and deal with the representations made by the Applicants on their merits. … We conclude that the exercise of its jurisdiction in the matter before the Tribunal and the adjudication on the merits on the Applicants’ representations are not inconsistent with the Tribunal’s judicial functions.81

The scope of application of the principle of compétence de la compétence has revealed its various facets. It is now interesting to look at its modus operandi in the context of the multiplication of international courts and tribunals. Indeed, the latter has fostered substantial differentiation in the modus operandi of compétence de la compétence. II. Assessing the Effects of Compétence de la Compétence The assessment of the effects of compétence de la compétence has been, and is still, the subject of much discussion.82 Such controversies are a logical consequence of the 79

80 81 82

Whether the Reevaluation of the German Mark in 1961 and 1969 Constitutes a Case for Application of the Clause in Article 2(e) of Annex I A of the 1953 Agreement on German External Debts Between Belgium, France, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America on the One Hand and the Federal Republic of Germany on the Other (Belg. v. F.R.G.), 19 R. Int’l Arb. Awards 67, 87 (Agreement on German External Debts Art. 28 Arbitral Tribunal 1980) (emphasis added). Id. Id. at 88-90 (emphasis added). On the ICJ, see, for example, Amerasinghe, supra note 8, at 24-33.

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1044

various and rather inconsistent pronouncements of international courts and tribunals when dealing with their compétence de la compétence. While some international courts like the PCIJ (and to a considerably lesser extent the ICJ)83 have sometimes been reluctant to decisively affirm their compétence de la compétence, others have opted for a broad appreciation of the effect of their compétence de la compétence. It suffices here to think about the rather proactive exercise by the Arbitrator of his compétence de la compétence in the Ottoman Public Debt arbitration.84 Hence, reviewing the arbitral practice, some authors considered that “[i]t is questionable … whether the International Court of Justice has power to raise, of its own accord, a question concerning its jurisdiction, where it is not disputed by the parties.”85 It is not within the purposes of the present contribution to discuss in detail the controversies surrounding the effects of the principle of compétence de la compétence. Since the Alabama Arbitration, it is undisputable that compétence de la compétence has developed and has acquired some specific characteristics depending on the activity and the nature of the various international courts and tribunals. Nowadays, it is permissible to make a distinction between three types of effects that may derive from the exercise of compétence de la compétence by international courts and tribunals. Only the practice of a few international courts and tribunals will be analyzed hereinafter. First, attention should be drawn to what may be called the “extensive” effect of compétence de la compétence. The main development of such an effect has occurred in the practice of the ICJ. Then, focus will be put on what may be labeled the “restrictive” effect of compétence de la compétence. That effect emerged mainly in the context of awards rendered in the framework of the 1966 International Convention for the Settlement of Investment Disputes (ICSID Convention). Finally, the “sui generis” effect of compétence de la compétence will be highlighted through the experience of the World Trade Organization (WTO)’s Dispute Settlement Body (DSB).

83

84

85

See, for example, Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9, 27 (July 6), in which the Court refused to examine the validity of the “automatic reservation.” For a discussion of this case, see infra. Ottoman Public Debt (Belg. Iraq, Palestine, Transjordan, Greece, Italy & Turk.), 1 R. Int’l Arb. Awards 529, 565 (Anglo-Ger. Mixed Arb. Trib. 1925) (“Au cours des débats et avant que soit abordé le fond de la contestation, l’Arbitre, proprio motu, a signalé aux Parties le doute et l’hésitation que … de sa propre compétence quant au point ici en litige, en raison du fait que l’article 47, dont il tient sa mission, ne mentionne pas la Partie B du Tableau, où figurent les avances de la Société des Phares. Des déclarations faites alors par les parties, il résulte que, bien que le point n’ait pas échappé à leur attention. Elles acceptent la compétence de l’Arbitre, laquelle, dans l’esprit du Traité, doit embrasser la Partie B aussi bien que la Partie A du Tableau. L’Arbitre se range à cet avis. Il serait incompréhensible que, voulant réserver aux Etats en cause la garantie du recours à un arbitre contre les décisions du Conseil de la Dette, le Traité l’ait néanmoins exclue à l’égard de la Partie B du Tableau.”). John Liddle Simpson & Hazel Fox, International Arbitration 69 n.16 (1959).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

A. Measuring Its “Extensive” Effect: The ICJ Model The “extensive” effect of compétence de la compétence is foreseen in the framework of international courts and tribunals the jurisdiction of which is not subject to “explicit limitations.” In such fora, compétence de la compétence is usually seen as an inherent “right … and … power”86 of any international tribunal or an “inherent requirement[]”87 to the exercise of the judicial function. Once consent has been given to the jurisdiction of an international court or tribunal, the “extensive” effect of compétence de la compétence presupposes that the said court or tribunal has a quasi-unlimited power to determine the limits of its own jurisdiction.88 No specific or absolute express limitation on the exercise of compétence de la compétence is normally provided for in the statutes regulating the activity of these international courts and tribunals. Only the “inherent limitations”89 of the judicial function may operate to limit the exercise of compétence de la compétence.90 The main expression of the “extensive” effect of compétence de la compétence is the one found in Article 36, paragraph 6 of the Statute of the ICJ, which reads as follows: “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”91 The ICJ has long developed a practice consisting of attributing a positive effect to its compétence de la compétence both in contentious 86

87

88

89 90

Nottebohm Case (Liech. v. Guat.), Preliminary Objection, 1953 I.C.J. 111, 119 (Nov. 18) (“Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction.” (emphasis added)). The Rapporteur of the Convention of 1899 had emphasized the necessity of the principle of compétence de la compétence, presented by him as being “of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function.” Peace Conferences, supra note 18, at 71 (emphasis added). See the famous dictum in the Nottebohm Case, 1953 I.C.J. at 122 (“[T]he seising of the Court is one thing, the administration of justice is another.”). See also the rather broad perspective of Sir Gerald Fitzmaurice in the Northern Cameroons case. Northern Cameroons (Cameroon v. U.K.), Preliminary Objections, 1963 I.C.J. 15, 106 (Dec. 2) (separate opinion of Judge Fitzmaurice). Northern Cameroons, 1963 I.C.J. at 29 (judgment). See id. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity.

91

Id. (emphasis added). Statute of the International Court of Justice art. 36, ¶ 6, June 26, 1945, 33 U.N.T.S. 993 [hereinafter ICJ Statute] (emphasis added). On this point, see in particular, Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour internationale 38 (1967). See also Christian Tomuschat, Article 36, in The Statute of the

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and in advisory proceedings. It suffices to recall the passage of the Admission of a State to the United Nations case: Nowhere is any provision to be found forbidding the Court, “the principal judicial organ of the United Nations”, to exercise in regard to Article 4 of the Charter, a multilateral treaty, an interpretative function which falls within the normal exercise of its judicial powers. Accordingly, the Court holds that it is competent … and considers that there are no reasons why it should decline to answer the question put to it.92

One can also think about the Appeal Relating to the Jurisdiction of the ICAO Council case in which the Court recognized its power to determine proprio motu its own jurisdiction,93 that is, even if no objection to its jurisdiction is raised by the parties to a dispute and even if such a power does not derive from the text of Article 36, paragraph 6 of the Statute.94

92 93

International Court of Justice 589, 643 (Andreas Zimmermann, Christian Tomuschat & Karin Oellers-Frahm eds., 2006). Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948 I.C.J. 57, 61-62 (May 28). Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 I.C.J. 46, 52 (Aug. 18). The Court concluded: It is certainly to be desired that objections to the jurisdiction of the Court should be put forward as preliminary objections for separate decision in advance of the proceedings on the merits. The Court must however always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu. The real issue raised by the present case was whether, in the event of a party’s failure to put forward a jurisdictional objection as a preliminary one, that party might not thereby be held to have acquiesced in the jurisdiction of the Court. However, since the Court considers its jurisdiction to be established irrespective of any consent of Pakistan’s on that basis, it will now proceed to consider Pakistan’s objections.

Id. (emphasis added). See also, for situations of non-appearance before the ICJ, the following statement of the Court in the Fisheries Jurisdiction case: It is to be regretted that the Government of Iceland has failed to appear in order to plead the objections to the Court’s jurisdiction which it is understood to entertain. Nevertheless the Court, in accordance with its Statute and its settled jurisprudence, must examine proprio motu the question of its own jurisdiction to consider the Application of the United Kingdom. Furthermore, in the present case the duty of the Court to make this examination on its own initiative is reinforced by the terms of Article 53 of the Statute of the Court. According to this provision whenever one of the parties does not appear before the Court, or fails to defend its case, the Court, before finding upon the merits, must satisfy itself that it has jurisdiction. … [T]he Court, in examining its own jurisdiction, will consider those objections which might, in its view, be raised against its jurisdiction.

94

Fisheries Jurisdiction (U.K. v. Ice.), Jurisdiction of the Court, 1973 I.C.J. 3, 7-8 (Feb. 2) (emphasis added). Statute of the International Court of Justice, supra note 91, art. 36(6) (“In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.” (emphasis added)).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

These approaches of the “extensive” effect of compétence de la compétence are in contradiction with the position sustained by some scholars.95 Moreover, the ICJ itself has in few cases departed from that approach consisting in the conferral of an “extensive” effect to the principle of compétence de la compétence. The example which comes directly to mind is the one relating to the Norwegian Loans case in which the Court refused to examine the validity of the “automatic reservation” (domestic jurisdiction reservation) contained in the French declaration accepting the compulsory jurisdiction of the Court on the basis of the following reasoning: [T]he Court has before it a provision which both parties to the dispute regard as constituting an expression of their common will relating to the competence of the Court. The Court does not therefore consider that it is called upon to enter into an examination of the reservation in the light of considerations which are not presented by the issues in the proceedings. The Court, without prejudging the question, gives effect to the reservation as it stands and as the parties recognize it.96

That attitude was severely and lengthily criticized by Judge Lauterpacht in his Separate Opinion joined to the judgment in that case. He asserted: [I]t is my view that it was not open to the Court to act on that particular reservation. This is so for the reason that I consider it legally impossible for the Court to act in disregard of its Statute which imposes upon it the duty and confers upon it the right to determine its jurisdiction. That right cannot be exercised by a party to the dispute. The Court cannot, in any circumstances, treat as admissible the claim that the parties have accepted its jurisdiction subject to the condition that they, and not the Court, will decide on its jurisdiction. To do so is in my view contrary to Article 36(6) of the Statute which, without any qualification,97 confers upon the Court the right and imposes upon it the duty to determine its jurisdiction.98

More recently, the Prevention and Punishment of the Crime of Genocide case has vividly illustrated the “extensive” effect of the compétence de la compétence of the ICJ, excluding any possibility for the parties to a dispute to challenge a determination by 95

96 97 98

See, e.g., Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960-89 (pt. 9), 69 Brit. Y.B. Int’l L. 1, 6 (1999) (“When jurisdiction is referred to, it must always be asked, ‘jurisdiction to do what?’. Jurisdiction or competence is not, in the sense in which those terms are used in relation to a dispute, a general property vested in the court or tribunal contemplated: it is the power, conferred by the consent of the parties, to make a determination on specified disputed issues which will be binding on the parties because that is what they have consented to.”). Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9, 27 (July 6) (emphasis added). The use of the expression “without qualification” by Lauterpacht is another way of describing what we refer to as the “positive” effect of compétence de la compétence. Norwegian Loans, 1957 I.C.J. at 43 (separate opinion of Judge Lauterpacht) (emphasis added).

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the Court of the extent of its jurisdiction—except through an application for revision. Thus, the ICJ established a bridge between the exercise of its compétence de la compétence and the principle of res judicata: That principle [res judicata] signifies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute), and for the Court itself in the context of that case. However fundamental the question of the capacity of States to be parties in cases before the Court may be, it remains a question to be determined by the Court, in accordance with Article 36, paragraph 6, of the Statute, and once a finding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. There is thus, as a matter of law, no possibility that the Court might render “its final decision with respect to a party over which it cannot exercise its judicial function”, because the question whether a State is or is not a party subject to the jurisdiction of the Court is one which is reserved for the sole and authoritative decision of the Court.99

The ICJ went even further in defending its compétence de la compétence following the contention of the respondent party according to which reliance on the res judicata principle “would justify the Court’s ultra vires exercise of its judicial functions contrary to the mandatory requirements of the Statute.”100 The Court replied sharply by stating: However, the operation of the “mandatory requirements of the Statute” falls to be determined by the Court in each case before it; and once the Court has determined, with the force of res judicata, that it has jurisdiction, then for the purposes of that case no question of ultra vires action can arise, the Court having sole competence to determine such matters under the Statute.101

The counterpart for such “extensive” effect of compétence de la compétence is the recognition by the ICJ of the principle according to which the Court has to assess its compétence de la compétence even if the parties have not raised the issue. This progressive development demonstrates that the “extensive” effect of compétence de la compétence also implies that international courts and tribunals may be bound to exercise their power to determine their own jurisdiction irrespective of any consent

99

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007), ¶ 138 (first, second, and last emphases added), available at http://www.icj-cij.org/docket/files/91/13685.pdf; see also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J. 14, 23 (June 27). 100 Prevention and Punishment of the Crime of Genocide, ¶ 139 (internal quotations omitted). 101 Id. (emphasis added).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

to the parties to a dispute. The following statement of the ICJ in the Legality of the Use of Force cases is a clear indication of such trend: [I]t is the view of the Court that a distinction has to be made between a question of jurisdiction that relates to the consent of a party and the question of the right of a party to appear before the Court under the requirements of the Statute, which is not a matter of consent. The question is whether as a matter of law Serbia and Montenegro was entitled to seise the Court as a party to the Statute at the time when it instituted proceedings in these cases. Since that question is independent of the views or wishes of the Parties, even if they were now to have arrived at a shared view on the point, the Court would not have to accept that view as necessarily the correct one. The function of the Court to enquire into the matter and reach its own conclusion is thus mandatory upon the Court irrespective of the consent of the parties and is in no way incompatible with the principle that the jurisdiction of the Court depends on consent.102

The same rationale was already endorsed in part by the Iran-U.S. Claims Tribunal in the Marks v. Iran case in which the Tribunal stated: In this connection, Claimants’ argument that Respondent has waived its jurisdictional objections by not raising them is unavailing. Article 21(3) of the Tribunal Rules does not purport to preclude the Tribunal from raising jurisdictional issues on its own motion. Moreover, the Claims Settlement Declaration alone delimits the Tribunal’s jurisdiction. These jurisdictional boundaries, established by the Governments of the United States of America and the Islamic Republic of Iran in adhering to the Claims Settlement Declaration, are absolute and cannot be waived or modified unilaterally by an arbitrating party or parties. The Tribunal’s power to adjudicate claims derives from the Claims Settlement Declaration, not from the consent of individual parties to cases.103

However, the Tadić case is maybe the best illustration of what the “extensive” effect of compétence de la compétence entails for an international court or tribunal. The Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia in a decisive passage declared: This power, known as the principle of “Kompetenz-Kompetenz” in German or “la compétence de la compétence” in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its “jurisdiction to determine its own jurisdiction”. It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done. … This is not merely a power in the hands of the tribunal. In international law, where there is no integrated judicial system and where every

102 Legality of Use of Force (Serb. & Mont. v. Belg.), Preliminary Objections, 2004 I.C.J. 279, 295 (Dec. 15) (final emphasis added). 103 Marks v. Iran, 8 Iran-U.S. Cl. Trib. Rep. 290, 296-97 (1985) (emphasis added).

