INAPPROPRIATE RENDERINGS: THE
DANGER OF REDUCTIONIST RESOLUTIONS
John Cerone*
INTRODUCTION
I
n September 2007, major international news outlets reported that
“al-Qaeda in Iraq” had offered a reward for the murder of a Swedish
cartoonist who had drawn the Prophet Muhammad’s head on a dog’s
body.1 Western media cast the incident as an assault on the freedom of
expression launched by religiously motivated fanatics, as has been the
pattern in reporting recent similar incidents. A stark contrast is portrayed
between the open rational discourse that Western media see themselves
as fostering on the one side and those who claim that their belief systems
demand suppression of any expression they find blasphemous or otherwise unacceptably offensive on the other.
Since the Danish cartoon controversy first grabbed the international
spotlight in early 2006,2 the media has reported on hostile or anticipated
hostile responses from Muslim individuals and groups to various forms
of expression, including a speech by Pope Benedict,3 the honoring of
Salman Rushdie,4 and the cancellation of a German opera due to security
* Associate Professor of Law & Director of the Center for International Law &
Policy, New England School of Law. The Author was a Fulbright Guest Professor at the
Danish Institute for Human Rights in 2004. This Article is based on remarks delivered at
a panel discussion at the Palais des Nations during the inaugural session of the Human
Rights Council in June 2006. The Author would like to thank Angela Davis, Sandy
Lamar, Sarah Salter, and Barry Stearns for editorial assistance.
1. See, e.g., Bounty Set Over Prophet Cartoon, BBC NEWS, Sept. 15, 2007,
http://news.bbc.co.uk/2/hi/middle_east/6996553.stm; Louise Nordstrom, Artist Displays
Muhammad Cartoon Despite Al-Qaida Threat; Leader of Terror Group Offers Reward
for Killing Vilks, Paper’s Editor, CHI. SUN-TIMES, Sept. 19, 2007, at 35. For further background on the Danish cartoon controversy, see John Cerone, The Danish Cartoon Controversy & the International Regulation of Expression, ASIL INSIGHT, Feb. 7, 2006,
http://www.asil.org/insights/2006/02/insights060207.html.
2. The Danish cartoon controversy stems from the September 30, 2005 issue of Jyllands-Posten, a Danish newspaper. This issue contained an article entitled Muhammeds
Ansigt (The Face of Mohammed), and it was accompanied by twelve cartoons depicting
the prophet Mohammed in various fashions. Flemming Rose, Muhammeds ansigt [The
Face of Mohammed], JYLLANDS-POSTEN (Den.), Sept. 30, 2005, at KulturWeekend 3.
This publication outraged both Muslim and non-Muslim communities worldwide. See
also Stéphanie Lagoutte, The Cartoon Controversy in Context: Analyzing the Decision
Not to Prosecute Under Danish Law, 33 BROOK. J. INT’L L. 379, 381 (2008).
3. Muslim Anger Grows at Pope Speech, BBC NEWS, Sept. 15, 2006, http://news.
bbc.co.uk/2/hi/europe/5347876.stm.
4. Rushdie Title ‘May Spark Attacks’, BBC NEWS, June 18, 2007, http://news.
bbc.co.uk/2/hi/south_asia/6763119.stm.
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concerns.5 Despite attempts to cultivate a more nuanced understanding of
these phenomena, they continue to be illustrated in broad strokes that
reduce any discussion to a confrontation between competing values
backed by different camps with increasingly entrenched positions.
In response to the flare-up over the dog cartoon, the Swedish government immediately moved to ease tensions by expressing “regret” and
meeting with relevant foreign diplomats and other concerned groups.6
While this prompt action seems to indicate that the Swedish government
learned something from the Danish government’s diplomatic failures a
year earlier, the articulation of the underlying issues remains muddled.
As a spokeswoman for the Swedish Foreign Ministry stated, “[w]e can’t
apologise for the cartoons because we did not publish them.”7 She noted
that the government could not influence the publication of such cartoons
because of rules concerning media freedom in the country,8 echoing the
Danish government’s response to the earlier controversy.9
The Human Rights Council has adopted a very different, but equally
unsatisfactory, approach. On March 30, 2007, during its fourth Regular
Session, the council adopted a resolution condemning “religious defamation” as a human rights violation.10 In contrast to the Scandinavian government’s elevation of the freedom of expression, the approach manifested in this instrument is the primacy of religious conviction resonating
within the freedom of religion.
The two positions, both purportedly rooted in a system of theoretically
universal values, seem diametrically opposed, thus raising at least the
specter of incoherence and, more seriously, an outright rejection of the
notion of common humanity. Yet a closer examination of the relevant
rules of human rights law reveals that neither of these extreme positions
flows naturally from the wellspring of fundamental human rights. Although the corpus of international human rights law is far from a perfect
5. Beheaded Prophet Opera Dropped, BBC NEWS, Sept. 26, 2006,
http://news.bbc.co.uk/2/hi/entertainment/5382554.stm. The opera was ultimately rescheduled and performed a few months later. George Jahn, Berlin Opera Re-Stages
‘Idomeneo’, WASH. POST, Dec. 28, 2006, http://www.washingtonpost.com/wpdyn/content/article/2006/12/18/AR2006121800917.html.
6. Sweden ‘Regrets’ Prophet Cartoon, BBC NEWS, Aug. 31, 2007, http://news.
bbc.co.uk/2/hi/europe/6972093.stm.
7. Id.
8. Id.
9. Danish Firm Seeks Muslim Row End, BBC NEWS, Jan. 28, 2006, http://news.
bbc.co.uk/2/hi/europe/4656664.stm.
10. United Nations [U.N.] Human Rights Council, Report to the General Assembly on
the Fourth Session of the Human Rights Council, G.A. Res. 4/9, U.N. Doc. A/HRC/4/123
(Mar. 30, 2007) [hereinafter Human Rights Council Resolution].
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system, it provides a framework for articulating the full range of underlying issues. Ultimately, such examination can lead to a more satisfactory
spectrum of responses to the problems that have arisen.
I. BEYOND ABSTENTION: THE INTERNATIONAL REGULATION OF
EXPRESSION
International human rights law imposes an array of obligations on
states in relation to the expression of individuals and groups. The norms
constituting this array range from obligations of abstention, requiring the
state to refrain from interfering with the freedom of expression, to positive obligations, including the obligation to criminally punish certain
types of expression.11
The International Covenant on Civil and Political Rights (“ICCPR”)12
and the principal regional human rights treaties13 all require state parties
to protect freedom of expression. Article 19(2) of the ICCPR proclaims
that “[e]veryone shall have the right to freedom of expression; this right
shall include freedom to seek, receive, and impart information and ideas
of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice.”14 At the same
time, these treaties contain limitation clauses, recognizing the right of the
state to impose restrictions on that freedom.15 The jurisprudence of human rights bodies has distinguished various types of expression, providing different levels of protection for each.16
11. All of the rules discussed in this Section have their basis in human rights treaties,
though some may have also acquired the status of customary law. The resulting framework of rules, drawing as it does from a number of separately negotiated treaties, is not
necessarily coherent. Human rights bodies, conscious of this issue, have attempted to
harmonize the different treaty regimes. See, e.g., Jersild v. Denmark, 298 Eur. Ct. H.R.
(ser. A) at 22 (1994) (“Denmark’s obligations under Article 10 (art. 10) must be interpreted, to the extent possible, so as to be reconcilable with its obligations under the UN
Convention.”).
12. International Covenant on Civil and Political Rights art.19, opened for signature
Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
13. European Convention for the Protection of Human Rights and Fundamental Freedoms art.10, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR]; American Convention
on Human Rights art. 13, Nov. 22, 1969, 1144 U.N.T.S. 123 [hereinafter ACHR]; African Charter on Human and Peoples’ Rights art. 9(2), June 27, 1981, OAU Doc.