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judicial or arbitral organ needs a specific constitutive instrument defining its jurisdiction, the first obligation of … any … judicial body … is to ascertain its own competence.104

The Tadić case is not only a good example of the “extensive” effect of compétence de la compétence. It also embodies what may be called the “restrictive” effect of compétence de la compétence. “Restrictive” effect implies that the compétence de la compétence of an international court or tribunal is governed by “explicit limitations” (constitutional limitations). Therefore, when dealing with its compétence de la compétence, an international tribunal is not only vested of the right or power to decide of its own jurisdiction, but also to assess the extent of such a right or power. This pattern of “restrictive” effect of compétence de la compétence has been recognized straightforwardly by the ICTY in the Tadić case: It is true that this power [compétence de la compétence] can be limited by an express provision in the arbitration agreement or in the constitutive instruments of standing tribunals, though the latter possibility is controversial, particularly where the limitation risks undermining the judicial character or the independence of the Tribunal. But it is absolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred without an express provision allowing the waiver or the shrinking of such a well-entrenched principle of general international law.105

The “restrictive” effect of compétence de la compétence is unraveled more specifically in the context of the ICSID system. B. Assessing Its “Restrictive” Effect: The ICSID Convention Model Article 41, paragraph 1 of the 1966 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the ICSID Convention) reads as follows: “The Tribunal shall be the judge of its own competence.”106 By contrast to Article 36, paragraph 6 of the Statute of the ICJ, Article 41 refers explicitly to the principle of compétence de la compétence. Moreover, Article 41 does not incorporate the expression “[i]n the event of a dispute as to whether the Court has jurisdiction”107 which leaves no doubt as to the power of an ICSID arbitral tribunal to exercise proprio motu its compétence de la compétence. What can be termed the “restrictive” effect of compétence de la compétence under Article 41 of the ICSID Convention, that is the subjection of such power to consti-

104 Prosecutor v. Tadić, Case No. IT-94-1-AR72, ¶ 18 (Oct. 2, 1995) (internal quotations and citations omitted). 105 Id. ¶ 19 (emphasis added). 106 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, art. 41(1), Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention]. 107 ICJ Statute, supra note 91 (emphasis added).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

tutional requirements or explicit limitations, derives from the necessary reading of Article 41 in conjunction with Article 25 of the ICSID Convention.108 Under this provision, the determination by an ICSID tribunal of the extent of its own jurisdiction will be governed by some pre-established criteria like the existence of a legal dispute “arising directly out of an investment.”109 Henceforth, there is no conception of a “general unlimited jurisdiction to decide on its own jurisdiction”110 when facing for instance clauses such as Article 25 of the ICSID Convention. This is what distinguishes the “extensive” effect of compétence de la compétence from its “restrictive” effect. As explained by Schreuer, it must be remembered that not all of the Convention’s jurisdictional requirements are subject to the parties’ disposition. The Convention also contains objective requirements. Thus, the existence of a legal dispute arising directly out of an investment is an objective fact which must be ascertained independently of the parties’ consent. … Therefore, the tribunal may rely on a party’s failure to protest the non-existence of its consent. But it cannot rely on the parties when it comes to the Convention’s objective requirements.111

The ratio operandi of Article 41 of the ICSID Convention has been further developed by an ICSID tribunal in the Phoenix case. According to the tribunal: Article 41 of the ICSID Convention makes plain that the Tribunal is the judge of the Centre’s jurisdiction and its own competence. In order to determine the existence of its jurisdiction in any given case, an ICSID tribunal has to analyze the fulfillment of the requirements of the Washington Convention, and the requirements of the contract, the national law, the BIT or the multilateral treaty providing for the submission of investment disputes to ICSID arbitration.112 108 Article 25, paragraph 1 of the ICSID Convention states: The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.

ICSID Convention, supra note 106, art. 25(1). 109 Id. 110 Amerasinghe, supra note 8, at 24. 111 Christoph H. Schreuer, The ICSID Convention: A Commentary 535-36 (2001) (emphasis added and internal citations omitted). 112 Phoenix Action, Ltd. v. Czech Republic, No. ARB/06/5, ¶ 52 (Int’l Ctr. Settlement Inv. Disputes Apr. 15, 2009) (emphasis added). The arbitral tribunal further elaborated its reasoning and declared: In other words, in order for the Centre to have jurisdiction over a dispute, three—wellknown—conditions must be met, according to Article 25, to which one must add a condition resulting from a general principle of law, which is the principle of non retroactivity: first, a condition ratione personae: the dispute must oppose a Contracting State and a national of another Contracting State; second, a condition ratione materiae: the dispute must

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The “restrictive” effect of compétence de la compétence in the ICSID system is as such that if facts on which the jurisdiction of an ICSID tribunal rests are contested between the parties, the said tribunal has to decide on those facts. In other words, an ICSID tribunal cannot limit itself to accepting the facts as alleged by a claimant party. The tribunal must take into account the facts and their interpretation as alleged by the claimant, as well as the facts and their interpretation as alleged by the respondent, and take a decision on their existence and proper interpretation.113 The arbitral tribunal in the Phoenix case strengthened that assertion by concluding that the Tribunal considers that as a general approach, it is correct that factual matters should provisionally be accepted at face value, since the proper time to prove or disprove such facts is during the merits phase. But when a particular circumstance constitutes a critical element for the establishment of the jurisdiction itself, such fact must be proven, and the Tribunal must take a decision thereon when ruling on its jurisdiction. In our case, this means that the Tribunal must ascertain that the prerequisites for its jurisdiction are fulfilled, and that the facts on which its jurisdiction can be based are proven.114

This is properly where the “restrictive” effect of compétence de la compétence lies: an international court or tribunal “must ascertain that the prerequisites for its jurisdiction are fulfilled.”115 Those prerequisites usually take the form of “inherent limitations” in the context of the “extensive” effect of compétence de la compétence. They take the form of “explicit limitations” in the frame of the “restrictive” effect of compétence de la compétence. However, it should also be acknowledged that there is no absolute line of demarcation between the extensive effect of compétence de la compétence and its restrictive effect. Even Article 41 depending on the circumstances of a dispute may integrate a sort of balance between those two effects of compétence de la compétence. The award rendered in the Tokios case allows us to reach such a conclusion:

be a legal dispute arising directly out of an investment; third, a condition ratione voluntatis, i.e. the Contracting State and the investor must consent in writing that the dispute be settled through ICSID arbitration; fourth, a condition ratione temporis: the ICSID Convention must have been applicable at the relevant time.

Id. ¶ 54. See Inceysa Vallisoletana, S.L. v. El Salvador, Decision on Jurisdiction, No. ARB/03/26, 2006 WL 4491473, ¶ 155 (Int’l Ctr. Settlement Inv. Disputes Aug. 2, 2006) (“If, in order to rule on its own competence, the Arbitral Tribunal is obligated to analyze facts and substantive normative provisions that constitute premises for the definition of the scope of the Tribunal’s competence, then it has no alternative, but to deal with them.”); see also Industria Nacional de Alimentos, S.A. v. Peru, Decision on Annulment, No. ARB/03/4, ¶ 17 (Int’l Ctr. Settlement Inv. Disputes Sept. 5 2007) (dissenting opinion of Sir Franklin Berman). 114 Phoenix Action, ¶ 64 (emphasis added). 115 Id. (emphasis added).

113

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

[I]nvestment agreements confirm that state parties are capable of excluding from the scope of the agreement entities of the other party that are controlled by nationals of third countries or by nationals of the host country. The Ukraine-Lithuania BIT, by contrast, includes no such “denial of benefits” provision with respect to entities controlled by third-country nationals or by nationals of the denying party. We regard the absence of such a provision as a deliberate choice of the Contracting Parties. In our view, it is not for tribunals to impose limits on the scope of BITs not found in the text, much less limits nowhere evident from the negotiating history. An international tribunal of defined jurisdiction should not reach out to exercise a jurisdiction beyond the borders of the definition [restrictive effect of compétence de la compétence]. But equally an international tribunal should exercise, and indeed is bound to exercise, the measure of jurisdiction with which it is endowed [extensive effect of compétence de la compétence].116

This being said, the “restrictive” effect of compétence de la compétence has a counterpart. It is a “presumption of exhaustion of compétence de la compétence.” In other words, once compétence de la compétence has been exercised by an international court or tribunal, the power to determine jurisdiction is considered as being exhausted by the said court or tribunal. This scheme of things is the driving factor in the ICSID system. As recognized by the very first ICSID Annulment Committee, a decision by which an ICSID arbitral tribunal determined that its own jurisdiction (compétence de la compétence) can be subject to annulment if and only if the tribunal “manifestly” exceeded its powers. To borrow the words of the Decision on Annulment in the Klöckner v. Cameroon case: It is neither contestable nor contested that the arbitrators have “the power to determine their own jurisdiction” (la compétence de la compétence), subject only to the check of the ad hoc Committee in the case of annulment proceedings provided by the Washington Convention’s system. They have exercised this power by interpreting the Protocol of Agreement in itself and with respect to the Management Contract. Even if it is assumed that they thereby exceeded their powers, which remains to be proven, it would, as required by Article 52(1)(b) of the Convention, be necessary that this be “manifest” for the Application to be accepted.117

It should also be added that the determination by an ICSID tribunal of its own jurisdiction cannot be reviewed by the International Court of Justice (ICJ). Article 64 of the ICSID Convention provides for a submission to the jurisdiction of the ICJ of disputes concerning the interpretation or application of the ICSID Convention between Contracting States if the dispute is not settled by negotiation. The Executive Director’s Report on the ICSID Convention dealing with the jurisdiction of the ICJ under Article 64 states that “the provision does not confer jurisdiction on the Court

116 Tokios Tokelės v. Ukraine, Decision on Jurisdiction, No. ARB/02/18, ¶ 36 (Int’l Ctr. Settlement Inv. Disputes Apr. 29, 2004) (emphasis added). 117 Klöckner Industrie-Anlagen GmbH v. Cameroon, Decision on Annulment, 114 I.L.R. 243, 251-52 (Int’l Ctr. Settlement Inv. Disputes 1985) (emphasis added).

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to review the decision of a Conciliation Commission or Arbitral Tribunal as to its competence with respect to any dispute before it.”118 Finally, the other organ—the Secretary-General—dealing with issues of “jurisdiction” under the ICSID Convention does not benefit from the presumption of exhaustion of compétence de la compétence. The ICSID arbitral tribunals are the sole beneficiaries of such presumption. Therefore, when the ICSID Secretary-General has found that a dispute is not manifestly outside the ICSID’s jurisdiction,119 such a determination does not preclude an ICSID arbitral tribunal from exercising its compétence de la compétence.120 This interpretation was stressed in American Manufacturing & Trading, Inc. v. Zaire in which the Tribunal declared with regard to the registration of a request: The competence of the Tribunal is obviously derived from that of the Centre. … Nevertheless, this fact does not prevent the Tribunal from examining the competence of ICSID, because, evidently Article 36(3) does not confer upon the Secretary-General of ICSID, responsible for the registration of Request, notably as concerns verification of the competence of the Centre, the task other than a mere obligation of an extremely light control which in the execution does not, in any sense, bind the Tribunal in any way in the latter’s appreciation of its own competence or lack thereof. The Tribunal will still have a number of questions to raise and also to find answers thereto.121

In sum, a number of safeguards are attached to the “restrictive” effect of compétence de la compétence under the ICSID system. This is due in particular to the explicit limitations which govern the compétence de la compétence of ICSID arbitral tribunals. These tribunals are presumed to fully exercise their compétence de la compétence in light of the said explicit limitations and thus—in order to enhance the predictability of the system—it is necessary to guarantee that compétence de la compétence against de novo reviews or screenings by other arbitral tribunals (for example, ICSID annulment committees) or other international courts. In the context of other dispute settlement mechanisms, compétence de la compétence is characterized by a “sui generis” effect. “Sui generis” effect combines both inherent limitations and explicit limitations. It entails that an international court or 118

Int’l Bank for Reconstruction & Development, Report of the Executive Directors on the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, ¶ 45 (Mar. 18, 1965) [hereinafter Report of the Executive Directors], reprinted in Int’l Ctr. for the Settlement of Inv. Disputes [ICSID], ICSID Convention, Regulations and Rules, at 35, 48, ICSID Doc. No. ICSID/15 (Apr. 2006), available at http://icsid. worldbank.org/ICSID/StaticFiles/basicdoc/CRR_English-final.pdf. 119 See ICSID Convention, supra note 106, art. 36(3) (“The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre.”). 120 See Report of the Executive Directors, supra note 118. 121 Am. Mfg. & Trading, Inc. v. Zaire, 36 I.L.M. 1534, 1542 (Int’l Ctr. Settlement Inv. Disputes 1997) (emphasis added).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

tribunal should—or must in some circumstances—refrain from going “beyond its normative boundaries”122 in exercising its compétence de la compétence. The sui generis effect of compétence de la compétence, although not referred to by statutes and rules governing the functioning of international courts and tribunals, finds a strong reflection in the World Trade Organization’s dispute settlement system. C. A “Sui Generis” Effect: The WTO’s Dispute Settlement Body Model Article 3.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) reads as follows: The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.123

The wording of the DSU does not refer to “normative boundaries”124 but to “security and predictability”125 in the exercise by the panels and/or the Appellate Body of their compétence de la compétence in a given dispute. The principle of “not adding to or not diminishing rights and obligations” is another way of expressing such “normative boundaries.”126 Therefore, in the WTO Dispute Settlement System compétence de la compétence must be assessed by also keeping in mind the necessity of preserving the balance of rights and obligations negotiated by WTO member states and by the principle of not adding to or diminishing rights and obligations. The sui generis effect of compétence de la compétence in the DSU is well illustrated in the general statement 122 123 124 125 126

On that expression, see Reisman, supra note 1, at 57. DSU, supra note 53, art. 3.2 (emphasis added). Reisman, supra note 1, at 57. DSU, supra note 53, art. 3.2. In US—Certain EC Products, the Appellate Body ruled that the purpose of dispute settlement is only to preserve the rights and obligations of Members: [W]e observe that it is certainly not the task of either panels or the Appellate Body to amend the DSU or to adopt interpretations within the meaning of Article IX:2 of the WTO Agreement. Only WTO Members have the authority to amend the DSU or to adopt such interpretations. Pursuant to Article 3.2 of the DSU, the task of panels and the Appellate Body in the dispute settlement system of the WTO is “to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.” … Determining what the rules and procedures of the DSU ought to be is not our responsibility nor the responsibility of panels; it is clearly the responsibility solely of the Members of the WTO.

Appellate Body Report, United States—Import Measures on Certain Products from the European Communities, ¶ 92, WT/DS165/AB/R (Dec. 11, 2000) (emphasis in original).

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about WTO rules and the concept of “security and predictability” made by the Appellate Body in Japan—Alcoholic Beverages II: WTO rules are reliable, comprehensible and enforceable. WTO rules are not so rigid or so inflexible as not to leave room for reasoned judgments in confronting the endless and ever-changing ebb and flow of real facts in real cases in the real world. They will serve the multilateral trading system best if they are interpreted with that in mind. In that way, we will achieve the “security and predictability” sought for the multilateral trading system by the Members of the WTO through the establishment of the dispute settlement system.127

The sui generis effect of compétence de la compétence has been even more emphasized in the context of Arbitration under Article 25 of the DSU. In the course of the above-mentioned United States—Section 110(5) of the Copyright Act case, the Arbitrators considered that compétence de la compétence at the WTO should be exercised with a view to ensuring that the object and purpose of the WTO dispute settlement system is preserved. The following excerpt from their award is illustrative: Having regard to the object of the arbitration requested by the parties and the fact that the rights of other Members under the DSU are not affected by the decision of the European Communities and the United States to seek arbitration under Article 25, the Arbitrators are of the view that, pending further interpretation by the Members, they should declare that they have jurisdiction under Article 25 to determine the level of EC benefits which are being nullified or impaired in this case.128

Playing the card of prudence and being conscious of the sui generis effect of their compétence de la compétence, the Arbitrators inserted a footnote with the purpose of clarifying what they said in the above quoted passage and of pointing out the effect of their compétence de la compétence: The Arbitrators’ recognition of their jurisdiction in this case is not a unilateral extension of WTO jurisdiction, since it is dependent on the agreement of the parties to a dispute to have 127 Appellate Body Report, Japan—Taxes on Alcoholic Beverages, at 31, WT/DS10/AB/R (Oct. 4, 1996) (emphasis added). See also the position of the Panel in US—Section 301 Trade Act: Providing security and predictability to the multilateral trading system is another central object and purpose of the system which could be instrumental to achieving the broad objectives of the Preamble. Of all WTO disciplines, the DSU is one of the most important instruments to protect the security and predictability of the multilateral trading system and through it that of the market-place and its different operators. DSU provisions must, thus, be interpreted in the light of this object and purpose and in a manner which would most effectively enhance it. In this respect we are referring not only to preambular language but also to positive law provisions in the DSU itself.

Panel Report, United States—Sections 301-310 of the Trade Act of 1974, ¶ 7.75, WT/ DS152/R (Dec. 22, 1999). 128 United States—Section 110(5), supra note 55, ¶ 2.4 (emphasis added).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

recourse to Article 25 of the DSU. This decision is without prejudice to the DSU compatibility of the decision of the parties to accept this award as the level of nullification or impairment for the purpose of any further proceedings under Article 22 of the DSU in relation to this case. It is also without prejudice to any interpretation of the provisions of Articles 22 and 25 of the DSU by the Ministerial Conference or the General Council.129

Therefore, by contrast to the “extensive” and the “restrictive” effects of compétence de la compétence whereby international courts and tribunals either have a rather extensive interpretation (through the mechanism of inherent limitations) or a more restrictive interpretation (through the mechanism of explicit limitations) of their jurisdiction, the “sui generis” effect of compétence de la compétence purports to preserve the normative foundations and pillars of a dispute settlement system. Such a situation may lead to extreme “judicial caution”130 on the part of international courts and tribunals when dealing with their jurisdiction. The United States—Zeroing case gives some illustration of the tendency toward judicial caution in the exercise of compétence de la compétence. Article 8.7 of the DSU establishes that, whenever there is no agreement between the parties, the ultimate power to determine the composition of the panel rests with the Director-General. In United States—Zeroing, the Panel underscored that there is no provision of the DSU that would give it the authority to make a finding or ruling on the provisions of the DSU regarding panel composition contained in Article 8.7. The Panel refrained from ruling on the substance of the claim of the European Communities with respect to its composition. On appeal, the European Communities alleged that the Panel acted inconsistently with the “basic requirements of due process and the full exercise of the judicial function by failing to address properly its claim that the Panel was composed in a manner inconsistent with Articles 8.3 and 21.5 of the DSU.”131 The European Communities submitted that, because panels, and ultimately the Appellate Body, have the authority and the obligation to rule on the correct interpretation of the DSU, defects that could arise during panel composition are subject to judicial review by them. The United States responded that the European Communities’ claim on the Panel’s composition did not fall within the Panel’s jurisdiction and asserted that “an improperly composed panel would not have the authority to make findings on the merits of the European Communities’ claims, including on claims related to its own composition.”132 In a rather prudent manner, the WTO Appellate Body declared: On the substance of the European Communities’ appeal, we note that, on 28 November 2007, the Director-General was requested to determine the composition of the compliance panel under Article 8.7 of the DSU. In our view, Article 8.7 confers on the Director-General 129 Id. ¶ 2.7 n.30. 130 On this term, see Hersch Lauterpacht, The Development of International Law by the International Court 75 (1958). 131 Appellate Body Report, United States—Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), ¶ 169, WT/DS294/AB/RW (May 14, 2009). 132 Id. ¶ 170.

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the discretion to compose panels, which was properly exercised in this case. We therefore find that the Panel did not err in refraining, in paragraphs 8.17 and 9.1(a) of the Panel Report, from making a finding on whether it was improperly composed. In the light of this conclusion, we do not consider it necessary to address the other arguments made by the parties on this matter.133

The WTO dispute settlement system has allowed the development of new trends with regard to compétence de la compétence. Since the Alabama case, compétence de la compétence seemed to be rooted in a sort of “natural law” governing international courts and tribunals. By admitting that compétence de la compétence may be subject to new legal dimensions or new legal expressions, many dispute settlement mechanisms—which do not appear prima facie as traditional international courts and tribunals134—might be able to give new contours to the principle of compétence de la compétence in disputes brought under their statutes and their rules of procedure.135 The contours and effects of the principle of compétence de la compétence thus benefit from the multiplication of international courts and tribunals. Then, remains the question of knowing whether compétence de la compétence and the phenomenon of proliferation of dispute settlement procedures are tied by a sort of “reciprocal” relationship. The principle of compétence de la compétence has clearly evolved and will continue to evolve in this era of multiplication of courts and tribunals. However, the effect as well as the action of compétence de la compétence in the rationalization of such a phenomenon—that is, the action of compétence de la compétence as an “ordering principle”—still need to be evaluated. III. Contextualizing Compétence de la Compétence in an Era of Proliferation of Courts and Tribunals: An Ordering Principle? In dealing with principles and rules capable of avoiding jurisdictional overlaps or conflicts between various international courts and tribunals, the principle of compétence de la compétence has not garnered much attention. Yuval Shany has, however, in his 133 Id. ¶ 172 (second and third emphases added). 134 See, e.g., Abyei Area (Sudan v. Sudan People’s Liberation Movement/Army), Final Award, ¶ 502 (Perm. Ct. Arb. July 22, 2009), available at http://www.pca-cpa.org/upload/files/ Abyei20Final20Award.pdf. The Arbitral tribunal (on which Michael Reisman sat as an arbitrator) considered that the fact that the ABC was not an adjudicatory body strictu sensu does not mean that it lacked Kompetenz-Kompetenz. Moreover, a number of features of the ABC proceedings suggest that the ABC was intentionally endowed with the authority to interpret the provisions of its constitutive instruments, which define the scope of its own competence.

Id. 135 For a discussion of the application of the principle of compétence de la compétence in the framework of non-compliance procedures, see Laurence Boisson de Chazournes & Makane Moïse Mbengue, À propos du caractère juridictionnel de la procédure de nonrespect du Protocole de Kyoto, in Changements climatiques: les enjeux du contrôle international 73, 77-85 (Sandrine Maljean-Dubois ed., 2007).

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seminal work on The Competing Jurisdictions of International Courts and Tribunals focused on one of the aspects of compétence de la compétence which is the so-called “principle of comity,”136 but did not go so far as to refer directly to the principle of compétence de la compétence as a competition-regulating principle in international adjudication. Addressing the principle of comity, Shany explains that a court or tribunal exercising discretionary jurisdiction … might be justified in deciding to defer jurisdiction in favour of another judicial body, which is better situated to address the particular dispute at hand and to take into consideration the various rights and interests of the parties before it.137

Such an interpretation of comity shows that it may play in some circumstances the same function as the principle of the compétence de la compétence. In that sense, it appears better to refer to compétence de la compétence as a means of avoiding jurisdictional conflicts since it is enshrined in the lex lata, while comity, for the time being, is soft, to say the least, in its legal facets. Shany himself admits that “while a rule of comity is certainly desirable it is far from clear whether such rule can be regarded as part of existing international law.”138 Furthermore, comity is not per se a norm regulating jurisdictional overlaps between international courts and tribunals. It is a “consideration” that may be taken into account in the exercise by an international court or tribunal of its compétence de la compétence and not the legal causation through which a court or a tribunal will determine its “competence to act at all.” This perception of comity is palpable in the Order of the Arbitral Tribunal constituted under Annex VII of the Convention on the Law of the Sea in the Mox Plant case. Here, the Tribunal dealing with its compétence de la compétence judged: In the circumstances, and bearing in mind considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States, the Tribunal considers that it would be inappropriate for it to proceed further with hearing the Parties on the merits of the dispute in the absence of a resolution of the problems referred to.139

This being said, considering the principle of compétence de la compétence as an ordering principle in a context of multiplication of international courts and tribunals might raise a number of legal problems. In particular, the “stakes are high” when 136 See Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals 260 (2003). 137 Id. at 261-62. 138 Id. 139 MOX Plant (Ir. v. U.K.), Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, 42 I.L.M. 1187, ¶ 28 (Perm. Ct. Arb. 2003) (emphasis added), available at http://www.pca-cpa.org/upload/files/MOX20Order20 no3.pdf.

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compétence de la compétence is used by an international court or tribunal to decline to exercise jurisdiction in favor of another court or tribunal in a specific dispute settlement system such as the WTO dispute settlement system. The Mexico—Soft Drinks case is illustrative of the difficulties which may arise of such implementation of the principle of compétence de la compétence. In casu, the question was to determine if a WTO panel could—in light of its compétence de la compétence—decline to exercise jurisdiction over a particular dispute in favor of a NAFTA Chapter 20 panel, without diminishing the rights of the complaining WTO Member under the DSU and other WTO agreements. The legitimacy of that question was exacerbated by the pronouncement of the Appellate Body in Mexico—Corn Syrup, where it stated that “panels are required to address issues that are put before them by the parties to a dispute.”140 From this quotation, one may doubt whether the power or the discretion of a WTO panel extends to freely deciding to refrain from exercising its jurisdiction even if a panel has an inherent power to establish whether it has jurisdiction and whether a particular matter is within its jurisdiction.141 The position of the Panel itself in Mexico—Soft Drinks was to consider that it had “no discretion to decide whether or not to exercise its jurisdiction in a case properly before it.”142 Referring to Article 11 of the DSU and to the ruling of the Appellate Body in Australia—Salmon,143 the Panel observed that “the aim of the WTO dispute settlement system is to resolve the matter at issue in particular cases and to secure a positive solution to disputes”144 and that a panel is required “to address the claims on which a finding is necessary to enable the DSB to make sufficiently precise recommendations or rulings to the parties.”145 From this, the Panel concluded that a WTO panel “would seem therefore not to be in a position to choose freely whether or not to exercise its jurisdiction.”146 On appeal, Mexico contended that the Panel erred in rejecting Mexico’s request that it decline to exercise jurisdiction. Mexico submitted that WTO panels “have certain implied jurisdictional powers that derive from their nature as adjudicative bodies.”147 According to Mexico,

140 Appellate Body Report, Mexico—Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States, ¶ 36, WT/DS132/AB/RW (Oct. 22, 2001). 141 For a general discussion of inherent powers at the WTO, see Isabelle Van Damme, Inherent Powers of and for the WTO Appellate Body (Ctr. for Trade and Econ. Integration, Working Paper No. 02-2008, 2008), available at http://www.graduateinstitute.ch/webdav/site/ctei/shared/CTEI/cteiworkpapers/WPCTEI-InherentPowersAB29Aug.pdf. 142 Panel Report, Mexico—Tax Measures on Soft Drinks and Other Beverages, ¶ 7.18, WT/ DS308/R (Oct. 7, 2005). 143 Appellate Body Report, Australia—Measures Affecting Importation of Salmon, ¶ 223, WT/DS18/AB/R (Oct. 20, 1998). 144 Mexico—Soft Drinks, supra note 142, ¶ 7.8. 145 Id. 146 Id. 147 Mexico—Soft Drinks, supra note 52, ¶ 42 (quoting Mexico’s Appellant’s Submission).

50 Laurence Boisson de Chazournes, The Principle of Compétence de la Compétence in International Adjudication

[s]uch powers include the power to refrain from exercising substantive jurisdiction in circumstances where the underlying or predominant elements of a dispute derive from rules of international law under which claims cannot be judicially enforced in the WTO, such as the NAFTA provisions or when one of the disputing parties refuses to take the matter to the appropriate forum.148

The Appellate Body decided not to follow Mexico’s assertions and rather declared: Notably, panels have the right to determine whether they have jurisdiction in a given case, as well as to determine the scope of their jurisdiction. In this regard, the Appellate Body has previously stated that it is a widely accepted rule that an international tribunal is entitled to consider the issue of its own jurisdiction on its own initiative, and to satisfy itself that it has jurisdiction in any case that comes before it. … [I]t does not necessarily follow, however, from the existence of these inherent adjudicative powers that, once jurisdiction has been validly established, WTO panels would have the authority to decline to rule on the entirety of the claims that are before them in a dispute.149

Although it upheld the finding of the Panel, the Appellate Body was careful to make a precision which is of importance for the exercise of compétence de la compétence by WTO panels, noting that it had expressed no view as to whether there may be other circumstances in which legal impediments could exist that would preclude a panel from ruling on the merits of the claims that are before it. In the present case, Mexico argues that the United States’ claims under Article III of the GATT 1994 are inextricably linked to a broader dispute, and that only a NAFTA panel could resolve the dispute as a whole. Nevertheless, Mexico does not take issue with the Panel’s finding that “neither the subject matter nor the respective positions of the parties are identical in the dispute under the NAFTA … and the dispute before us.” Mexico also stated that it could not identify a legal basis that would allow it to raise, in a WTO dispute settlement proceeding, the market access claims it is pursuing under the NAFTA. It is furthermore undisputed that no NAFTA panel as yet has decided the “broader dispute” to which Mexico has alluded. Finally, we note that Mexico has expressly stated that the socalled “exclusion clause” of Article 2005.6 of the NAFTA had not been “exercised”. We do not express any view on whether a legal impediment to the exercise of a panel’s jurisdiction would exist in the event that features such as those mentioned above were present. In any event, we see no legal impediments applicable in this case.150

The Appellate Body makes it clear here that in some circumstances, a panel may, in the exercise of its compétence de la compétence, decline to “act at all” if another dispute settlement mechanism is more suitable to entertain its jurisdiction. None-

148 Id. (internal quotations omitted). 149 Id. ¶¶ 45-46 (internal citations and quotations omitted). 150 Id. ¶ 54 (emphasis added) (ellipsis in original) (internal citations omitted).

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theless, by contrast to the Arbitral Tribunal in the Mox Plant case, the Appellate Body is not referring to soft considerations of “comity” but to “legal impediments” (“obstacles juridiques” in French) as the core basis of the operation of the principle of compétence de la compétence as a competition-regulating principle in international adjudication.151 For the time being, instances of practice showing acceptance of the principle of compétence de la compétence as an ordering principle remains scarce. Even before the reports of the Panel and the Appellate Body in the above-mentioned Mexico—Soft Drinks case, a NAFTA Chapter 20 panel in the Mexico—Broom Corn Brooms case had indicated how reticent international courts and tribunals can be with respect to the use of the principle of compétence de la compétence as a means for regulating jurisdictional conflicts or overlaps. The NAFTA Chapter 20 panel stated that [i]t will be recalled that the United States argued that the Panel did not have jurisdiction to adjudicate claims by Mexico based on the obligations of GATT Article XIX and the WTO Agreement on Safeguards—the GATT/WTO obligations that govern the type of global safeguard measure involved in this case. The panel determined that it was not necessary to resolve this preliminary objection, because it was possible to dispose of the issues in dispute under the NAFTA agreement alone. … It was thus unnecessary for the Panel to make any determination with regard to the preliminary United States objection concerning the Panel’s jurisdiction to consider the GATT/WTO provisions referred to in NAFTA Article 802.152

Conferring on the principle of compétence de la compétence the function of an ordering principle in the galaxy of international courts and tribunals so as to avoid overlaps and conflicts of jurisdiction does not mean in any sense that compétence de la compétence precludes a court or tribunal from exercising its supervisory powers over another court when it is given such mandate by its statute. This was clearly recognized by the ICJ in the Appeal Relating to the Jurisdiction of the ICAO Council case. One of the parties to the dispute pleaded that the principle of the compétence de la compétence made the ICAO Council’s jurisdictional decisions conclusive and unappealable.153 The ICJ replied to that contention in a strong passage, saying: Not only do issues of jurisdiction involve questions of law, but these questions may well be as important and complicated as any that arise on the merits,—sometimes more so. They 151

In this context, attention should also be paid to Article 2005.6 of NAFTA which reads as follows: “Once dispute settlement procedures have been initiated under Article 2007 or dispute settlement proceedings have been initiated under the GATT, the forum selected shall be used to the exclusion of the other.” North American Free Trade Agreement, art. 2005.6, Dec. 17, 1992, 32 I.L.M. 289, 605. 152 In re U.S. Safeguard Action Taken on Broom Corn Brooms from Mex., ¶¶ 49-50 (NAFTA Chapter Twenty Arbitral Tribunal Jan. 30, 1998), available at http://www.worldtradelaw. net/nafta20/brooms.pdf. 153 Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 I.C.J. 46, 53 (Aug. 18).