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 [hereinafter ACHPR].
14. ICCPR, supra note 12, art. 19(2).
15. ECHR, supra note 13, art. 10(2); ACHR, supra note 13, art. 13(2); ACHPR, supra note 13, art. 9(2).
16. See, e.g., Feldek v. Slovakia, 2001-VIII Eur. Ct. H.R. 87, 106; Otto-Preminger
Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) at 17–18 (1994); Thorgeirson v. Iceland,
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However, human rights law also contains rules requiring the suppression of expression. As opposed to the limitation clauses indicated above,
which permit, but do not require, state parties to limit the freedom of expression, rules such as those set forth in article 20 of the ICCPR impose
obligations to prohibit certain types of expression.17 Article 20 requires
parties to “prohibit[] by law,” inter alia, “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence . . . .”18 Similarly, the Convention on the Elimination of
All Forms of Racial Discrimination (“CERD”) requires parties to “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.”19 In particular, it obliges parties to criminalize “dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement
to such acts against any race or group of persons of another colour or
ethnic origin,” as well as participation in “propaganda activities, which
promote and incite racial discrimination.”20 One particular type of expression has been singled out for the strongest suppression obligation.
The Convention on the Prevention and Punishment of the Crime of
Genocide (“Genocide Convention”) obliges all states to criminalize,
prosecute, and punish the international crime of incitement to genocide.21
In light of this spectrum of obligations relating to expression, it goes
without saying that compliance with human rights standards in this arena
cannot be reduced to obligations of abstention. At a minimum, states
cannot claim that human rights law constitutes an impenetrable barrier to
the regulation of expression.
While the examples surveyed in the Introduction to this Article would
not constitute incitement to genocide, they may implicate other human
239 Eur. Ct. H.R. (ser. A) at 27 (1992); Muller v. Switzerland, 133 Eur. Ct. H.R. (ser. A)
at 19 (1988).
17. ICCPR, supra note 12, art. 20.
18. Id.
19. International Convention on the Elimination of All Forms of Racial Discrimination art. 4, Dec. 12, 1965, 660 U.N.T.S. 195 [hereinafter CERD].
20. Id.
21. Convention on the Prevention and Punishment of the Crime of Genocide art. 3,
Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 [hereinafter Genocide Convention]. The
International Court of Justice (“ICJ”) has held that the rules enshrined in the Genocide
Convention have acquired the status of customary international law, binding all states.
Reservations to Convention on Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, 1951 I.C.J. 15, 23 (May 28).
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361
rights standards, such as the freedom of religion and the principle of
nondiscrimination.
II. FREEDOM OF EXPRESSION AND ITS RELATIONSHIP WITH OTHER
HUMAN RIGHTS
As noted above, each treaty that sets forth the freedom of expression
also contains a limitation clause. For example, article 19(3) of the ICCPR
expressly permits parties to impose restrictions on the exercise of the
right to freedom of expression.22 However, article 19(3) also limits the
type and scope of permissible restriction. In order to be valid under article 19(3), a given restriction must be “provided by law” and must be
“necessary” to achieve certain purposes.23 These purposes include respecting “the rights or reputations of others” and “the protection of national security or of public order (ordre public), or of public health or
morals.”24 The principal regional human rights treaties contain analogous
provisions.25
Human rights bodies mandated to oversee compliance with these treaties have grappled with a number of cases in which states have suppressed expression deemed to be discriminatory, blasphemous, or otherwise offensive to a religious community. In some cases the suppression
was found to violate the freedom of expression, in other cases the suppression was deemed a permissible limitation, and in at least one case,
the expression was held to be ineligible for protection under the relevant
treaty.
A. The Human Rights Committee
The Human Rights Committee, the treaty-body mandated to monitor
implementation of the ICCPR, has issued general comments on articles
19 and 20, elaborating its views on the content of the obligations set forth
therein.26 In its General Comment No. 11, the committee noted that the
article 20 obligations to prohibit certain forms of expression “are fully
compatible with the right of freedom of expression as contained in article
19, the exercise of which carries with it special duties and responsibilities.”27 The committee also opined that states should enact a law “making
22. ICCPR, supra note 12, art. 19(3).
23. Id.
24. Id.
25. See supra note 13 and authorities cited therein.
26. U.N. Human Rights Comm., General Comment 11: Prohibition of Propaganda for
War and Inciting National, Racial or Religious Hatred (Arts. 19–20) at 12, U.N. Doc.
HRI/GEN/1/Rev.7 (July 29, 1983).
27. Id. art. 20.
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it clear that propaganda and advocacy as described therein are contrary to
public policy and providing for an appropriate sanction in case of violation.”28 The jurisprudence of the Human Rights Committee in individual
cases has provided further insight into its view of the interaction between
the freedom of expression and the rights of others.29
Early on, the committee found that certain types of expression may be
removed from the ambit of protection provided by article 19 by the operation of article 20. In the case of J.R.T. & the W.G. Party v. Canada,
the committee found a criminal prosecution for hate speech to be compatible with the ICCPR.30 It opined that the petitioner’s public dissemination of anti-Semitic views fell within article 20 and was thus ineligible
for protection under article 19.31 While the committee’s views in this
case give some indication of the limits of article 19, its brief analysis offers little guidance on the relationship between the freedom of expression
and the obligation to prevent discrimination.
A decade later, the committee had the opportunity to consider this issue in greater depth in the context of a Holocaust denial case. In Faurisson v. France, the complainant alleged that his conviction under French
law for contesting the existence of the Holocaust constituted a violation
of his freedom of expression.32 In concluding that the ICCPR had not
been violated, the Human Rights Committee considered a number of factors, including the broader social context in which the expression was
made.33 The committee noted, in particular, the statement of the French
government that “characterized the denial of the existence of the Holocaust as the principal vehicle for anti-Semitism.” 34As such, the prosecution was justified as “necessary” within the meaning of article 19(3).35
28. Id.
29. The jurisprudence of the committee takes the form of “views” expressed in response to petitions from individuals alleging violations of the ICCPR by State parties to
its first Optional Protocol (“OP”). See Optional Protocol to the International Covenant on
Civil and Political Rights art. 5, Dec. 19, 1966, 999 U.N.T.S. 302.
30. J.R.T. & the W.G. Party v. Canada, ¶ 8(b), U.N. Human Rights Comm., U.N.
Doc. CCPR/C/18/D/104/1981 (declared inadmissible Apr. 6, 1983).
31. Id. The committee’s failure to test this restriction of expression against the requirements of art. 19(3) was criticized by commentators. See, e.g., MANFRED NOWAK,
U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 367–36 (N.P.
Engel 1993). In recent years, the practice of the Human Rights Committee has been to
consider any state interference with expression as a potential violation of freedom of
expression, and thus to examine the restriction under article 19(3).
32. Faurisson v. France, ¶ 2.1, U.N. Human Rights Comm., U.N. Doc. CCPR/C/58/
D/550/1993 (1996).
33. Id. ¶ 9.6.
34. Id. ¶ 9.7.
35. Id.
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In both cases, the committee found restrictions on the freedom of expression to be compatible with the ICCPR because they were directed
toward protecting a group from discrimination. The committee also demonstrated, in the context of the Faurisson case, the importance of considering the broader context in which the relevant expression was made.
The importance of this contextual factor is similarly reflected in the jurisprudence of the European Court of Human Rights.