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may, in the context of such an entity as ICAO, create precedents affecting the position and interests of a large number of States, in a way which no ordinary procedural, interlocutory or other preliminary issue could do. It would indeed be hard to accept the view that even the most routine decisions of the Council on points of the interpretation or application of the Treaties should be automatically appealable, while decisions on jurisdiction, which must ex hypothesi involve important general considerations of principle, should not be, despite the drastic effects which … they are capable of having.154

And the Court added: Clearly, not only do obvious reasons of convenience call for such exercise as early as possible—in the present case, here and now—but also substantial considerations of principle do so,—for it would be contrary to accepted standards of the good administration of justice to allow an international organ to examine and discuss the merits of a dispute when its competence to do so was not only undetermined but actively challenged. Yet this is precisely what the Court would be allowing if it now held itself not to have jurisdiction to deal with the matter because it could only hear appeals from final decisions of the Council on the merits.155

At a time of proliferation of international courts and tribunals, with risks of contradictory judgments as well as risks of forum shopping and of parallel litigation, it appears important to think of legal ways to overcome these risks. The range of practices in terms of forum selection provisions running from exclusivity to non-exclusivity, and the scarcity of jurisdiction-regulating norms addressing multiple proceedings, such as the lis alibi pendens, electa una via or res judicata provisions, do not lead one to conclude that there are clear and common jurisdictional-regulating rules.156 As advocated by Yuval Shany: [I]n the future, given the need to strengthen the coherence of the international legal system, new methods ought to be explored in order to unify further the international judiciary and to alleviate procedural problems associated with jurisdictional overlaps, inter alia, by introducing additional jurisdiction-regulating rules capable of providing greater levels of coordination and harmonization to the relations between the various international courts and tribunals.157

The principle of compétence de la compétence should surely be taken into account in the range of new methods capable of alleviating jurisdictional overlaps. In the light of the practice analyzed throughout this contribution, it remains however uncertain

154 155 156 157

Id. at 56-57. Id. at 57. See Laurence Boisson de Chazournes, Book Review, 98 Am. J. Int’l L. 622 (2004). Shany, supra note 136, at 127.

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how and when the principle of compétence de la compétence will be consecrated by international courts and tribunals as competition-regulating principle. Nevertheless, one cannot ignore that if the principle of compétence de la compétence has not yet effectively rationalized the proliferation of courts and tribunals, the said proliferation has without any doubt influenced the development of the contours and effects of the principle of compétence de la compétence in the system of international adjudication. It is not only the law which benefits from different perceptions in the context of the multiplication of international court and tribunals; the fundamental principles governing the procedural law of international courts and tribunals such as compétence de la compétence are themselves being rethought through new lenses. Whether these developments are for better or for worse might in the future capture the attention of international lawyers.

Chapter 51 Shaping the Future of International Law: The Role of the World Court in Law-Making Alain Pellet*

Among his very many, and most various, interests Michael Reisman has shown a marked interest in international law-making, including the role of the World Court in this regard.1 As he has very aptly noted, “[a] substantial body of international law has not derived from formal law-making institutions,”2 a category to which the International Court of Justice or its predecessor do not belong. However, the dedicatee of this volume also asserts that “the Court seems particularly ill structured for a progressive development role. Lawmaking is not a philosophical or scientific exercise. It is quintessentially political, requiring knowledge of the diverse interests and the intensity of demand of the political actors engaged, and then skill in trading support and forming coalitions. The Court cannot do this, and even trying would compromise its judicial character.”3 However, while this apparently categorical view seems, with all due respect, debatable, the learned author himself qualifies it and makes it much easier to be understood when he writes: “To be sure, the judicial function involves ‘supplementing and policing’ the application of inherited law, which becomes particularly urgent in periods of rapid transition. This is not judicial activism but an appropriate discharge of the judicial function, and it is quite distinct from an active lawmaking role that deems itself entitled to ignore expressions of authoritative policy and assumes a competence to determine itself, case-by-case and ‘progressively,’ what the law should be.”4 In other * 1 2

3 4

I wish to express my thanks to Céline Folsché for her efficient aid in gathering the documentation and finalizing the English text of this essay. In this short essay, I will use the expression “World Court” to name both the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ). W. Michael Reisman, The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application, in Developments of International Law in Treaty Making 15 (Rüdiger Wolfrum & Volker Röben eds., 2005). W. Michael Reisman, Judge Shigeru Oda: A Tribute to an International Treasure, 16 Leiden J. Int’l L. 57, 63 (2003). W. Michael Reisman, Judge Shigeru Oda: Reflections on the Formation of a Judge, in 1 Liber Amicorum Judge Shigeru Oda 66 (Nisuke Ando et al. eds., 2002).

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 1065-1083.

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words—and with this presentation the present writer fully agrees—while the Court can certainly not “legislate” “against” existing legal rules, it may—and must—contribute to elucidating existing norms and, if need be, supplement and complement them (within the general framework of the international legal system). But this seems to me to simply amount to progressive development of international law.5 I. Progressive Development of International Law by the World Court As is well known, the notion of progressive development is difficult to precisely grasp. Although it is recognized in Article 15 of the Statute of the International Law Commission (ILC),6 the distinction between progressive development of international law on the one hand and codification on the other hand has never been strictly applied by the Commission—and it could not. Not only “[i]t is difficult to say when, on any particular subject, codification stops and progressive development begins,”7 but also, as noted as early as in the “Lauterpacht Survey” listing possible topics for codification by the ILC, “there are only very few branches of international law with regard to which it can be said that they exhibit such a pronounced measure of agreement in the practice of States as to call for no more than what has been called consolidating codification.”8 And the Survey concluded on this point: “It is clear that if the task of the International Law Commission were confined to fields with regard to which there is a full measure of agreement among States, the scope of its task would be reduced to a minimum.”9 But this has an impact, too, in relation to the limited but undisputable and unavoidable law-making role that the International Court may be called to play. “However theoretical assertions that deny law-making power to international judicial bod-

5

6 7 8

9

For a more restrictive definition, see José Maria Ruda, Some of the Contributions of the International Court of Justice to the Development of International Law, 24 N.Y.U. J. Int’l L. & Pol. 35, 35 (1991). G.A. Res. 174 (II) (Nov. 21, 1947). Arthur Watts, Introduction to 1 The International Law Commission 1949-1998, at 9 (Arthur Watts ed., 1999). Memorandum submitted by the Secretary-General [in fact prepared by Hersch Lauterpacht], Survey of International Law in Relation to the Work of Codification of the International Law Commission, ¶ 10, delivered to the General Assembly, U.N. Doc. A/ CN.4/1/Rev. 1 (Feb. 10, 1949) [hereinafter Survey], reproduced in The International Law Commission and the Future of International Law, 74 (Michael Anderson et al. eds., 1998) [hereinafter The ILC and the Future of International Law]; see also H. Lauterpacht, Codification and Development in International Law, 49 Am. J. Int’l L. 17 (1955); Ahmed Mahiou, Rapport général—Les objectifs de la codification, in Société française pour le droit international, colloque d’Aix-en-Provence, La codification du droit international, 11, 17-18 (1999). Survey, para. 11, in The ILC and the Future of International Law, supra note 8, at 75.

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

ies ignore the reality that … international courts—in particular the ICJ—do play a major law-making role.”10 This paper is not the proper place to re-open the endless debate concerning the possibility for the Court to declare non liquet;11 suffice it to say that the present writer has no doubt that, in its contentious function at least, it cannot,12 as recalled by Judge Higgins in her Dissent appended to the Court’s 1996 Opinion on the Legality of the Threat or Use of Nuclear Weapons, “It is also … an important and well-established principle that the concept of non liquet—for that is what we have here—is no part of the Court’s jurisprudence.”13 This conclusion clearly stems from the debates in the 1920 Committee of Jurists of the League of Nations which elaborated the Statute of the Permanent Court of International Justice (PCIJ)14 and is reinforced by the well known formula introducing Article 38 of the Statute of the ICJ as amended in 194515 10 11

12 13

14 15

Alan Boyle & Christine Chinkin, The Making of International Law 268 (2007). See, e.g., Julius Stone, Non Liquet and the Function of Law in the International Community, 35 Brit. Y.B. Int’l L. 125-161 (1959) (a reply to Sir Hersch Lauterpacht’s Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order, in Symbolae Verzijl 196-221 (Frederik Mari van Asbeck et al. eds, 1958)); Lucien Siorat, Le problème des lacunes en droit international—Contribution à l’étude des sources du droit et de la fonction judiciaire (1958); J. Salmon, Quelques observations sur les lacunes en droit international public, 3 Revue Belge de Droit International 440-58 (1967); J. Salmon, Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou de l’emploi d’armes nucléaires’ rendu le 8 juillet 1996 par la Cour internationale de Justice, in Mélanges en l’honneur de Nicolas Valticos—Droit et Justice 197 (René-Jean Dupuy ed., 1999); H. Thirlway, The Law and Procedure of the International Court of Justice 1960-1989, Part One, 60 Brit. Y.B Int’l L. 4, 77-84 (1989); Prosper Weil, ‘The Court Cannot Conclude Definitely … ’—Non Liquet Revisited, in Politics, Values and Functions—International Law in the 21st Century; Essays in Honor of Professor Louis Henkin 105 (Jonathan I. Charney et al. eds., 1997); Daniel Bodansky, Non Liquet and the Incompleteness of International Law, in International Law, the International Court of Justice and Nuclear Weapons 153 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999); Kati Kulovesi, Legality or Otherwise?: Nuclear Weapons and the Strategy of Non Liquet, 10 Finnish Y.B. Int’l L. 55 (2002); Ige F. Dekker & Wouter G. Werner, The Completeness of International Law and Hamlet’s Dilemma: Non Liquet, the Nuclear Weapons Case and Legal Theory, in On the Foundations and Sources of International Law 5 (Ige F. Dekker & Harry H.G. Post eds., 2003). See Alain Pellet, Article 38, in The Statute of the International Court of Justice—A Commentary 677, 703-04 (Andreas Zimmermann et al. eds., 2006). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 591, at para. 36 (July 8) (dissenting opinion of Judge Higgins); see also id. at 311 (dissenting opinion of Vice-President Schwebel). For an overview, see Vice-President Schwebel’s dissenting opinion, id. at 323, or Pellet, supra note 12, at 685-88. This formula did not appear in Article 38 of the PCIJ Statute and was added by the San Francisco Conference, following an amendment introduced by Chile. See Pellet, supra

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according to which the Court’s “function is to decide in accordance with international law such disputes as are submitted to it.” It then must decide, failing which it would not perform the mission that the member states of the United Nations have entrusted to it. And here is the link with the very nature of international law: if, as accepted above, the precise rules of general international law are, more often than not, incomplete and/or subject to debate as to their content, their scope and, sometimes, their very existence, the Court must nevertheless decide; and, for doing so, it will have to make a choice between the possible applicable rules—or between the defensible interpretations of a single norm. This is precisely what can be called progressive development of international law and, more or less avowedly, this is, in effect, what it quite usually does. It is quite revealing in this respect that the Court has never declined to decide on the ground of the silence or obscurity of the law—while it has overtly shown hesitation as to the existence of an applicable rule at least in one occasion16 when complying with its advisory function. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ declared that “in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.”17 Had the same matter been before the Court in a contentious case, it could certainly not have left the question undecided and it would have had to “reach a definitive conclusion” in this respect. To that aim, it would necessarily have “progressively developed” the existing law—probably without openly recognizing that it was doing so. The role that the ICJ has to play “in the progressive development of international law, both in regard to legal issues between States and in regard to constitutional interpretation” was recognized by the General Assembly as early as 194718 and has been performed by the Court with success since then. As a former President of the ICJ put it, “the Court has never hesitated to recognize ‘new situations’ or the evolutionary

16

17 18

note 12, at 690. However, see also Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 185 (Apr. 11), where the Court affirmed that there was no priority between the State’s right of diplomatic protection and the organization’s right of functional protection: “In such a case, there is no rule of law which assigns priority to one or to the other, or which compels either the State or the Organization from bringing an international claim” (emphasis added). Cf. also the dispositif, id. at 188. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 263, at para. 97; id. at 266, at para. 105E (July 8); see also id. at 247, at para. 52. G.A. Res. 171 (II) (Nov. 14, 1947).

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

aspect of the law which it administers” and “it has gone a long way to remove lacunae and to clear up obscurities and doubts.”19 Just to take some striking examples: – There can be no doubt that, in some of its most (rightly) celebrated Judgments, like the Mavrommatis20 or the Chorzów Factory21 cases, the PCIJ has gone further than simply consolidating the pre-existing law of State responsibility resulting from the “Latin-American arbitrations” of the nineteenth century and the first part of the twentieth century,22 which it also contributed to make more precise and more responsive to the contemporary needs of the international society of its time. – Similarly, the elucidation by the ICJ of the international personality of the UN and, more generally, of international organisations in the Reparation Advisory Opinion,23 certainly went further than a pure application of existing rules and greatly contributed to the development of international law. I would go as far as asserting that, in so doing, the Court has put an (happy) end to the traditional restricted conception of international law as a purely inter-states system. – Even more striking is the Court’s reshaping of the law applicable to reservations to treaties.24 Its famous 1951 Advisory Opinion on Reservations to the Genocide Convention clearly breaks away from the traditional rules of unanimous acceptance of reservations and substitutes a new “flexible” rule25—on the fragile basis of a disputable “precedent” at the Pan-American level. In a purely abstract perspective, Judges Guerrero, Sir Arnold McNair, Read and Hsu Mo were probably right in their well-known joint Dissenting Opinion26 to warn that “[t]he Court is not asked to state which is in its opinion the best system for regulating the making of reservations to multilateral conventions”27 and their criticism of the Court’s innovative solution could be persuasive if appreciated in the perspective of the “positive” (existing) law then in force. However, the majority was certainly much more in sync with the situation and needs of the modern world (divided in 19 20 21 22

23 24

25 26 27

Judge Nagendra Singh, Codification and Progressive Development of International Law: The Role of the International Court of Justice, 18 Indian J. Int’l L. 1, 8 (1978). See, e.g., Mavrommatis Palestine Concessions, 1924 P.C.I.J. (Ser. A) No. 2, at 12 (Aug. 24). See, e.g., Factory at Chorzow (Merits), 1928 P.C.I.J. (Ser. A) No. 17, at 29 or 47 (Sept. 13). See Alain Pellet, La codification du droit de la responsabilité internationale: Tâtonnements et affrontements, in The International Legal System in Quest of Equity and Universality, Liber Amicorum Georges Abi-Saab 285, 286, 287-88 (Laurence Boisson de Chazournes & Vera Gowlland-Debbas eds., 2001). Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 179 (Apr. 11). See Alain Pellet, La C.I.J. et les réserves aux traités - Remarques cursives sur une révolution jurisprudentielle, in Liber Amicorum Judge Shigeru Oda 481-514 (Nisuke Ando et al. eds., 2002). 1951 I.C.J. 15, 23-26 (May 28). 1951 I.C.J. 31, 38-51 (May 28) (dissenting opinion of Judges Guerrero, Sir Arnold McNair, Read and Hsu Mo). Id. at 31.