B. The European Court of Human Rights
Of all international human rights mechanisms, the institutions established under the European Convention for the Protection of Human
Rights and Fundamental Freedoms (“ECHR”)36 have produced the most
extensive freedom of expression jurisprudence. Although the European
Convention formally applies only to Council of Europe Member States,37
its provisions closely resemble the provisions of the ICCPR. Thus, decisions of the European Court of Human Rights, as authoritative interpretations of comparable provisions by an international judicial body, provide
persuasive guidance in the interpretation of the ICCPR and may also
contribute to the development of customary law standards.38
Article 10 of the ECHR closely resembles article 19 of the ICCPR. Article 10 expressly provides for the right to freedom of expression, and
then qualifies this right with a limitation clause.39 Unlike the ICCPR,
however, the ECHR contains no provision expressly requiring state parties to prohibit certain types of expression. Nonetheless, it does contain a
provision that has been interpreted to exclude certain types of expression
from protection. Article 17 of the ECHR states:
Nothing in this Convention may be interpreted as implying for any
State, group or person any right to engage in any activity or perform
any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for
in the Convention. 40
Although rarely invoked as an express basis for justifying interference
with freedom of expression, the court has acknowledged that, pursuant to
article 17, remarks directed against the ECHR’s underlying values “could
36. ECHR, supra note 13. The ECHR entered into force in 1953 and serves as a supranational system for the protection of human rights in Europe.
37. Id. art 1.
38. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §§ 102–103 (1987) (the
judgments and opinions of international judicial tribunals as to the meaning of international agreements are accorded substantial weight).
39. ECHR, supra note 13, art. 10(2).
40. ECHR, supra note 13, art. 17.
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not be allowed to enjoy the protection afforded under Article 10.”41 In
particular, it has held that “there is a ‘category of clearly established
historical facts—such as the Holocaust—whose negation or revision
would be removed from the protection of Article 10 by Article 17.’”42
In Garaudy v. France, the court rejected as inadmissible the applicant’s claim that his prosecution for Holocaust denial violated article 10
of the ECHR.43 The court found that the applicant, in the book upon
which his prosecution was based, “systematically denied the crimes
against humanity perpetrated by the Nazis against the Jewish
community.”44 The court found that “in accordance with Article 17 of the
Convention,”45 such expression was ineligible for protection under article
10, and it dispensed with its usual analysis under article 10’s limitation
clause. 46
Nonetheless, in excluding Holocaust denial from the protection of the
ECHR, the court relied on many of the factors that would typically be
employed in such an analysis. It noted that Holocaust denial was one of
the most serious forms of incitement to hatred of Jewish people, that it
infringes the rights of others, and that it constitutes a serious threat to
public order.47 In any event, the court has only exceptionally adopted this
41. See Lehideux & Isorni v. France, 92 Eur. Ct. H.R. 2864, 2886 (1998) (citation
omitted). The court stated that “there is no doubt that, like any other remark directed
against the Convention’s underlying values, the justification of a pro-Nazi policy could
not be allowed to enjoy the protection afforded by Article 10.” Id. See also Eur. Consult.
Ass., Recommendation No. R. (97) 20 of the Comm. of Ministers, Principle 4 (Oct. 30,
1997). This recommendation states that:
National law and practice should bear in mind that specific instances of hate
speech may be so insulting to individuals or groups as not to enjoy the level of
protection afforded by Article 10 of the European Convention on Human
Rights to other forms of protection. This is the case where hate speech is aimed
at the destruction of the rights and freedoms laid down in the Convention or at
their limitation to a greater extent than provided therein.
Id.
42. Garaudy v. France, 2003-IX Eur. Ct. H.R. 369, 396 (quoting Lehideux & Isorni,
92 Eur. Ct. H.R. at 2884).
43. Id.
44. Id.
45. Id. at 397.
46. Id.
47. Id. The court stated that:
Denying crimes against humanity is therefore one of the most serious forms of
racial defamation of Jews and of incitement to hatred of them. The denial or
rewriting of this type of historical fact undermines the values on which the fight
against racism and anti-Semitism are based and constitutes a serious threat to
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365
approach of excluding expression from the protection of the ECHR. Indeed, this appears to be the only case in which the court has relied on
article 17 in its ratio decidendi for rejecting a freedom of expression
claim. This is likely a consequence of the unique significance of the
Holocaust in European history and is thus part of the broader social context against which the limits of free expression in Europe are tested.
This exceptional use of article 17 must also be viewed against the
backdrop of the otherwise lofty status the court accords to article 10. The
court has consistently held that “freedom of expression, as secured in
paragraph 1 of Article 10, constitutes one of the essential foundations of
a democratic society and one of the basic conditions for its progress and
for each individual’s self-fulfilment.”48 It has further found that, subject
to the limitations of article 10(2), this freedom is “applicable not only to
‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock
or disturb.”49 Therefore, the offensive character of a given expression
cannot itself justify suppression unless it can be subsumed under one of
the grounds for limitation set forth in article 10(2).50
Thus, apart from the example of Holocaust denial mentioned above,
the court analyzes restrictions on virtually any other type of expression
for compliance with article 10’s limitation clause.51 Article 10(2) states:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confi-
public order. Such acts are incompatible with democracy and human rights because they infringe the rights of others. Their proponents indisputably have designs that fall into the category of aims prohibited by Article 17 of the Convention.
Id.
48. Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) at 26 (1986).
49. Id.
50. Id. at 18.
51. For example, even in cases where the expression at issue was deemed by the court
to amount to an “appeal to bloody revenge,” the court did not apply article 17 of the
European Convention, but instead analyzed the restriction under article 10(2). See Surek
v. Turkey (No. 1), 1999-IV Eur. Ct. H.R. 355, 382.
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dence, or for maintaining the authority and impartiality of the judiciary.52
In considering applications alleging a breach of article 10, the court has
developed a standard framework of analysis. The court ascertains
whether there has been an interference with the article 10(1) freedom of
expression. It has found that virtually any prohibition or punishment of
expression constitutes an interference with the freedom of expression.53
Once the court finds such interference, it applies a three-part test under
article 10(2) to determine whether the interference is permissible. In order to be in compliance with the Convention, the interference must be
prescribed by law, for one of the enumerated aims, and necessary in a
democratic society.54 In applying this test, the court affords national authorities a margin of appreciation (i.e., the scope of discretion left to the
state).55 However, that margin of appreciation has not prevented the court
from making a full assessment of all of the facts.56 The court must still
satisfy itself, in light of those facts, that the reasons proffered for the restriction are relevant and sufficient to confirm the existence of a pressing
social need, corresponding to one of the listed aims, and to demonstrate
that the interference is required to meet and is proportionate to that
need.57
Apart from the very narrow category of expression to which article 17
has been applied, no categorical line is drawn between types of expression that will or will not be protected from interference by national authorities. The court examines the content of the expression in its broader
context, including both the form in which it appears and the local situation to which it pertains.58 In so doing, the court examines a number of
factors, including the nature of the expression, the position of the
52. ECHR, supra note 13, art. 10(2).
53. See, e.g., Surek v. Turkey (No. 1), 1999-IV Eur. Ct. H.R. 355; Jersild v. Denmark,
298 Eur. Ct. H.R. (ser. A) (1994); Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) (1986).
54. See Surek, 1999-IV Eur. Ct. H.R. at 382; Jersild, 298 Eur. Ct. H.R. (ser. A) at 20;
Lingens, 103 Eur. Ct. H.R. (ser. A) at 26.
55. Surek, 1999-IV Eur. Ct. H.R. at 382; Jersild, 298 Eur. Ct. H.R. (ser. A) at 21;
Lingens, 103 Eur. Ct. H.R. (ser. A) at 25.
56. Surek, 1999-IV Eur. Ct. H.R. at 382; Jersild, 298 Eur. Ct. H.R. (ser. A) at 23;
Lingens, 103 Eur. Ct. H.R. (ser. A) at 25.