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many sovereign states with deeply divergent policies). In spite of the rear-guard action of the ILC until 1962,28 the principle accepted by the Court in 1951 was finally incorporated in Article 19 of the 1969 Vienna Convention on the Law of Treaties. But it is probably in the field of the law of the sea that the Court’s contribution to the progressive development of international law has been the deepest29—if not the most convincing. A first example of the ICJ’s quasi-normative role in this field is given by its acceptance of straight base-lines in its Judgment of 18 December 1951 in the Fisheries case between the United Kingdom and Norway,30 a method which was then recognized in Article 4 of the 1958 Geneva Convention on the Territorial Sea, then in Article 7 of the 1982 United Nations Convention on the Law of the Sea (UNCOS).31 The influence of the ICJ has been even more spectacular in respect to the delimitation of the continental shelf (and consequentially of the exclusive economic zones) between states with opposite or adjacent coasts since the Court literally “invented,” in its 1969 Judgment in the North Sea Continental Shelf case, the most unfortunate principle according to which such “delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles.”32

Transposed to Articles 74(1) and 83(1) of the UNCLOS, this principle proved in practice to be highly debatable in that it jeopardized the predictability of the delimitation to be decided and offered insufficient basis for negotiated solutions. But, by trial and error, the Court itself found a convincing remedy to the disorder it had initiated by 28

29

30 31

32

Sir Humphrey Waldock came around to the Court’s solution in his First Report on the Law of Treaties, reprinted in [1962] 2 Y.B. Int’l L. Comm’n 59-68. His predecessors had opted for the maintenance of the “unanimity rule” (see Hersch Lauterpacht—who, nevertheless proposed alternatives de lege ferenda, First Report on the Law of Treaties, reprinted in [1953] 2 Y.B. Int’l L. Comm’n 90-136; Second Report, reprinted in [1954] 2 Y.B. Int’l L. Comm’n 131-33; Sir Gerald Fitzmaurice, First Report, reprinted in [1956] 2 Y.B. Int’l L. Comm’n 115, 125-27). See José Maria Ruda, supra note 5, at 58 (1991): “The Court’s judgments regarding the law of the sea have been important and influential … Furthermore, the Court’s consideration of the recent evolution of customary law has substantially modified this branch of public international law” (emphasis added); this remark is all the more notable given that the eminent author in principle denies the possibility for the Court to establish new rules of international law (see supra, note 5). 1951 I.C.J. 116, 129-30 (Dec. 18). In their comment on the Eritrea-Yemen Arbitration (Award, Phase II: Maritime Delimitation), Bernard H. Oxman and W. Michael Reisman complained that the ICJ ignored “exorbitant straight baselines [claims] in cases before” it, thus depriving “the straight baseline regime of judicial controls”; but they added that, “the Tribunal, to its credit, assumed a more active judicial role and has enriched the jurisprudence of straight baselines in a number of ways.” 94 Am. J. Int’l L. 721, 732 (2000). North Sea Continental Shelf (F.R.G./Den.; F.R.G./Neth.), 1969 I.C.J. 3, 46-47 (Feb. 20).

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

progressively reintroducing some elements of certainty and predictability. In its Judgment of February 3, 2009, in the case concerning Delimitation in the Black Sea, the ICJ explained: When called upon to delimit the continental shelf or exclusive economic zones, or to draw a single delimitation line, the Court proceeds in defined stages. These separate stages, broadly explained in the case concerning Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, I.C.J. Reports 1985, p. 46, para. 60), have in recent decades been specified with precision. First, the Court will establish a provisional delimitation line, using methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place. … . In keeping with its settled jurisprudence on maritime delimitation, the first stage of the Court’s approach is to establish the provisional equidistance line. … . The course of the final line should result in an equitable solution (Articles 74 and 83 of UNCLOS). Therefore, the Court will at the next, second stage consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 441, para. 288). … This is the second part of the delimitation exercise to which the Court will turn, having first established the provisional equidistance line. Finally, and at a third stage, the Court will verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) does not, as it stands, lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line … A final check for an equitable outcome entails a confirmation that no great disproportionality of maritime areas is evident by comparison to the ratio of coastal lengths.33

It can be securely affirmed that the passages quoted above reflect the law in force in respect of maritime delimitation and a State which would neglect these guidelines when arguing its case not only before the ICJ, but in front of any international tribunal,34 would be most imprudent. This is the law in spite of its purely praetorian origin. This is a welcomed and balanced solution, which combines rather harmoniously the demands for predictability (equidistance) on the one hand and for flexibility (relevant/special circumstances) on the other hand, together with the preservation of the general principle embodied in the UNCLOS (requirement of an “equitable result” 33 34

Delimitation in the Black Sea (Rom. v. Ukr.), paras. 115-122 (Feb. 3, 2009), available at http://www.icj-cij.org/docket/files/132/14987.pdf. Several recent arbitral awards in this field strictly follow the ICJ three stages approach. See, e.g., Barbados v. Trinidad and Tobago, paras. 242-44 and 284 (Perm. Ct. Arb. Apr. 11, 2006), 45 I.L.M. 800, 839, 847 (2006); Guyana/Suriname, paras. 335-342 (UN Law of the Sea Annex VII Arb. Trib. Sept. 17, 2007).

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reflected, for example,35 in the “non-disproportionality test”). And the process followed to reach this result is quite exemplary of a reasonable approach by the Court of its role in the progressive development of international law: – In a first stage, in its 1969 Judgment in the North Sea Continental Shelf cases, where “the ICJ laid the groundwork for the modern international law of maritime-boundary delimitation,”36 the Court noted that, while the equidistance rule did not constitute a customary norm, “in the present case it is not the fact either that rules are lacking, or that the situation is one for the unfettered appreciation of the Parties.”37 Consequently, the Court had to endeavour to find some kind of rules enabling it “to decide in accordance with international law” the dispute which the Parties had submitted to it in those given case. And it thought to find them in a rather complex set of considerations, the core one being that “the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied”38 since “[i]t emerges from the history of the development of the legal regime of the continental shelf … that that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles.”39 – Artificial as this reasoning could have been, this new (or newly “found” or formulated) principle was well received—maybe because of its insignificance—by a number of states, which hasten to try to have it formalized in the UNCLOS; but this was still too much for the Law of Sea Conference, which watered the principle down even more, since, instead of mentioning “equitable principles” (as both the Truman Declaration and the Court’s Judgment of 1969 had done), Articles 74(1) and 83(1) of the UNCLOS only impose on states “to achieve an equitable solution” for the delimitation of the exclusive economic zone as well as of the continental shelf. As Judge Gros rightly stressed, “It is difficult to discern any rule in such a formula: to say that due application of international law should give rise to an equitable result is a truism. Necessity for an agreement between the States concerned, application of international law, equity—yes, but by what means?”40

35

36 37 38 39

40

During the second stage of the process “the adjustment or shifting of the provisional equidistance line” also aims at achieving “an equitable result” Delimitation in the Black Sea, supra note 33, para. 120. Oxman & Reisman, supra note 31, at 731. North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 46, para. 83 (Feb. 20). Id. at 47, para. 85(b). Id. at 46, para. 85. The Court prevailed itself in particular of the 1945 Truman Declaration on the Continental Shelf which provided for the recourse to agreements concluded “in accordance with equitable principles.” Id. at 32-33, para. 47. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 246, 365, para. 8 (Oct. 12) (dissenting opinion of Judge Gros); see also Continental

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

–

“Because the Third Law of the Sea Conference did not establish a precise legislative standard regime for delimiting exclusive economic zones and continental shelves, the development of this very important sector of international law continues to be preeminently an international judicial responsibility … .”41 As the Chamber of the Court noted in the case concerning the Gulf of Maine, “[a] lthough the text [of Articles 74 and 83 of the UNCLOS] is singularly concise it serves to open the door to continuation of the development effected in this field by international case law”42—a development that the Court realized in several stages which finally arrived to the balanced approach described in Romania v. Ukraine,43 which largely remedies the non-operational character of the relevant treaty law as well as of the ineffective customary principles that its 1969 Judgment had greatly contributed to manufacture; but, as Oxman and Reisman have aptly noted, “[i]n a variety of experiments since then, the Court has adjusted, or subtly reduced the effect of, some of the factors it had incorporated into its original decision calculus.”44 At the end of the process, a legal framework governing the methods of delimitation45 that Prosper Weil advocated in his superb book on The Law of Maritime Delimitation46 has been judicially manufactured and, now, fully answers the needs of the international community.

After receiving the Draft Statute of the PCIJ in 1920, Balfour declared that “the decisions of the Permanent Court cannot but have the effect of gradually moulding and modifying international law.”47 This prediction has, without any doubt, become reality, at least in certain fields of general international law on the development of which

41 42

43 44 45 46 47

Shelf (Tunis. v. Libya), 1982 I.C.J. 18, 246, para. 143 (Feb. 24) (dissenting opinion of Judge Oda). Oxman & Reisman, supra note 31, at 731-32. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 246, 294, para. 95 (Oct. 12). Curiously, in that case the Chamber made a distinction between the principles of delimitation (which could be the object of customary principles) and practical methods for determining the boundary (which could not—id. at 290, para. 81). As noted by Robin Churchill and Vaughan Lowe, “[t]his distinction has not been pursued by either the Court or the tribunals in later cases.” Robin Churchill & Vaughan Lowe, The Law of the Sea 185 n.5 (3d ed. 1999). On the contrary, the Court mainly developed rules defining the methods of delimitation. See supra note 33. Oxman & Reisman, supra note 31, at 731. “juridicisation des méthodes de délimitation” Prosper Weil, Perspectives du Droit de la Délimitation Maritime 198-200 (1988). Prosper Weil, The Law of Maritime Delimitation: Reflections (Maureen MacGlashan trans., 1989). League of Nations, Documents Concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption of the Assembly of the Statute of the Permanent Court 38 (1921); cf. Mohamed Shahabuddeen, Precedent in the World Court 78 (2007).

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the Court has had an important, sometimes decisive, influence. Although limited by the scarcity of cases brought to the Court, its influence on the evolution of international law has been all the more efficient and successful that it has carefully confined itself to progressively developing existing principles and rules without ever legislating de novo. II. Distinguishing between Progressive Development and Legislation It is important to note that, at each stage of this complex process, the Court tried— more or less convincingly—to keep the balance between the necessity to decide the case before it, even when it was rather obvious that no clear legal rule applied, and its concern not to “legislate” ex novo. Thus, in its seminal 1969 Judgment, it took great care to explain that “it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles.”48 More generally, the Court has constantly recalled that “[a]s is implied by the opening phrase of Article 38, paragraph 1, of its Statute, the Court is not a legislative body. Its duty is to apply the law as it finds it, not to make it”49 and that “it states the existing law and does not legislate.”50 In the same vein, the ICJ declared that “[i]t is the duty of the Court to interpret the Treaties, not to revise them.”51 But, indeed, the margin between progressive development on the one hand and legislation on the other hand is narrow. So narrow that it could happen that what I call “progressive development” in a particular case could be considered as an abusive exercise in legislation by others (for example Michael Reisman) or reciprocally. All depends on our respective views of whether the decision reasonably aims at “‘supplementing and policing’ the application of inherited law supplement,”52 or unreasonably engages in a legislative exercise which would “inescapably take on a shabby character, 48 49 50

51

52

North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 47, para. 85 (Feb. 20). South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase, 1966 I.C.J. 6, 48, para. 89 (July 18). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 237, para. 18 (July 8); see also id. at 293, para. 14 (separate opinion of Judge Guillaume); id. at 372-73, para. 53 (dissenting opinion of Judge Oda); Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, 1950 I.C.J. 221, 244 (July 18) (dissenting opinion of Judge Read); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, 72, para. 4 (June 27) (separate opinion of Vice-President Ammoun). See also the warnings in H. Thirlway, Reflections on Lex Ferenda, 32 Neth. Y.B. Int’l L. 3 (2001). Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, 1950 I.C.J. 221, 229 (July 18) (also quoted in Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), 1952 I.C.J. 176, 198 (Aug. 27), and in South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase, 1966 I.C.J. 6, 48, para. 91 (July 18)). Reisman, supra note 4, at 66.

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

involving legal tricks, gimmicks, and gambits, and forced interpretations …” requiring “subterfuge and misstatement” in Michael Reisman’s harsh words.53 Since nothing is more subjective and personal than reasonableness, I would suggest that you will name “legislation” a legal reasoning you disapprove of but you will call that same reasoning “progressive development” when you favor it. When we are confronted with a rule applied by the Court (or any other tribunal), the basis of which is uncertain, the real question is: when is legal development “progressive”? When does it amount to legislation? There is certainly no clear, indisputable threshold; and there is nothing strange in that: law in general, and international law in particular, is not a “hard” science; it is an “art,” ars juris.54 This being said, there must be some criterion or, at least, some clue which could help distinguishing between abusive legislation on the one hand and sensible progressive development on the other hand—even if subjectivity cannot be entirely neutralized. But this also confirms that adjudicating implies at least some moral courage, a courage which should go as far, in extreme cases, as abandoning obsolete rules and substituting new rules based on a more realistic assessment of the circumstances—and this, I would think could be accepted by Michael Reisman, who praised Judge Florentino Feliciano for believing “that the judge may, in some circumstances, be obliged to postulate values for the community and apply them even if they are inconsistent with the other more conventional sources.”55 In a way the issue of the distinction between (i) stricto sensu codification, (ii) progressive development of international law, and (iii) legislation de novo arises in a similar way before the ILC.56 For sure, there are important differences. As rightly underlined by Michael Reisman, “[a]s for the International Law Commission, which has an explicit ‘progressive development’ competence, it can engage in this only ad referendum, with the ultimate decision in the hands of the General Assembly or an international diplomatic conference, both explicitly political institutions. Could a court—indeed, any court—render judgments ad referendum?”57—and the obvious answer to the last question must be in the negative. However, things are not as cutand-dried as it seems. There are, of course, obvious differences between the explicit mandate of the ILC to progressively develop international law and the implicit need to do so for the World Court, randomly, if and when it has to complement, supplement or adapt existing rules in a particular case for which no “ready-made” legal rule is available. 53 54

55

56 57

Id. at 66-67; see also Reisman, supra note 3, at 64. See Alain Pellet, Keynote Address, Responding to New Needs through Codification and Progressive Development, in Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in International Legislative Process 16 (Vera Gowlland-Debbas ed., 2000). W. Michael Reisman, A Judge’s Judge: Justice Florentino P. Feliciano’s Philosophy of the Judicial Function, in Law in the Service of Human Dignity—Essays in Honour of Florentino Feliciano 3, 10 (Steve Charnovitz et al. eds., 2005). See supra text accompanying notes 6-9. Reisman, supra note 3, at 63.

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However, as shown in the first part of this paper, denying to the World Court the possibility to have recourse to the progressive development of international law in such cases would amount to impeding it to properly perform its primary function which is to decide disputes submitted to it in accordance with international law. It is also certainly true that the formal process of “progressive development/codification” through the ILC vastly differs from the more mysterious and empirical alchemy which leads the Court to “discover” a rule before applying it in a concrete case. However, in a way, finding a customary rule is not that much different for one or the other body—and, in both cases, such an operation requires the same skill, a recourse to the same technical means and analytical tools, a similar combination of the practice observed with the opinio juris attributed to the international community (of states?), although the Court has a marked tendency to assert the existence of a customary rule more than to prove it; in this respect, the ILC work is probably more careful.58 Only the “product” differs. The ILC elaborates Draft Articles supposedly covering a topic in its entirety; most of these Drafts are expected to become international conventions and such a transformation is subject to the political appreciation of states in the framework of the General Assembly of the United Nations—and this is the “referendum” alluded to by Michael Reisman. For its part, the Court finds the customary rules applicable to a particular dispute on a case by case basis; only the Judgment resulting from the application of the rules in question will be binding, and only between the Parties.59 But even in this respect, the difference between both processes must not be exaggerated. First, exactly as there is no clear-cut distinction between codification in the strict sense on the one hand and progressive development on the other hand,60 it is virtually impossible to objectively determine whether a particular rule applied by the World Court is customary or results from a progressive development: in all cases the Court will take great care to present it as being customary if only to avoid being blamed for legislating. As noted by Judge Shahabuddeen with his usual perceptiveness, “[i]dentification of instances of judicial law-making is complicated by the fact that the Court itself, like all courts but perhaps more so in view of the fact that it is adjudicating between sovereign States, takes care to avoid expressions suggestive of judicial law-making; it prefers the use of terms indicating that all that is involved is a working out of the true meaning of existing legal principles, as, indeed, is broadly true.”61 But, as seen above, when going from general principles to precise rules applicable to a particular case, this often appears as purely cosmetic defence: clearly the “object and purpose” as the main criterion for the validity of reservations to treaties

58 59 60 61

See Pellet, supra note 12, at 749-62. Cf. I.C.J. Statute art. 59. See supra text accompanying notes 6-9. Shahabuddeen, supra note 47, at 90; see also Sir Hersch Lauterpacht, The Development of International Law by the International Court 368 (1958) (“Many an act of judicial legislation may in fact be accomplished under the guise of the ascertainment of customary international law.”).

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

did not pre-exist the 1951 Advisory Opinion;62 nor did the “straight baselines” system pre-exist the Court’s Judgment in the Anglo-Norwegian Fisheries case.63 But, certainly, there are limits. In particular, while a legislator may change the law at good will, being only restrained by a few rules of higher hierarchical status (the Constitution in domestic law; international jus cogens at the international level), a “progressive developer” must stay within the general existing legal framework. In this respect, what I tried to explain in relation with the ILC function to progressively develop international law, probably holds also true for the ICJ: “it is our duty to try to understand the logic of existing rules and to develop them in the framework of this logic, not to change the underlying logic. It’s our duty to keep our ears and our eyes and our mind open to the changes in the law of nations and to take note of new trends, not to invent them and certainly even less to impose them.”64 As Michael Reisman recalled: “Cessat ratio, cessat ipse lex.”65 This probably is the difference between “lawyers’ law” and “politicians’ law”: politicians can change the reasons for law; when progressively developing existing law, lawyers cannot. Second, not more than an ILC Draft will stand by its own as a binding set of rules, the simple fact that the Court relies on a particular rule to decide a dispute will confer it the “status” of a generally binding norm. In both cases, the authoritativeness of the respective findings of both bodies will depend on a multiplicity of factors. The care with which the existence and scope of the rule in question will have been established—which in turn depends, in the ILC, on the reliability of the Special Rapporteur’s work and of the ensuing debates in the Commission, and, in the ICJ, on the seriousness of the Parties’ pleadings and of the Court’s reasoning—is fundamental. But maybe even more important: the responsiveness of the “proposed” rule to the needs of the international community at the time of its codification or “development.” The ICJ Judgment is no more the ultimate stage in the World Court law-making process than the ILC Draft Articles constitute the end of the progressive development/codification of international law by the ILC. Both are only milestones in a more complex process. In this (important) respect, both processes are less remote from each other than it could seem at first glance, in that the “final outcome” (Draft Articles or Draft Guidelines for the ILC; Judgment or Advisory Opinion for the ICJ) of either organs is not the ultimate stage in the law-making process in which they take part—sometimes together. Once available on the play-ground of the law-making process this outcome will be tested against the needs of the international society. Exactly like the binding nature of the ILC Draft, that of the ICJ-made law is subject to some kind of “referendum”—but a different kind. The ILC process is based on a constant back and forth between the experts level (Commission) and the political instance (General Assembly) which, at least formally,

62 63 64 65

See supra text accompanying notes 24-28. See supra text accompanying notes 29-32. See Pellet, supra note 54, at 16. W. Michael Reisman, Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions, 35 Vand. J. Transnat’l L. 745 (2002).

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1078

has the last word since it belongs to the General Assembly to decide the final step.66 However, this is only the tip of the iceberg. In reality the ILC Drafts will play a role by themselves. As explained in an introduction to “The Achievement of the International Law Commission” by the Codification Division of the United Nations, the contribution of the ILC to international law-making goes beyond the transformation of some of its Drafts (the majority of them) “into major global treaties within the fields to which they relate,” some of which “have assumed a structural or foundational position” within their respective domains;67 the Commission has also succeeded in integrating itself into the process of custom-formation, including, most strikingly of all, the process for the creation of new rules of customary international law.”68 For its part, the efficiency of the Court’s “law-making” too will depend on various factors and can only be assessed in the long run: not more than “instant custom” exists, can “instantaneous judicial law-making” be accepted. The Court’s Judgments (or Advisory Opinions) are but an (important) step in a much more complex process, starting before the Judgment and extending afterwards. This will have been apparent in several of the examples of progressive development of international law rules given above:69 – the law of State Responsibility has its roots in the pre-existing practice of states and international arbitral tribunals; it was fixed in strikingly coined formulas by the World Court; the ILC drew the consequences from these very general principles in its Articles on The Responsibility of States for Internationally Wrongful Acts, which, in turn were abundantly “applied” by international (and national) tribunals,70 including the ICJ itself;71 – in spite of the reluctance of a majority of the doctrine (including of the ILC for more than ten years), the Court’s views on the (indisputably) new law of reservations to treaties was at the origin of a Copernican change in this most practically important part of the law of treaties; after their endorsement by the ILC first, by 66

67

68

69 70

71

See ILC Statute art. 23(1) (“The Commission may recommend to the General Assembly: (a) To take no action, the report having already been published; (b) To take note of or adopt the report by resolution; (c) To recommend the draft to Members with a view to the conclusion of a convention; (d) To convoke a conference to conclude a convention.”). ILC, International Law on the Eve of the Twenty-First Century—Views from the International Law Commission 1-2 (United Nations Publication, 1997, Sales N° E/F 97.V.4). Id. at 2. The ICJ may play a major role in this process by sanctioning an ILC draft Article as evidencing the contemporaneous state of the law in the relevant field. See id. at 14-17; Pellet, supra note 12, at 757-58, 792. See supra text accompanying notes 18-32. See The Secretary General, Responsibility of States for Internationally Wrongful Acts, Compilation of Decisions of International Courts, Tribunals and Other Bodies, Report of the Secretary-General, U.N. Doc. A/62/62 (Feb. 1, 2007); and Add.1 (Apr. 17, 2007). See, in particular, Gabčíkovo-Nagymaros Project (Hung. v. Slovk.) 1997 I.C.J. 7 (Sept. 25), citing from the ILC Draft adopted on first reading not less than seven times, at 38-42 (paras. 47 and 50-54) and 46 (para. 58).

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

–

the 1968-1969 Vienna Convention, the new rules were included in the Convention on the Law of Treaties—which even aggravated their “relativism”; and similarly, the innovations introduced by the ICJ in the law of the sea could only be consolidated into indisputable legal rules through a convoluted process involving the Third UN Conference on the Law of the Sea and, anew, the Court itself which, in the absence of agreed practical methods of delimitation, had to manufacture new rules in order to fill in the gaps in the treaty law.

It can also happen that the Court, instead of progressively developing international law, makes its best—unfortunately sometimes with some success—to impede or, at least, to slow down the process. An example of such a rear-guard fight—fortunately a lost fight at the end of the day—is given by the Court’s odd attitude towards the notions of jus cogens and erga omnes obligations. Although sometimes accepting that “elementary considerations of humanity” could be taken into consideration as part of the applicable law72 or applying “intransgressible principles of international customary law,”73 it was not before 2006 that the ICJ explicitly took up the expression “peremptory norms of general international law (jus cogens)” and accepted that the norm prohibiting genocide was assuredly “a norm having such a character.”74 Whatever the reasons for this long defiance,75 it created a serious confusion since in guise of jus cogens the Court had recourse to the neighbouring—but distinct—notion of obligations erga omnes. This was in particular the case when the Court, eager to dissipate the disastrous impression created by its 1966 Judgment in the South-West Africa case paid lip service to the newly formalized concept of jus cogens,76 included its famous dictum in its 1970 Judgment in the Barcelona Traction case: 72

73

74

75

76

See, e.g., Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9); see also Reservation to Convention on Prevention and Punishment of Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15, 23 (May 28); Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 112-14 (June 27). Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257, at para. 79 (July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 199, at para. 157 (July 9). Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 6, 31-32, at para. 64 (Feb. 3); see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. and Herz. v. Serb. and Mont.), at para. 161 (Feb. 26, 2007), available at http://www.icj-cij.org/ docket/files/91/13685.pdf. It is difficult to help to see in that defiance the imprint of some influential Judges hostile to the very concept of jus cogens and to note that the belated use of this expression coincided with President Guillaume’s resignation. The French Judges who had sat on the Bench before him were as hostile to this concept as he was (and still is—see, e.g., Gilbert Guillaume, Jus cogens et souveraineté, in L’État souverain dans le monde d’aujourd’hui—Mélanges en l’honneur de Jean-Pierre Puissochet 127-36 (2008). In Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties.

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… an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character.77

1080

The confusion thus created was most unfortunate and it is far from sure that it is completely dissipated with the Court belated rallying both the concept and the expression of “peremptory norms (jus cogens).” However, the partial “happy end” of this regrettable story shows that the World Court itself cannot stop the progress of international law when the external constraints are too strong—and, in the case of jus cogens, it was apparent that the notion was in keeping with the demands for a minimum degree of integration of the international community. In a relatively proximate field, the ICJ’s Judgment in Arrest Warrant Case shows that the Court can also slow down and maybe go as far as durably jeopardizing highly desirable evolutions in the law in force. Adopting an interpretation cautious to the excess of the trends in favour of the absence of criminal immunities of political leaders for the most odious international crimes, the Court, by a most conservative interpretation of the recent state practice, has clearly endeavoured to stop this promising process: The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suggested of having committed war crimes or crimes against humanity.78

77

78

Barcelona Traction, Light and Power Company Limited (Belg. v. Spain), Preliminary Objections, 1964 I.C.J. 3, 32, at paras. 33-34 (July 24). The examples given by the Court can leave no doubt that it was, in fact, dealing with peremptory norms. See also East Timor (Port. v. Austl.) 1995 I.C.J. 90, 102, at para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 199, at paras. 155-157 (July 9). Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.) 2002 I.C.J. 3, 24, at para. 58 (Feb. 14). For strong criticisms of this most conservative approach, see id. at 98, at para. 7 (dissenting opinion of Judge Al-Khasawneh); id. at 151, para. 23 (dissenting opinion of

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

The same could be said of the Court’s reading of the abundant contemporary practice concerning the diplomatic protection of shareholders in the Diallo case: The Court, having carefully examined State practice and decisions of international courts and tribunals in respect of diplomatic protection of associés and shareholders, is of the opinion that these do not reveal—at least at the present time—an exception in customary international law allowing for protection by substitution, such as is relied on by Guinea.79

Apparently it would be preferable for the progress of international law that the Court refrains from “carefully examining” the practice … But, at least, in its 2007 Judgment (and contrary to its 2002 “careful examination of the practice”), it took some care to expressly preserve the possibility of an evolution.80 There can be no doubt that when such a stark halt is put to an on going trend, the best way to neutralize the Court “negative law-making” is for the states to adopt a treaty going in the opposite direction. This was what happened, for example, after the PCIJ Judgment in the Lotus case in 1927. It is well known that the most unfortunate motivation of that Judgment gave rise to bitter doctrinal debates81 which have somehow concealed the more concrete issue concerning the criminal jurisdiction of states in case of collision in the high seas. In this respect, the Court concluded that “[t]he conclusion at which the Court has therefore arrived is that there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown.”82 While not a non-liquet properly said, since the Court deduced from this first conclusion that “[i]t is therefore a case of concurrent jurisdiction,”83 this was not a very welcomed solution from practical or political points of view. Therefore, Article 1 of the 1952 Brussels Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or other Incidents of Navigation decided that: In the event of a collision or any other incident of navigation concerning a sea-going ship and involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before

79 80 81

82 83

Judge ad hoc Van Den Wyngaert). For a less critical approach, see id. at 87-88 at paras. 80-85 (joint separate opinion of Judges Higgins, Kooijmans and Buergenthal). Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections, at para. 89 (May 24, 2007), available at http://www.icj-cij.org/docket/files/103/13856.pdf. By stressing that its finding is only valid “at the present time.” See Alain Pellet, Lotus que de sottises on profère en ton nom! Remarques sur le concept de souveraineté dans la jurisprudence de la Cour mondiale, in L’État souverain dans le monde d’aujourd’hui—Mélanges en l’honneur de Jean-Pierre Puissochet 21530 (2008). 1927 P.C.I.J. (ser. A) No. 10, at 30 (Sept. 7). Id. at 31.

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the judicial or administrative authorities of the State of which the ship was flying the flag at the time of the collision or other incident of navigation.84

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In that case, the “referendum” was negative and the Court’s try was not scored. In his tribute to Judge Oda, Michael Reisman wrote that “[i]n domestic courts, and certainly in the United States, contingent lawmaking competences are accepted as legitimate, if not mandatory, functions of the courts concerned; the quality of the work of the courts engaged in this function is, in large part, judged by the quality of its legislative creativity. However, these various courts operate in domestic political contexts in which this contingent judicial lawmaking is accepted.”85 While this view does not square with the continental tradition where courts and tribunals are supposed86 to be “the mouth that pronounces the words of the law,”87 it comes as a surprise that, by contrast, the learned author does not accept that international judicial bodies and, in the first place, the ICJ, enjoy a measure of “legislative creativity.” With respect, such a (reasonable) law-making power is, on the contrary, particularly indispensable in a highly decentralized society as is the international society,88 where the competence to make the law is shared between a great number of actors— mainly the more than 190 existing sovereign states, but also in a lesser measure, international governmental and non-governmental organisations, and, more generally, private actors.89 In such a society, the adjustment of the law to new needs is highly uncertain and could be made impossible for a very long time, during which the uncertainties of the inappropriate legal rules or the challenges directed against them could be at the origin of serious inter-states disputes. It is in these kinds of situations that an adaptation of the law to the new needs—or a clear supplement to existing too wide principles—by an international court or tribunal can be most effective and appropriate. And this does not go without some paradox. The international society is no longer a society without a judge (as it used to be); however, it remains that “[i]n the international field, the existence of obligations that cannot in the last resort be enforced by

84 85 86 87

88 89

May 10, 1952, 439 U.N.T.S. 233, 235. Reisman, supra note 3, at 63. From the point of view of the present writer, this supposition is widely fictitious. « La bouche qui prononce les paroles de la loi » Montesquieu, De l’esprit des lois, livre XI, chap. VI, para. 49—translated in Charles de Secondat Montesquieu, The Spirit of the Laws 163 (Anne M. Cohler et al. eds., Cambridge Univ. Press 1989). W. Michael Reisman, Assessing Claims to Revise the Laws of War, 97 Am. J. Int’l L. 82 (2003); see also Reisman, supra note 2, passim. “As the, so-called, ‘New Haven School of International Law’ argues, the process of international lawmaking involves the pressures by representatives of various interest groups and participants in the decision making process.” Jonathan I. Charney, International Lawmaking—Article 38 of the ICJ Statute Reconsidered, in New Trends in International Lawmaking—International ‘Legislation’ in the Public Interest 171 n.2 (Jost Delbrück ed., 1997).