57. Surek, 1999-IV Eur. Ct. H.R. at 382; Jersild, 298 Eur. Ct. H.R. (ser. A) at 23;
Lingens, 103 Eur. Ct. H.R. (ser. A) at 25.
58. Surek, 1999-IV Eur. Ct. H.R. at 382; Jersild, 298 Eur. Ct. H.R. (ser. A) at 23;
Lingens, 103 Eur. Ct. H.R. (ser. A) at 25.
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367
speaker, the target of any criticism, the intended audience, the type of
publication in which it appears, and the nature of the interference.59
Where the expression implicates the role of the press as public watchdog, is political, or concerns a matter of public interest, the margin of
appreciation is narrowed.60 When the expression at issue incites violence,
the authorities will be granted a wider margin of appreciation, indicating
a greater deference to the judgment of national authorities and effectively
lessening the degree of international protection afforded the expression.61
III. THE PROTECTION OF THE RIGHTS OF OTHERS
As noted above, one of the aims pursuant to which restrictions on freedom of expression may be imposed is the protection of the rights of others. The rights most directly implicated by the types of expression at issue in the relevant controversies described above are freedom from discrimination and freedom of religion.
A. Freedom from Discrimination
In Jersild v. Denmark, the Danish government interfered with a journalist’s freedom of expression by prosecuting and convicting him for
disseminating the racist expressions of others in a television documentary.62 While recognizing that this interference pursued the legitimate
aim of protecting the rights of others, the European Court of Human
Rights found that criminal prosecution was not “necessary in a democratic society” to achieve that aim, and it thus constituted a violation of
article 10 of the ECHR.63
The Danish Prime Minister may have had this case in mind in early
2006 when he responded to outrage over the Mohammed cartoons by
reaffirming Denmark’s commitment to a free press.64 However, there are
a number of important distinctions between the Jersild case and the Danish cartoon controversy.
In the course of its analysis in Jersild, the court emphasized several
key factors: the fact that the applicant was functioning in his capacity as
a journalist, the context in which the statements were broadcast, and the
59. Surek, 1999-IV Eur. Ct. H.R. at 382; Jersild, 298 Eur. Ct. H.R. (ser. A) at 24–25;
Lingens, 103 Eur. Ct. H.R. (ser. A) at 25.
60. Jersild, 298 Eur. Ct. H.R. (ser. A) at 22.
61. See generally Surek v. Turkey, 1999-IV Eur. Ct. H.R. 353.
62. Jersild, 298 Eur. Ct. H.R. (ser. A) at 15.
63. Id. at 26.
64. Anders Fogh Rasmussen, Prime Minister of Denmark, Press Conference Opening
Statement (Feb. 7, 2006), http://www.stm.dk/ (follow “taler” or “speeches” hyperlink in
the left column).
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purpose of the documentary.65 With regard to the applicant’s role as a
member of the press, the court recalled the importance of a free press in a
democratic society and noted that “[a] significant feature of the present
case is that the applicant did not make the objectionable statements himself but assisted in their dissemination in his capacity of television journalist responsible for a news programme . . . .”66 In examining the context in which the news program was broadcast, the court disagreed with
the finding of the Danish courts that there had been no “attempt to counterbalance the extremist views expressed.”67 The court noted that “the
TV presenter’s introduction and the applicant’s conduct during the interviews clearly dissociated him from the persons interviewed,” that Jersild
had “rebutted some of the racist statements” made, and that, “taken as a
whole, the filmed portrait surely conveyed the meaning that the racist
statements were part of a generally anti-social attitude” on the part of the
extremists.68
The court ultimately found that the program, viewed as a whole,
could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought—by
means of an interview—to expose, analyse and explain this particular
group of youths, limited and frustrated by their social situation, with
criminal records and violent attitudes, thus dealing with specific aspects
of a matter that already then was of great public concern.69
In relying on the facts that the news item at issue did not have as its
purpose the promotion of racial discrimination and that Jersild had provided a degree of balance to the racist statements made—statements that
the court noted would be unprotected by article 1070—the court left open
the possibility that governmental restraints may be justifiably imposed
when the press simply acts as a mouthpiece for the dissemination of racist views.71
65. Jersild, 298 Eur. Ct. H.R. (ser. A) at 23.
66. Id.
67. Id. at 25. See also Lagoutte, supra note 2, at 398.
68. Id.
69. Id. at 24.
70. Jersild, 298 Eur. Ct. H.R. (ser. A) at 25 (dictum indicating that the scope of expression to which the court is prepared to apply article 17 may not be limited to the singular case of Holocaust denial).
71. The court emphasized that it was “particularly conscious of the vital importance
of combating racial discrimination in all its forms and manifestations” and affirmed that
its interpretation was not incompatible with Denmark’s obligations under the CERD. Id.
at 22.
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INAPPROPRIATE RENDERINGS
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B. Freedom of Religion
The European Court of Human Rights has also had the opportunity to
examine freedom of expression in relation to religious freedom. The
court has described the latter freedom in similarly lofty terms, finding the
freedom of religion to be not only “one of the foundations of a ‘democratic society,’” but also “one of the most vital elements that go to make
up the identity of believers and their conception of life.”72
There are a variety of ways in which freedom of expression and freedom of religion may interact. A state might enact laws that permit, prohibit, or require expression that conflicts with religious tenets or that creates an environment that otherwise inhibits religious practices. In Kokkinakis v. Greece, the court held that a state may legitimately consider it
necessary to take measures aimed at repressing certain forms of conduct,
including the imparting of information and ideas judged incompatible
with respect for the freedom of thought, conscience, and religion of others.73
However, much of the court’s jurisprudence on the interaction of these
rights has centered on the “protection of religious feelings,” which the
court has found to be a component of the freedom of religion.74 The court
has invoked the aim of protecting religious feelings in a string of cases
concerning blasphemy laws.
In Otto-Preminger-Institut v. Austria, handed down the day after Jersild, the court found no violation in the forfeiture and seizure of a film
that the Austrian government deemed to be “an attack on the Christian
religion.”75 The court found the seizure to be “necessary in a democratic
society” to achieve, inter alia, the legitimate aim of protecting the rights
of others.76 It interpreted the latter as including “the right of citizens not
to be insulted in their religious feelings by the public expression of views
of other persons.”77
At the same time, however, the court made clear that the protection of
religious feelings could not be invoked to justify a ban on all criticism of
religion. It stated:
Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or
72. Otto-Preminger Institut v. Austria, 295 Eur. Ct. H.R. (ser. A) at 17–18 (1994).
73. Kokkinakis v. Greece, 260-A Eur. Ct. H.R. (ser. A) at 20 (1993).
74. See, e.g., Otto-Preminger Institut, 295 Eur. Ct. H.R. (ser. A) at 17–18; Wingrove
v. United Kingdom (No. 2), 1996-V Eur. Ct. H.R. 1937, 1957.
75. Otto-Preminger Institut, 295 Eur. Ct. H.R. (ser. A) at 20.
76. Id. at 20–21.
77. Id. at 18.
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a minority, cannot reasonably expect to be exempt from all criticism.