51 Alain Pellet, Shaping the Future of International Law: The Role of the World Court in Law-Making

any legal process, has always been the rule rather than the exception.”90 As a result, law-making by the ICJ is highly chancy and uncertain; it will only be possible on a consensual basis and nothing can guarantee that it will be in a position to usefully exercise its secondary—but important—function of progressively developing international law when needs be. However, this inconvenience must not be exaggerated: this law-making role is only necessary when a dispute arises between states as to the existence, the scope or the content of a rule and, in conformity with Article 38(1) of its Statute, the Court is available to decide on such disputes. Moreover, even though the Court’s dicta and findings as to the content of the legal rules it applies are but a milestone in international law-making, the very scarcity of its Judgments or Advisory Opinions make them exceptionally authoritative. As a result, whatever legal theories and doctrinal objections, the World Court probably is the best and most efficient organ capable of adapting legal rules to the evolving needs of the international community. Let me just express the hope that it does it less shyly in the future than it has done all these past years, and thus revive the traditional uninhibited approach of the PCIJ and of the pre-1970s present Court.

90

South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase, 1966 I.C.J. 6, 46, para. 86 (July 18).

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Chapter 52 Gorbachev Embraces Compulsory Jurisdiction Stephen M. Schwebel

W. Michael Reisman is unsurpassed among living international lawyers. His intelligence is acute; his legal imagination, fertile; he writes with insight, force, and flair; he speaks easily, logically, and convincingly; and the scale, variety, quality, and profundity of the cascade of his publications is extraordinary. His concern with advancing an international law of human dignity, in the tradition of his own teachers, Myres S. McDougal and Harold D. Lasswell, is unflagging. Over the decades he has taught much of the elite of the profession, and his devotion to his students has been returned by their devotion to him. His contributions to the development of international law have not been confined to teaching and scholarship. He is an active and sought-after counselor, expert, and arbitrator. Having sat with him on more than one arbitral tribunal, and having enjoyed hearing his arguments in others, the writer can attest to his quite exceptional authority. It is a privilege to join with his other friends and admirers in contributing to this volume. My topic is a remarkable article by a remarkable man, Mikhail Sergeyevich Gorbachev, the former General Secretary of the Central Committee of the Communist Party of what was, at the time of the article’s publication, the Soviet Union. The Soviet press published Gorbachev’s article on September 17, 1987, and the next day it was circulated as a U.N. document.1 The letter contains a cornucopia of proposals for remaking contemporary international politics and institutions with a view to establishing a comprehensive system of international peace and security. Some of Gorbachev’s ideas strikingly depart from the standard Communist Party line with which the world had by then become wearingly familiar. Others depart from singular sorties of Soviet policy. While years earlier, Nikita Khrushchev, for example, had implausibly proposed replacing the office of U.N. Secretary-General with a “troika,” Gorbachev took a very different position: 1

Mikhail S. Gorbachev, Real’nost’ i garantii bezopasnogo mira [The Reality and Guarantees of a Secure World], Pravda, Sept. 17, 1987, at 1, reprinted in Letter Dated 18 September 1987 from the Deputy Head of the Delegation of the Union of Soviet Socialist Republics to the Forty-Second Session Addressed to the Secretary-General, Annex, U.N. Doc. A/42/574, S/19143 (1987) [hereinafter Gorbachev Letter].

Mahnoush H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman. © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 90 04 17361 3. pp. 1085-1093.

VII Making and Applying Law by International Tribunals

The world community elects to this high office an authoritative figure enjoying universal trust. Since the Secretary-General is the representative of every Member of the Organization, all States must extend to him the fullest support and assist him in the discharge of his responsible mission. The world community must encourage the Secretary-General in his missions of good offices, mediation or conciliation.2

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Regarding the General Assembly, Gorbachev wrote, among other things: “We emphatically stress the need to enhance the morally and politically binding nature of the important policy instruments adopted in the United Nations by consensus. Among these, I may mention … the Charter of Economic Rights and Duties of States … .”3 In fact, the United Nations did not adopt the Charter of Economic Rights and Duties of States by consensus but by a highly contentious vote in which most industrialized democracies voted against the resolution or abstained. As for Gorbachev’s broader point, while some consensual resolutions of the General Assembly may enjoy a certain legal, political, or moral weight, having been carefully negotiated and representing a genuine measure of accord (for example, the Principles of International Law concerning Friendly Relations and Co-operation among States),4 others (such as those of the New International Economic Order) do not even remotely reflect broad agreement and certainly are not regarded as morally or politically, still less legally, binding; indeed, as interpretive statements of some delegations made in the General Assembly at the time of the adoptions of the resolutions demonstrate, some states joining the supposed “consensus” opposed critical elements of the New International Economic Order – and for compelling reasons. Gorbachev stood on firmer ground when he wrote: “As regards potential nuclear piracy, it is possible and, evidently, necessary to evaluate and make preparations for collective action to prevent it.”5 It may be observed, however, that no action, collective or otherwise, was taken to prevent the prolonged and potentially catastrophic activities of the A.Q. Khan nuclear network, even though there are indications that the government most immediately concerned, which could have taken preventive action, was well aware of it.6 “A radical strengthening and expansion of co-operation among States in the eradication of international terrorism is of vital importance.”7 The events of 9/11 would demonstrate how right that call of Gorbachev was.

2 3 4

5 6 7

Id. at 11. Id.; see Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX), U.N. Doc. A/9631 (Dec. 12, 1974). Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, Annex, U.N. GAOR, 25th Sess., Supp. No. 28, at 122, U.N. Doc. A/8028 (1970). Gorbachev Letter, supra note 1, at 5. See Weapons of Mass Destruction Commission, Weapons of Terror 38 (2006). Gorbachev Letter, supra note 1, at 7.

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Stephen M. Schwebel, Gorbachev Embraces Compulsory Jurisdiction

Gorbachev continued: “The Charter of the United Nations gives extensive powers to the Security Council. All that is needed is for us to strive together to ensure that it can use them effectively.”8 While the above policy statements may be regarded as unexceptional, even platitudinous, Gorbachev wrote the following about another principal organ of the United Nations: Nor must we forget the possibilities of the International Court of Justice [ICJ]. The General Assembly and the Security Council could address themselves to it more frequently for advisory opinions on disputed international legal issues. Its binding jurisdiction must be acknowledged by all on mutually agreed terms. The first step in this direction, in the light of their special responsibility, needs to be taken by the permanent members of the Security Council. … We are convinced that the comprehensive system of security is at the same time a system for a universal legal order which will ensure the primacy of international law in politics.9

Comparing the foregoing statements about the ICJ with the historical approach of the Soviet Union to international law in general and to the World Court in particular makes clear that the break with traditional Soviet policy is extraordinary. From its earliest days, as in the Eastern Carelia advisory proceedings in the Permanent Court of International Justice (PCIJ),10 the Soviet Union had manifested distrust of and opposition to the World Court”: In 1922, Maxim Litvinov summed up the view that has long dominated Soviet thinking about dispute settlement … “It was necessary to face the fact,” he had said, “that there was not one world but two – a Soviet world and a non-Soviet world … there was no third world to arbitrate. … Only an angel could be unbiased in judging Russian affairs.”11

The Soviet Union initially held a similar attitude toward the League of Nations, but in the 1930s, it joined the League. Its hostility to the Court, however, did not change and carried over to the United Nations. Consequently, for years, a perennial exercise of U.N. plenipotentiary conferences for concluding treaties flowing from the codification work of the International Law Commission consisted in a Western proposal to provide the ICJ with jurisdiction over disputes arising under those treaties; reflexive and unyielding opposition to that proposal by the Soviet bloc; and then relegation of recourse to the Court to an appended optional protocol giving the Court jurisdiction over such disputes only in respect of those parties that ratified the protocol. The Soviet Union was not among them. 8 9 10 11

Id. at 10. Id. Status of the Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 5, at 28 (July 23). Attributed by Abraham D. Sofaer to Louis B. Sohn, Cases and Materials on World Law 1046 (1950). See infra note 13.

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Gorbachev’s article proposed a reversal of policy. Far from opposing resort to the Court for settlement of disputes arising under treaties of codification, the leader of the Soviet Union advocated greater resort to the Court by the General Assembly and Security Council for advisory opinions. Furthermore, he advocated agreement by all members states to the compulsory jurisdiction of the Court “on mutually agreed terms.” It is unclear whether he meant adherence by states to the optional protocol on mutually agreed terms or whether he contemplated a treaty vesting the World Court with jurisdiction on mutually agreed terms. The diplomatic disposition of Gorbachev’s proposal remains undisclosed. Relevant records of the ensuing negotiations among the permanent members of the Security Council remain unpublished. Published sources do confirm, however, that negotiations took place, and they provide some information on the nature of those negotiations. The Digest of United States Practice in International Law for the year 1989-1990 provides: The legal advisers of the permanent members of the United Nations Security Council met several times during 1989-90 to conduct informal consultations concerning the compulsory jurisdiction of the ICJ. In a joint communiqué following a round of consultations held in Paris on February 12-13, 1990, the five legal advisers declared their goal as finding “ways of providing for more frequent recourse to the International Court of Justice, as part of the development of international law.”12

That source also refers to an address by the former Legal Adviser of the U.S. Department of State, Abraham D. Sofaer, “Adjudication in the International Court of Justice: Progress through Realism,” which he delivered to the Association of the Bar of the City of New York in December 1988.13 The text of that address is revealing. Sofaer said of the Gorbachev statement quoted above that [t]his vague and noncommittal comment would have been entitled to little note, but for its eminent source. We might assume that the statement was intended to exploit the environment created by the termination of our own ICJ declaration, to convey the impression that the Soviets have aligned themselves with the United Nations, the ICJ, and the law. Nonetheless, the statement opened the door for the first time to the possibility that the Soviet Union might join the United States and others in an effort to enhance the authority of international law by collectively using the ICJ.14

As far as it has been possible to establish, the Soviet Union did not advance a concrete proposal to implement the Gorbachev article’s reference to the jurisdiction of the ICJ. Rather, in the periodic meetings of the legal advisers of the permanent mem12 13 14

Id. at 208-09. Abraham D. Sofaer, Adjudication in the International Court of Justice: Progress Through Realism, 44 Rec. Ass’n B. City N.Y. 462 (1989). Id. at 467.

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Stephen M. Schwebel, Gorbachev Embraces Compulsory Jurisdiction

bers of the Security Council, the United States made a proposal for “the manner in which States are presently expected to commit themselves to utilize the Court,” the essence of which Mr. Sofaer summarized in these terms: First, we must seek to secure the broadest possible acceptance of the Court’s mandatory jurisdiction. Instead of pressing as an ideal those declarations that confer unlimited authority on the court, we should focus on attaining at least some degree of commitment from all the major powers. Second, a real effort should be made to ensure that the Court acts only upon the consent of States, and special protection should be provided against the Court’s assuming jurisdiction against the wishes of a party in matters bearing on its national security. Third, every State should automatically have the right to insist that a case in which it appears as a party be heard by a Special Chamber. This measure will enhance confidence in the fairness of all adjudications, and thereby encourage use of the Court. Finally, these measures should be implemented by a binding international agreement … .15

Mr. Sofaer further observed that President Gorbachev correctly identified the importance of acceptance by the Permanent Five. A court in which all the major powers participate is likely to become universally accepted. The law that develops in such a court is far more likely, moreover, to be recognized by all the Member States than a court that omits major powers.16

Mr. Sofaer then laid out the heart of the U.S. approach: To gain widespread acceptance of ICJ jurisdiction will require abandonment, as an ideal, of the model by which States would submit generally to the Court’s jurisdiction, and then add reservations to prevent adjudication in certain areas or on certain issues. This approach has failed to confer an adequate degree of assurance that the Court will interpret limitations or deal with justiciability issues in the manner actually intended. A general submission to the Court’s jurisdiction enables the Court potentially to rule that it has jurisdiction over any issue. To offset the uncertainty created by general submissions to the Court’s jurisdiction, we propose that each party list, as specifically as practicable, the treaties, agreements, or issues over which it confers authority on the Court to adjudicate. This process could begin modestly, with a listing by the Permanent Five of those treaties which have the most universal acceptance. Thereafter, parties could unilaterally list additional treaties subject to the new dispute settlement regime. Where the listed treaties already provide for other dispute settlement procedures, those under the new system would be substituted, as between parties which join. A solid foundation exists upon which to build acceptance of the Court by the world’s major powers in the large body of current multilateral treaties. Treaties give substance to international law, and that substance conveys an assurance to prospective litigants that an 15 16

Id. at 468. Id. at 479.

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agreed law will be applied by judges, rather than a new law which they legislate. The law contained in multilateral conventions should prove particularly attractive to the Soviets because of the traditional emphasis by Soviet international lawyers on treaties as the central component of international law. A second measure to ensure that the Court acts upon the basis of consent is to write into the governing instrument a provision affirmatively excluding issues concerning hostilities, armed conflicts, individual or collective self-defense, or resistance to aggression. Parties could be permitted to agree, however, to extend the new treaty regime to such matters in particular circumstances. The need for this type of special exclusion is less great in a court based on specific grants of jurisdiction than in one based on a grant that is general and potentially applies to all legal issues. Nonetheless, the Court might, in passing on disputes arising under treaties, attempt to issue decisions on matters which are reserved by the U.N. Charter to the Security Council, or which affect the fundamental interests of States. The specific reservation on such issues would protect against such decisions, and would serve to reinforce for the world community the views of the Permanent Members on the relationship of the Court to the Security Council. A third fundamental element must be built into any viable scheme for the Court. This is the right of any party to request a Special Chamber for dealing with a particular case constituted under the Court’s rules. To accomplish this, a clear procedure should be established by which the parties to any case in which at least one side demands a Chamber would jointly recommend to the Court the size and makeup of the Special Chamber sought. If the Chamber were not constituted as requested by the parties, the proceedings would be discontinued, by prior agreement.17

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Mr. Sofaer elaborated at some length on the attractions of resort to special chambers of the Court. He then continued: Our preferred course at this time would be for the States interested in this approach to adopt a convention in which they agree to the elements described above. In this manner they would be mutually bound in any litigation to adhere to those elements. The plan should be recognized by the ICJ as a binding international agreement and, we hope, regarded by the Court as a constructive measure designed to enhance its role. However, if the Court cannot accept some feature of the plan, provision should be made in the convention for binding adjudication in a substitute forum.18

Mr. Sofaer concluded that: The ICJ could potentially play a far greater role than it presently plays in developing and applying international law. Its potential has not been realized, despite developments in international law and adjudication that should have led States to rely more heavily on the Court. This result has occurred, we believe, because the Court’s rules fail to ensure that the ICJ will in fact assume jurisdiction only on the basis of consent; that it will function as a 17 18

Id. at 479-80. Id. at 483.

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court rather than a legislature, applying accepted rules and practices rather than fashioning new law; that it will render decisions that are predictable in that they fall within the range of the reasonable expectations of States; that its rulings will evoke confidence in the Court’s objectivity and political neutrality; and that it will recognize the limits of the judicial role. The expressed willingness of the Soviet Union to utilize the ICJ, and to expand its own reliance on international adjudication, presents a fresh opportunity to fashion a role for the Court that is more meaningful than ever before. If the Soviets decide actually to begin to utilize the ICJ, they will be as determined as the United States to ensure that the Court’s role is limited to areas in which they have in fact consented to adjudication, and under procedures they consider fair.19

While Mr. Sofaer’s speech revealed much of the position of the United States in response to Mr. Gorbachev’s initiative, the positions of the United Kingdom, France, China, and the Soviet Union have not received like public exposure. It is known that Mr. Sofaer had bilateral conversations with his Soviet counterpart in the summer of 1988, in which the United States made proposals of the nature described by Mr. Sofaer. It further appears that the United States and the Soviet Union agreed on a joint working paper, which was shared with the legal advisers of the permanent members of the Security Council. That working paper contemplated agreement to jurisdiction of the ICJ in respect of widely accepted legal principles contained in treaties to which the permanent members were party, and it also provided for recourse to chambers of the Court. Bilateral exchanges also took place between the United States and the United Kingdom. They focused on an instrument to which all permanent members would adhere giving the Court jurisdiction over disputes turning on accepted rules of international law. There would be provision for the Court exercising that jurisdiction through the medium of a Chamber of the Court, but if the Court declined to constitute a Chamber as the parties requested, the case would be removed to another jurisdiction. The Court would not have jurisdiction over disputes involving the use of force and self-defense unless all parties to the dispute agreed that it would. It has not been possible to establish what happened thereafter. It is clear that the proposal of the United States was not adopted by the five permanent members of the Security Council. But why this is so is not so clear. The impression has been given that the United States and the United Kingdom in the end failed to reach agreement. In view of the fact that the United Kingdom alone of the five remains party to the Optional Clause, and that the terms of its adherence do not mirror those proposed by the United States for an agreement among the five permanent members, that is unsurprising. Nor does the United Kingdom appear to share the distrust of the Court that has affected the policy of the United States since the Court’s handling – or mishandling – of the Nicaragua case.20 It is understood that, in the end, the United Kingdom rejected a key element of the approach of the United States (its exclusion 19 20

Id. at 484. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392 (Nov. 26); 1986 I.C.J. 14 (June 27).

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from the contemplated jurisdiction of the Court disputes involving self-defense and the international use of force), and it particularly rejected a self-judging element of that exclusion. It may be that the United Kingdom shared the reasoning of the late Judge Sir Hersch Lauterpacht, as expressed in his judicial opinions, that a self-judging reservation is incompatible with the terms and thrust of Article 36, paragraph 6, of the Statute of the Court providing that, “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”21 The precise positions of France and China in response to the proposals in question are not known, but it appears that they were prone to shelter themselves behind the objections of the United Kingdom. They did not endorse those objections, but the making of them had the effect of blocking further consideration and negotiation of the U.S. proposals. There is little reason to believe that either France or China in the end would have been disposed to adhere to the Court’s compulsory jurisdiction, even in the restrictive terms contemplated by the United States. France did indicate that it might be prepared to adhere provided that the Court would not have jurisdiction over matters that bore upon France’s “ordre public.” All this said, one is left with a sense of a missed opportunity. Gorbachev’s internationalist disposition and ideas had never before been seen in the Soviet Union. They did not survive his fall and the dissolution of the Soviet Union. There are traces of Gorbachev’s approach, however, most notably in the fact that, in the case brought by Georgia against Russia in 2008, the Court was able to find a basis of jurisdiction in a multilateral treaty that the Soviet Union had ratified in 1989 and to which Russia succeeded, the International Convention on the Elimination of All Forms of Racial Discrimination.22 Not only was Gorbachev’s proposal unique to his transient but earthshaking tenure; it also came at a time when the United States, ambivalent about adherence to the Court since 1920, and reserved in its profoundly qualified acceptance of the Court’s compulsory jurisdiction since 1946, was in a state of shocked defiance at the Court’s findings of jurisdiction in Nicaragua.23 The Court found that it had jurisdiction under the Optional Clause of the ICJ Statute even though Nicaragua had never deposited its instrument of ratification for the PCIJ’s Statute. Nicaragua’s Declaration made under Article 36 of the PCIJ Statute had therefore never entered into force, but the Court nevertheless found it to be “still in force” under Article 36(6) of its Statute. The Court further found that it had jurisdiction under the compromissory clause of the Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. It did so despite the fact that Nicaragua had not discharged the procedural prerequisites for invocation of that clause and despite the fact that the Treaty was a purely commercial one that did not concern Nicaragua’s claims to be the victim of direct and indirect acts of aggression. It also did so despite it having been shown that, 21 22 23

Statute of the International Court of Justice art. 36(6), 33 U.N.T.S. 993, 59 Stat. 1055 (1945). International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, G.A. Res. 2106 (XX), 660 U.N.T.S. 195. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392 (Nov. 26); 1986 I.C.J. 14 (June 27).

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in concluding the Treaty, it was the intention of the United States to treat matters of military security as outside the Treaty’s scope. The Court topped its expansive jurisdictional holdings off by nevertheless denying El Salvador’s request to intervene at the jurisdictional stage of the proceedings under Article 63 of the Statute of the Court, pursuant to which El Salvador had “the right to intervene in the proceedings.” It compounded that questionable interpretation of Article 63 by failing to accord El Salvador a hearing on its application to intervene despite the provision of Article 84 of its Rules that, if an objection is filed to the admissibility of a declaration of intervention, “the Court shall hear the State seeking to intervene and the parties before deciding.” The cumulative impact of these profoundly contentious jurisdictional holdings of the Court on the readiness of the United States to take part in the merits stage of the Nicaragua case, and, later, on the receptiveness of the United States to proposals respecting the Court’s jurisdiction, was understandable. Had Gorbachev’s proposals come at a more propitious time, perhaps more would have come of them.

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Contributors and Editors

Adeno Addis is the W. Ray Forrester Professor of Public and Constitutional Law at the Tulane University School of Law. Guillermo Aguilar Alvarez is a Partner at Weil, Gotshal & Manges LLP and a Visiting Lecturer in Law at the Yale Law School. José E. Alvarez is Herbert and Rose Rubin Professor of International Law at the New York University School of Law. Nisuke Ando is Director of the Kyoto Human Rights Research Institute. He served as a member for twenty years (1987-2006; Chairperson 1993-94) of the Human Rights Committee established under the International Covenant on Civil and Political Rights. Mahnoush H. Arsanjani is the former Director of the Codification Division, Office of Legal Affairs, United Nations, a member of the Board of Editors of the American Journal of International Law, Vice President of the American Society of International Law, and a member of the Institut de Droit International. James E. Baker is a Judge on the U.S. Court of Appeals for the Armed Forces. He has also served as Special Assistant to the President and Legal Adviser to the National Security Council (NSC), Deputy Legal Adviser to the NSC, Counsel to the President’s Foreign Intelligence Advisory Board, an Attorney Adviser in the U.S. Department of State, a Senate aide, and a Marine Corps infantry officer. M. Cherif Bassiouni is Distinguished Research Professor of Law and President Emeritus of the International Human Rights Law Institute at DePaul University College of Law. Eyal Benvenisti is Anny and Paul Yanowicz Professor of International Law at the Tel Aviv University Faculty of Law and a Member of the Visiting Global Law Faculty at the New York University School of Law.

Contributors and Editors

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Daniel Bodansky is Lincoln Professor of Law, Ethics and Sustainability at Arizona State University’s Sandra Day O’Connor College of Law. Laurence Boisson de Chazournes is Professor of International Law at the University of Geneva School of Law. Lucius Caflisch is a member of the International Law Commission and Emeritus Professor at the Graduate Institute of International and Development Studies, Geneva. From 1998 until 2006, he served as a Judge of the European Court of Human Rights. David D. Caron is the C. William Maxeiner Distinguished Professor of Law, University of California at Berkeley, and President of the American Society of International Law. Antonio Cassese is President of the Special Tribunal for Lebanon and a member of the Institut de Droit International. Formerly, he was Professor of International Law at the University of Florence and Judge (1993-2000) and President (1993-1997) of the International Criminal Tribunal for the former Yugoslavia. Steve Charnovitz is Associate Professor of Law at George Washington University Law School. Lung-chu Chen is Professor of Law at New York Law School, Senior Research Scholar at the Yale Law School, Chairman of the Taiwan New Century Foundation, Honorary President of the Taiwan United Nations Alliance (TAIUNA), a former President of the Taiwanese Society of International Law, and a former National Policy Adviser to the President (Taiwan). Tai-Heng Cheng is Visiting Associate Professor of Law at Vanderbilt Law School, Associate Professor of Law and Associate Director of the Center for International Law at New York Law School, and Senior Legal Advisor at Hoguet Newman Regal & Kenney, LLP. Christine Chinkin is Professor of International Law at the London School of Economics Department of Law and a William W. Cook Global Law Professor at the University of Michigan Law School. She also serves as the Director of Studies for the International Law Association. Jacob Katz Cogan is Associate Professor of Law at the University of Cincinnati College of Law. Rudolf Dolzer is University Professor at the University of Bonn.

Contributors and Editors

Florentino P. Feliciano is a Member of the Institut de Droit International, and an Honorary Member of the American Society of International Law. He was formerly Senior Associate Justice of the Supreme Court of the Philippines, and later Member and Chairman, Appellate Body of the World Trade Organization, and Member and President of the Asian Development Bank Administrative Tribunal. He is a Member of the World Bank Administrative Tribunal. He was for many years Professorial Lecturer in Law, College of Law, University of the Philippines. Aaron Xavier Fellmeth is Professor of Law at the Arizona State University College of Law. Jochen Abr. Frowein is Professor and Director Emeritus of the Max-Planck-Institute of International Law in Heidelberg, Germany, as well as former Vice-President of the European Commission of Human Rights. Christof Heyns is Dean and Professor of Human Rights Law at the University of Pretoria Faculty of Law. Rosalyn Higgins served as a Judge at the International Court of Justice from 1995 until 2009. She was the Court’s President from 2006 until 2009. Chimène I. Keitner is Associate Professor of Law at the University of California Hastings College of the Law. Magnus Killander is Research Coordinator at the Centre for Human Rights at the University of Pretoria Faculty of Law. Harold Hongju Koh is the Legal Adviser to the U.S. Department of State and Martin R. Flug Professor of International Law (on leave) at the Yale Law School. Previously, he was Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at the Yale Law School. Elli Louka is Lecturer in International Law at the Panteion University of Athens and Founder of Alphabetics Development and Investment. Menachem Mautner is the Danielle Rubinstein Chair of Comparative Civil Law and Jurisprudence at the Tel Aviv University Faculty of Law. Djamchid Momtaz is Professor of International Law at the University of Tehran and a Member of the Institut de Droit International. He served as a Member (2000-2006) and Chairman (2005) of the International Law Commission. Santiago Montt is Director of the Center on Regulation and Competition at Universidad de Chile, and an academic at Universidad Diego Portales.

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Contributors and Editors

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Francisco Orrego Vicuña is Professor of International Law at the University of Chile, former President of the Institut de Droit International, and Judge ad hoc at the International Court of Justice. Bernard H. Oxman is Richard A. Hausler Professor of Law and Director, Ocean and Coastal Law Program, University of Miami School of Law. He served as United States Representative and Vice-Chairman of the U.S. Delegation to the Third United Nations Conference on the Law of the Sea, and chaired the English Language Group of the Conference Drafting Committee. William W. Park is Professor of Law at Boston University School of Law and the General Editor of Arbitration International. Jan Paulsson is Michael Klein Distinguished Scholar Chair at the University of Miami School of Law, Centennial Professor of Law at the London School of Economics Department of Law, and head of the international arbitration and public international law groups of Freshfields Bruckhaus Deringer. Alain Pellet is Professor of Public International Law University of Paris Ouest, Nanterre-La Défense, a Member and former Chair of the International Law Commission, and an Associate Member of the Institut de Droit International. Kenneth C. Randall is Dean and McMillan Professor of Law at the University of Alabama School of Law. Steven R. Ratner is Bruno Simma Collegiate Professor of Law at the University of Michigan Law School. Nicholas Rostow is Senior Research Scholar at Yale University. He served most recently as University Counsel and Vice Chancellor for Legal Affairs at the State University of New York. He has held a number of government and academic positions, including General Counsel and Senior Policy Adviser to the U.S. Permanent Representative to the United Nations in New York (2001-2005) and Special Assistant for National Security Affairs to Presidents Reagan and George H.W. Bush and Legal Adviser to the National Security Council under National Security Advisers Colin L. Powell and Brent Scowcroft (1987-1993). In 2001, he held the Charles H. Stockton Chair in International Law at the U.S. Naval War College. Emmanuel Roucounas is Emeritus Professor at the University of Athens, a Member of the Academy of Athens, and Member and President (2009-2011) of the Institut de Droit International. Salman M.A. Salman is a former Lead Counsel and Water Law Adviser, Environmental and International Law Group, Legal Vice Presidency, The World Bank. Currently, he is a consultant on water law and policy.

Contributors and Editors

Christoph Schreuer is Of Counsel at Wolf Theiss, Vienna. Until 2009, he was Professor of International Law at the University of Vienna. Stephen M. Schwebel served as Judge (1981-2000) and President (1997-2000) at the International Court of Justice. Hi-Taek Shin is Professor of Law at the Seoul National University School of Law. Gary J. Simson is Dean and Macon Chair in Law at the Mercer University School of Law. Robert D. Sloane is Visiting Associate Professor of Law at the University of Michigan Law School and Associate Professor of Law at Boston University School of Law. He also serves as Chairman of the Board of Directors of Tibet Justice Center. Eisuke Suzuki is Professor of Policy Studies in the School of Policy Studies at Kwansei Gakuin University, Kobe-Sanda, Japan. He previously served as Director General, Operations Evaluation (2003-2005) and Deputy General Counsel (1996-2003) of the Asian Development Bank. He was the architect of the ADB’s Accountability Mechanism established in 2003. Attila Tanzi is a Full Professor of International Law at the University of Bologna Faculty of Law. He has been a legal consultant to the Italian Ministries for Foreign Affairs (1987-2001) and the Environment (1999-present) and has served as counsel and arbitrator in several inter-state disputes. Christian Tomuschat is an Emeritus Professor at the Humboldt University of Berlin Faculty of Law and a Member of the Institut de Droit International. From 1985 until 1996, he was a Member of the International Law Commission. Albert Jan van den Berg is a Partner at Hanotiau & van den Berg, Brussels, President of the Netherlands Arbitration Institute, Professor at Law at Erasmus University, Rotterdam, and Visiting Professor at the University of Miami School of Law. Guiguo Wang is Dean and Professor of Chinese and Comparative Law at the City University of Hong Kong School of Law, as well as Distinguished Professor of Law at Hunan Normal University, Hunan, China. Prosper Weil is Emeritus Professor at the University of Paris Panthéon-Assas (Paris II) and a Member of the Institut de Droit International, the Institut de France (Académie des Sciences Morales et Politiques), the Permanent Court of Arbitration, the Comité supérieur d’études juridiques of the Principality of Monaco (President since 2004), and the Academy of Athens. He has also served as a Member (1980-1999) and President (1989-1993) of the World Bank Administrative Tribunal.

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J.H.H. Weiler is University Professor at the New York University School of Law. 1100

Siegfried Wiessner is Professor of Law and Director of the Graduate Program in Intercultural Human Rights at St. Thomas University School of Law in Miami, Florida. He also serves as Chair of the International Law Association’s Committee on the Rights of Indigenous Peoples. Luzius Wildhaber is Emeritus Professor at the University of Basel where he was Professor of International, Constitutional, Administrative and Comparative Law from 1977 until 1998 and Rector from 1992 until 1994. From 1991 until 2007, he was a Judge at the European Court of Human Rights and its President from 1998 until 2007. Rüdiger Wolfrum is a Judge at the International Tribunal for the Law of the Sea and served as its President from 2005 until 2008. He is also Director at the Max-PlanckInstitute for Comparative Public Law and International Law in Heidelberg and Professor at the Faculty of Law of the University of Heidelberg.