They must tolerate and accept the denial by others of their religious
beliefs and even the propagation by others of doctrines hostile to their
faith.78
In the subsequent case of Wingrove v. The United Kingdom, the court
again invoked the protection of religious feelings as justifying what
amounted to a total ban of a video containing content deemed blasphemous under relevant British law.79 The British authorities had determined
that the video, which portrayed sexual conduct between individuals revered in Christianity, would “outrage the feelings of Christians, who
would reasonably look upon it as being contemptuous” of fundamental
religious tenets.80
The court noted that the purpose of the restriction was to protect
against the contemptuous treatment of a religious subject that was bound
to “outrage” Christians and that this goal “undoubtedly corresponds to
that of the protection of ‘the rights of others.’”81 It concluded this was
“fully consonant with the aim of the protections afforded . . . to religious
freedom.”82
In assessing whether the ban was “necessary in a democratic society,”
the court began by noting that “a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion,” indicating the
broad discretion it would afford the state in this matter.83 The court reasoned that
State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the “necessity” of
a “restriction” intended to protect from such material those whose
deepest feelings and convictions would be seriously offended.84
However, the court also made clear that there remained limits to that
discretion, and that European supervision was “all the more necessary
given the breadth and open-endedness of the notion of blasphemy and
the risks of arbitrary or excessive interferences with freedom of expres78.
79.
80.
81.
82.
83.
84.
Id. at 17–18.
Wingrove, 1996-V Eur. Ct. H.R. at 1960.
Id. at 1947–49.
Id. at 1955.
Id.
Id. at 1958.
Id. at 1957–58.
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371
sion under the guise of action taken against allegedly blasphemous material.”85 In ultimately finding the ban justified, the court relied on several
factors that may indicate limits on the state’s discretion: whether it was a
total prohibition, whether it was content neutral, and whether there were
safeguards against its arbitrary application.86
In applying these criteria to the facts of the case before it, the court
emphasized that the relevant domestic law did not “prohibit the expression, in any form, of views hostile to the Christian religion.”87 The law
sought only to control the manner in which the views were advocated, as
opposed to the content of the views themselves.88 Further, the primary
“safeguard against arbitrariness” identified by the court was the “high
degree of profanation that must be attained” in order for expression to
constitute blasphemy.89 The court noted that the extent of insult to religious feelings must be significant, referring to the domestic courts’ use
“of the adjectives ‘contemptuous’, ‘reviling’, ‘scurrilous’, [and] ‘ludicrous’ to depict material of a sufficient degree of offensiveness.”90
The court adopted a similar approach in the more recent case I.A. v.
Turkey, in which it found a criminal prosecution for blasphemy to be
consistent with article 10.91 In particular, the court found that Turkey was
justified in imposing a fine on the author of a book for his “abusive attack on the Prophet of Islam,”92 noting that believers might legitimately
have felt themselves “to be the object of unwarranted and offensive attacks” by some of the book’s passages.93
In each of these cases, the European Court of Human Rights found the
suppression of expression justified in order to protect the religious freedom of others. In particular, the states had imposed restrictions directed
toward the protection of the religious feelings of adherents to the majority religion in each state. To the extent that these restrictions are
grounded in the protection of the rights of others, as opposed to, for ex-
85. Id.
86. Id.
87. Id. at 1958.
88. Id.
89. Id.
90. Id.
91. I.A. v. Turkey, App. No. 42571/98, Eur. Ct. H.R. (2005), http://cmiskp.
echr.coe.int/tkp197/view.asp?action=html&documentId=786558&portal=hbkm&source=
externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (last visited
Nov. 7, 2007).
92. Id. ¶ 29.
93. Id.
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ample, the prevention of disorder,94 they would seem even more justified
for the protection of religious minorities, who are generally more vulnerable.
The jurisprudence of the court makes clear that the freedom of expression cannot be invoked to allow the creation or perpetuation of a discriminatory environment or one that inhibits the exercise of freedom of
religion. At the same time, its tendency to find blasphemy laws consistent with the ECHR indicates that the court may have lost its sense of the
balance between these freedoms. Indeed, at times it seems as though the
court is permitting the suppression of expression without any showing
that the rights of others were actually or even potentially infringed. For
example, in the cases described above, the court did not endeavor to
demonstrate a clear link between the protection of religious feelings and
the exercise of freedom of religion—a link that may be particularly tenuous when the feelings of a dominant majority are at issue.
Restrictions on expression serve human rights principles when they are
applied to protect a vulnerable group from discrimination or to protect
the ability of its members to practice their religion. Blasphemy laws that
serve only to prevent expression deemed offensive by a majority population are less defensible. From a human rights perspective, this is one of
the fundamental problems with blasphemy laws; they tend to focus on
protection of the group’s feelings, and as such are concerned with how
that group may respond to the expression at issue. The more important
inquiry for the purposes of human rights law is how the expression affects the attitude of others vis-à-vis that group.95 Does it incite discrimination against members of that group? Does it create a social environment in which members of that group are unable to practice their religion? Indeed, some of the court’s more recent judgments indicate that the
court may be backing away from the level of protection accorded to religious feelings in the absence of some more tangible interference with
religious freedom.96 The Human Rights Council, on the other hand,
94. The prevention of disorder has also been invoked as a justification for suppression
of expression under blasphemy laws. Indeed, in Otto-Preminger, the court noted that
“[i]n seizing the film, the Austrian authorities acted to ensure religious peace in that region.” Otto-Preminger Institut v. Austria, 295 Eur. Ct. H.R. (Ser. A) at 20–21 (1994).
This approach, however, seems to disserve human rights by enabling the anger of the
majority to limit the rights of a minority.
95. Distinguish the mere depiction of Mohammed, which is liable to offend some
Muslims, from the depiction of Mohammed in a manner that incites discrimination
against Muslims, e.g., by inviting the viewer to associate Islam with terrorism and Muslims with violence.
96. See Gieniwski v. France, App. No. 64016/00, Eur. Ct. H.R. (2006), http://cmiskp.
echr.coe.int/tkp197/view.asp?action=html&documentId=791924&portal=hbkm&source=
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INAPPROPRIATE RENDERINGS
373
seems to have picked up where the European Court of Human Rights left
off and has taken the protection of religious feelings a step further.
IV. THE HUMAN RIGHTS COUNCIL APPROACH—COMBATING
DEFAMATION OF RELIGIONS
Since its creation in the spring of 2006, the Human Rights Council has
taken a keen interest in the issue of defamation of religions. During its
inaugural session in June 2006, the council requested that two of its Special Rapporteurs report on the issue at its next session.97 The decision to
request the report was taken against the backdrop of the Danish cartoon
controversy and was led by council members that are also members of
the Organization of the Islamic Conference (“OIC”).98 The decision was
opposed by twelve members of the Council who, as a group, were predominantly representatives of Western countries.99
A similar voting pattern was evident in March 2007 when the council
adopted Resolution 4/9 on “Combating Defamation of Religions.”100
This resolution was introduced by Pakistan on behalf of the OIC.101 The
resolution conceives of defamation of religions as a lynchpin human
rights issue. Its preamble “[n]ot[es] with concern that defamation of religions is among the causes of social disharmony and leads to violations
of human rights.”102
While many of its provisions are couched in general terms applicable
to all religions, the resolution focuses primarily on defamation of Islam.
Thus, in an apparent reference to the Danish cartoon controversy, the
council “deplores the use of the print, audio-visual and electronic media,
externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 (last visited
May 14, 2008) (conviction for religious defamation found to violate article 10); Klein v.
Slovakia, App. No. 72208/01, Eur. Ct. H.R. (2007), http://cmiskp.echr.coe.int/tkp197/
view.asp?action=html&documentId=809920&portal=hbkm&source=externalbydocnumb
er&table=F69A27FD8FB86142BF01C1166DEA398649 (last visited May 14, 2008)
(conviction for religious defamation found to violate article 10).
97. See U.N. Human Rights Council Decision 1/107, Incitement to Racial and Religious Hatred and the Promotion of Tolerance, U.N. Doc. A/HRC/DEC/1/107 (Nov. 13,
2006) [hereinafter Human Rights Council Decision].
98. Id. See also Organization of the Islamic Conference, www.oic-oci.org/oicnew/
member_states.asp (last visited Feb. 8, 2008).
99. Human Rights Council Decision, supra note 97.
100. Human Rights Council Resolution, supra note 10. On the voting pattern, see U.N.
Human Rights Council, Summary Record of the 31st Meeting ¶ 73, U.N. Doc.
A/HRC/4/SR.31 (Sept. 21, 2007) [hereinafter Human Rights Council 31st Meeting]. See
also U.N. Human Rights Council, Summary Record of the 24th Meeting ¶ 41, U.N. Doc.
A/HRC/1/SR.24 (July 18 2006).
101. Human Rights Council 31st Meeting, supra note 100, ¶ 60.
102. Human Rights Council Resolution, supra note 10, pmbl.
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including the Internet, and any other means to incite acts of violence,
xenophobia or related intolerance and discrimination towards Islam or
any other religion.”103 Similarly, the council expressed “deep concern at
attempts to identify Islam with terrorism, violence and human rights violations”104 and noted with “deep concern the intensification of the campaign of defamation of religions, and the ethnic and religious profiling of
Muslim minorities, in the aftermath of the tragic events of 11 September
2001.”105 It also requested the United Nations (“U.N.”) Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance “report on all manifestations of defamation of religions and in particular on the serious implications of Islamophobia on the enjoyment of all rights.”106
The council’s singular preoccupation with Islamophobia becomes more
acute in light of the fact that efforts to include protection of other specifically identified religions were blocked by supporters of the resolution. At
the same time, the singling out of a particular religion for special attention is not necessarily problematic to the extent it is necessary to address
issues particular to that religion.107
Far more problematic is the resolution’s overall tendency to conceive
of defamation of religions as a human rights violation or as a discrete
evil on par with human rights violations. Certainly some expressions that
could be characterized as religious defamation could also constitute human rights violations, but not so every defamatory expression. A human
rights issue arises when the expression incites discrimination against
members of that religion or when it otherwise interferes with their religious freedom.108 It is not the mere fact that the expression is defamatory
that makes it a human rights issue.
The fact that religious defamation is not itself a human rights issue is
implicit in the way in which the resolution recalls the freedom of expression. In paragraph 10, the council:
Emphasizes that everyone has the right to freedom of expression, which
should be exercised with responsibility and may therefore be subject to
limitations as provided by law and necessary for respect of the rights or
103. Id. ¶ 11. See also id. ¶¶ 2, 3, 5, and 12.
104. Id. ¶ 2.
105. Id. ¶ 3.
106. Id. ¶12.
107. The international law of nondiscrimination recognizes that special positive measures are at times required in order to ensure substantive equality. See, e.g., CERD, supra
note 19, arts. 1(4), 2(2).
108. See supra Section III.B.
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INAPPROPRIATE RENDERINGS
375
reputations of others, protection of national security or of public order,
public health or morals and respect for religions and beliefs.109
Significantly, “respect for religion and beliefs” is included as an additional aim pursuant to which restrictions on the freedom of expression
may be justified.110 This language does not appear in the limitation
clauses of any human rights treaties.111 The fact that it is listed separately
from the “rights or reputations of others” implies that it could serve as an
independent basis for limiting the freedom of expression.112
The inclusion of this phrase is troubling because it could be read to license broad-based and wide-ranging blasphemy laws. By including the
aim of respect for religion and beliefs without a nexus to types of expression that in fact infringe upon the rights of others, the resolution opens
the door to proscriptions encompassing any criticism of religion. This
interpretation is all the more feasible in light of the final preambular
paragraph, in which the Council “[n]ot[es] with deep concern the increasing trend in recent years of statements attacking religions, Islam and
Muslims in particular, in human rights forums,”113 and it is all the more
threatening to a proper understanding of freedom of expression in countries where the power of the state is closely tied to religious authority.
CONCLUSION
The battle lines are still being drawn. Tehran holds a conference that
focuses on questioning the existence of the Holocaust114 and the U.N.
General Assembly, in a resolution introduced by the United States,
“[c]ondemns without any reservation any denial of the Holocaust.”115 In
the September 2007 session of the Human Rights Council, Pakistan
warned against revision of the Human Rights Committee’s General
Comment on article 20, fearing that Western influence in the committee
109. Human Rights Council Resolution, supra note 10, ¶ 10 (emphasis in original).
110. Id.
111. It should also be noted that in paragraph 7, the council “[u]rges States to take
resolute action to prohibit the dissemination, including through political institutions and
organizations, of racist and xenophobic ideas and material aimed at any religion or its
followers that constitute incitement to racial and religious hatred, hostility or violence,”
in language that sweeps more broadly than article 20(2) of the ICCPR. See id. ¶ 7;
ICCPR, supra note 12, art. 20(2).
112. Id. ¶ 10.
113. Human Rights Council Resolution, supra note 10, pmbl.
114. Holocaust Meeting Stirs Passions, BBC NEWS, Dec. 13, 2006, http://news.bbc.
co.uk/2/hi/middle_east/6175353.stm.
115. G.A. Res. 61/255 ¶ 1, U.N. Doc. A/RES/61/255 (Jan. 26, 2007).
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would lead to a narrowing of the types of expression required to be suppressed.116
In early 2008, after Danish authorities uncovered a plot to kill the illustrator of one of the more controversial cartoons, newspapers throughout
Denmark reprinted the cartoons, citing as justification the defense of the
freedom of expression.117 At the same time, a member of the Dutch parliament released a controversial film associating recent terrorist violence
with Islam.118 These developments fueled a divisive debate in the March
2008 session of the Human Rights Council, which led to a modification
of the mandate of the Special Rapporteur on Freedom of Expression.119
The draft of this resolution, initially introduced by Canada, renewed the
mandate of the Special Rapporteur.120 Over the protest of the Canadian
delegate, as well as objections by a number of other, mostly Western,
countries that had initially sponsored the resolution, the mandate was
amended to include reporting on “instances where the abuse of the right
of freedom of expression constitutes an act of racial or religious discrimination.”121 Decrying the amendment as seriously undermining the
116. U.N. Human Rights Council, Summary Record of the 3rd Meeting ¶ 39, U.N.
Doc. A/HRC/6/SR.3 (Sept. 25, 2007).
117. Danish Cartoons ‘Plotters’ Held, BBC NEWS, Feb. 12, 2008, http://news.bbc.
co.uk/1/hi/world/europe/7240481.stm (last visited Apr. 7, 2008).
118. Dutch MP Posts Islam Film on Web, BBC NEWS, Mar. 27, 2008, http://news.
bbc.co.uk/2/hi/europe/7317506.stm (last visited Apr. 7, 2008).
119. U.N. Human Rights Council, Promotion and Protection of All Human Rights,
Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development ¶¶ 4(a)–(e), U.N. Doc. A/HRC/7/L.24 (Mar. 20, 2008).
120. Id.
121. U.N. Human Rights Council, Promotion and Protection of All Human Rights,
Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development ¶ 4C-bis, U.N. Doc. A/HRC/7/L.39 (Mar. 20, 2008). Council members voting in
favor of the Egyptian amendment were: Angola, Azerbaijan, Bangladesh, Cameroon,
China, Cuba, Djibouti, Egypt, Gabon, Ghana, Indonesia, Jordan, Madagascar, Malaysia,
Mali, Mauritius, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, the Russian Federation,
Saudi Arabia, Senegal, South Africa, Sri Lanka and Zambia. Those voting against were:
Bosnia and Herzegovina, Brazil, Canada, France, Germany, Guatemala, India, Italy,
Mexico, the Netherlands, Peru, Romania, Slovenia, Switzerland, Ukraine, the United
Kingdom and Uruguay. Bolivia, Japan, and South Korea abstained. After the adopion of
the Egyptian amendment, Cuba then introduced an oral amendment that would insert
language recognizing "the importance for all forms of media to repeat and to deliver information in a fair and [im]partial manner" into the preambular text of the resolution.
This amendment too was adopted despite the no-votes of Canada and fourteen other
council members. Press Release, United Nations, Human Rights Council Extends Mandates on Freedom of Opinion and Expression, Racism and Racial Discrimination, Somalia and Myanmar (Mar. 28, 2008), available at http://www.unhchr.ch/huricane/huri-
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377
mandate's focus, a number of countries, led by Canada, withdrew their
sponsorship of the resolution and abstained from the vote to renew the
mandate.122
These recent events reflect the continued entrenchment of both sides of
the debate;123 neither of these extreme positions capture the complexity
of the underlying issues. Human rights law provides a framework that
can accommodate this complexity.
In assessing the permissibility of restrictions on the freedom of expression, it is essential to consider the relevant context. In light of the prevalence of discrimination against Muslims in many Western countries, invocation of the right to freedom of expression in response to dissemination of material likely to further incite discrimination loses something of
its legitimacy and, indeed, its legality.124 While criminal sanctions may
be unwarranted, there are a variety of other means that may be employed
by states, including simple condemnation of the expression, explicit attempts to counter the message so disseminated, or the provision of civil
remedies.
At the same time, it is important to maintain the grounding of the human rights framework in human rights principles. For example, the scope
of protection of freedom of expression, while justifiably limited by the
human rights of others, should not turn on the propensity for hostility of
those offended by the expression. The latter is even less justifiable when
the offended group represents a majority population.
Of even greater concern is the attempt by the Human Rights Council to
rhetorically link religious defamation to human rights violations while at
the same time asserting the former as an independent basis for justifiably
restricting freedom of expression. At its most nefarious, the resolution
cane.nsf/view01/D6AAED437FC007C1C125741A0071E9CB?opendocument (last visited Apr. 7, 2008) [hereinafter U.N. Press Release].
122. U.N. Press Release, supra note 121.
123. See supra notes 6–10 and accompanying text (discussing the Swedish government’s invocation of the freedom of expression and the Human Rights Council’s condemnation of religious defamation as a human rights violation).
124. The position of a Muslim in Denmark vis-à-vis the Mohammed cartoons differs
significantly from that of a Muslim in Morocco. See Ben El Mahi v. Denmark, App.
No. 5853/06, Eur. Ct. H.R. (2006), http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documetId=812270&portal=hbkm&source=externalbydocnumber&table=F
69A27FD8FB86142BF01C1166DEA398649 (last visited Nov. 7, 2007). This decision
rejected on jurisdictional grounds the application of a Moroccan national living in Morocco who alleged that Denmark violated the Convention by allowing the Mohammad
cartoons to be published. Id. While the issue of defining minority status in an increasingly
globalized world is coextensively complex, the situation of the offended Moroccan remains somewhat less sympathetic.
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could be interpreted to enable states to suppress criticism of the exercise
of power by a dominant religious majority wholly in the name of defending human rights.
There are, of course, innumerable political factors that have influenced
the decision to create a battle. The purpose of this Article is merely to
illustrate that this battle results neither from any inadequacy in the
framework of international human rights law nor from fundamental disagreement over the values underlying human rights law.
THE CARTOON CONTROVERSY IN
CONTEXT: ANALYZING THE DECISION
NOT TO PROSECUTE UNDER DANISH LAW
Stéphanie Lagoutte*
INTRODUCTION
I
n September 2005, the publication of twelve cartoons in the daily
newspaper Jyllands-Posten started a small storm in the Danish me1
dia. A few months later, demonstrators around the world organized to
protest the cartoons. In Syria, Lebanon, and Iran, demonstrators acted out
against Danish embassies, making threats and setting fires.2 The storm
became a hurricane, and Denmark found itself in the middle of its biggest diplomatic crisis in recent memory. After a few weeks, the storm
abated. A mere nine months had passed since the cartoons’ initial publication when United Nations (“U.N.”) Secretary General Kofi Annan visited Denmark on June 18, 2006. In comments to journalists, he observed
that the page had turned in the cartoon controversy and consequently
journalists should forego examination of the past in favor of looking
ahead.3 Notwithstanding the need to avoid inflaming such controversies,
a concern that no doubt motivated Annan’s comments, it is equally, if not
more important, to scrutinize such stories to understand their mechanisms and trajectories prior to looking ahead and moving on.
Before unraveling the events of September 2005, it is necessary to
mention an important historical antecedent: Danish prosecution of Nazis
for blasphemy. In 1938, the High Court of Eastern Denmark (Østre
Landsret) confirmed the conviction of a number of Danish Nazis for
blasphemy under section 140 of the Danish Criminal Code for having,
among other things, distributed media that falsely stated that the Talmud
permitted Jewish men to force non-Jewish girls to engage in sexual inter* Stéphanie Lagoutte, Researcher at the Danish Institute for Human Rights. Doctor
in Law (University of Paris 1 Panthéon-Sorbonne, France), Ph.D. (Århus University,
Denmark). This Article builds on a paper presented to a panel discussion on the International Regulation of Expression, during the inaugural session of the United Nations
(“U.N.”) Human Rights Council (June 22, 2006), at the Palais des Nations, Geneva,
Switzerland.
1. See Flemming Rose, Muhammeds ansigt [The Face of Mohammed], JYLLANDSPOSTEN (Den.), Sept. 30, 2005, reprinted in PROFET-AFFÆREN [THE PROPHET AFFAIR] 14–
15 (Anders Jerikow & Mille Rode eds., Dansk PEN 2006) (reprinting the cartoons) [hereinafter THE PROPHET AFFAIR].
2. THE PROPHET AFFAIR, supra note 1, at 145–53.
3. DR1 21 O’clock News (DR1 television broadcast, June 18, 2006). DR1 is a TV
channel of the Danish Broadcasting Corporation, a public broadcasting company.
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course.4 This case was the last time a court handed down a criminal conviction for blasphemy in Denmark. It reflects a Denmark that protected
its minority population from abuses; this is all the more noteworthy because it took place at a time when anti-Semitism was widespread in
Europe.5
In contrast, returning to the cartoon controversy of 2005, Danish authorities were of the opinion that there was no legal basis for a response
to the Jylland-Posten’s controversial publication.6 From the perspective
of international human rights law, even though freedom of expression is
a human right protected by a number of international conventions, governmental restrictions on freedom of expression are permitted by international human rights law.7 However, tolerating interference with freedom
of expression is not the same as requiring such interference in order to
protect the freedom and rights of others. In other words, although Danish
authorities elected not to intervene in the cartoon controversy, they could
have, had there been a legal basis for doing so, without violating the international law provisions protecting freedom of expression. By the same
4. UfR 1938.419 Ø(L) (Den.) (judgment of the High Court of Eastern Denmark); see
Henning Koch, Ytringsfrihed og Tro [Freedom of Expression and Belief], in
GUDEBILLEDER: YTRINGSFRIHED OG RELIGION I EN GLOBALISERET VERDEN. ANTOLOGI.
[IMAGES OF GODS: FREEDOM OF EXPRESSION AND RELIGION IN A GLOBAL WORLD.
ANTHOLOGY.] 72, 76 (Lisbet Christoffersen ed., Tiderne Skifter 2006) (discussing
prevalence of anti-Semitism in Europe during World War II).
5. U.S. DEP’T OF STATE, REPORT ON GLOBAL ANTI-SEMITISM (Jan. 5, 2005),
http://www.state.gov/g/drl/rls/40258.htm (last visited Mar. 12, 2008).
6. See Statsminister Anders Fogh Rasmussen: Svar til 11 ambassadører [Letter from
Prime Minister Anders Fogh Rasmussen to the 11 Ambassadors] (Oct. 21, 2005), reprinted in THE PROPHET AFFAIR, supra note 1, at 28; Undenrigsminister Per Stig Møller:
Brev til Egyptens udenrigsminister [Letter from Foreign Affairs Minister Per Stig Møller
to the Egyptian Foreign Minister] (Nov. 8, 2005), reprinted in THE PROPHET AFFAIR,
supra note 1, at 34. Both letters reflect the Danish authorities’ refusal to use political
means to respond to the controversy. See also DPP Decision, infra note 9 and accompanying text (explaining the prosecutor’s decision not to prosecute).
7. See, e.g., International Covenant on Civil and Political Rights art. 19(3), opened
for signature Dec. 16, 1966, S. TREATY DOC. NO. 95-20, 999 U.N.T.S. 171 [hereinafter
ICCPR]. Article 19(3) states:
The exercise of [the right to freedom of expression] carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
Id.
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THE CARTOON CONTROVERSY IN CONTEXT
381
token, in refraining from such interference, the Danish authorities did not
violate any positive obligations under human rights provisions.8
More time must pass before it will be possible to document and understand exactly all the interests at stake and the various processes involved
in the cartoon controversy. The purpose of this Article is therefore simply to acquaint the reader with the Danish context, to explain the legal
implications of the crisis in Denmark, and to root out some of the popular
misunderstandings about both. It is not a goal of this Article to address
the international dimensions of the crisis. Among other important elements, it will instead show how the crisis originated in a misunderstanding of competing values such that a choice was made to advance one
value (freedom of expression) to the exclusion of certain others (nondiscrimination, respect for other religions, protection of minorities, etc.),
despite the fact that the Danish authorities, among them the Prime Minister, had a variety of solutions at their disposal for tackling the situation.
Even though the ultimate decision not to take action was not a direct violation of international human rights obligations, a choice more consistent
with Denmark’s historical commitment to the support and protection of
minorities probably could have been made.9
This Article explores the many components of the Danish cartoon controversy in an attempt to understand what really happened and has been
happening in Denmark since late 2005. Part I sets forth a brief factual
account of the genesis of the cartoon controversy. Part II then goes on to
discuss the legal framework for the controversy—both in Denmark and
internationally. Next, Part III looks at the Danish Director of Public
Prosecution’s decision not to bring criminal proceedings in response to
the cartoons’ publication. Finally, Part IV examines the emphasis placed
on freedom of expression in both the Danish and international arenas.
I. A BRIEF SUMMARY OF THE EVENTS IN DENMARK
The twelve drawings at issue were published by Jyllands-Posten, a major Danish newspaper, in an article called The Face of Mohammed on
September 30, 2005.10 In an excerpt from the article that appeared on the
8. See generally John Cerone, Inappropriate Renderings: The Danger of Reductionist Resolutions, 33 BROOK. J. INT’L L. 357 (2008) (discussing how international human
rights law can accommodate both freedom of expression and freedom of religion).
9. See Director of Public Prosecutions [DPP], Decision on Possible Criminal Proceedings in the Case of Jyllands-Posten’s Article “The Face of Muhammed,” No. RA2006-41-0151, Mar. 15, 2006, available at http://www.rigsadvokaten.dk/media/
bilag/afgorelse_engelsk.pdf [hereinafter DPP Decision].
10. See Anders Jerichow & Mille Rode, Forord [Foreward] to THE PROPHET AFFAIR,
supra note 1, at 9.
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front page, the newspaper reproduced one of the cartoons and explained
that the newspaper had invited members of the Danish Newspaper Illustrators’ Union to submit drawings of Mohammed “as they saw him.”11
This excerpt read in part: “Some Muslims reject modern, secular society.
They demand a special position, insisting on special consideration of
their own religious feelings. This is incompatible with secular democracy
and freedom of expression, where one has to be ready to put up with
scorn, mockery and ridicule.”12
The Face of Mohammed was set out in three columns surrounded by
the twelve drawings.13 The article, written by Flemming Rose, the newspaper’s cultural editor, was headed Freedom of Expression and drew attention to recent incidents in which authors engaged in self-censorship
(three were mentioned) to avoid provoking Muslims.14 In addition, the
article noted that during a meeting with the Prime Minister “an imam
urged the government to use its influence over the Danish media so that
they can draw a more positive picture of Islam.”15 The article opined that
such incidents reflected a desire of some Muslims for special treatment,
which presented a threat to the free exchange of ideas in the public forum.16 Although the article did not itself explain its choice to juxtapose
11. Flemming Rose, Muhammeds ansigt [The Face of Mohammed], JYLLANDSPOSTEN (Den.), Sept. 30, 2005, reprinted in THE PROPHET AFFAIR, supra note 1, at 14–16.
12. Id. at 14.
13. For reproductions of the page from the Jyllands-Posten, see id. at 15. For a description in English of the twelve drawings, see DPP Decision, supra note 9, at 2–3. See
also Joel Brinkley & Ian Fisher, U.S. Says It Also Finds Cartoons of Muhammad Offensive, N.Y. TIMES, Feb. 4, 2006, at A3.
14. Flemming Rose, Muhammeds ansigt [The Face of Mohammed], JYLLANDSPOSTEN (Den.), Sept. 30, 2005, reprinted in THE PROPHET AFFAIR, supra note 1, at 14–16.
15. “[E]n imam regeringen til at gøre sin indflydelse gældende over for danske
medier, så de kan tegne et mere positivt billede af islam.” See DPP Decision, supra note
9, at 2 (quoting and translating Flemming Rose, Muhammeds ansigt [The Face of Mohammed], JYLLANDS-POSTEN (Den.), Sept. 30, 2005, at KulturWeekend 3).
16. Id. (citing Flemming Rose, Muhammeds ansigt [The Face of Mohammed],
JYLLANDS-POSTEN (Den.), Sept. 30, 2005, at KulturWeekend 3). According to the DPP
Decision, the Flemming article stated:
De anførte eksempler giver grund til bekymring, hvad enten den oplevede frygt
hviler på et falsk grundlag eller ej. Faktum er, at den findes, og at den fører til
selvcensur. Der sker en intimidering af det offentlige rum. Kunstnere, forfattere, tegnere, oversættere og teaterfolk går derfor i en stor bue uden om vor tids
vigtige kulturmøde, det mellem islam og de sekulære, vestlige samfund med
rod i kristendommen.
Id. The translation reads as follows:
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THE CARTOON CONTROVERSY IN CONTEXT
383
the article with the Mohammed drawings, Denmark’s Director of Public
Prosecutions (“DPP”) ultimately stated that the basic assumption “must
be that Jyllands-Posten commissioned the drawings for the purpose of
debating, in a provocative manner, whether, in a secular society, special
regard should be paid to the religious feelings of some Muslims.”17
Reactions in Denmark were immediate. A few days after publication,
the illustrators at Jyllands-Posten received death threats.18 On October 5,
2005, a spokesman for various Danish Muslim associations19 appealed to
the diplomatic missions of Muslim states to take part in an official protest.20 Some of these associations issued a joint press release expressing
The cited examples give cause for concern, regardless of whether the fear experienced is founded on a false basis. The fact is that the fear does exist and
that it leads to self-censorship. The public space is being intimidated. Artists,
authors, illustrators, translators and people in theatre are therefore steering a
wide berth around the most important meeting of cultures in our time—the
meeting between Islam and the secular society of the West, which is rooted in
Christianity.
Id.
17. DPP Decision, supra note 9, at 6. However, the Jyllands-Posten article itself has a
much broader perspective:
Some Muslims reject modern, secular society. They demand a special position,
insisting on special consideration of their own religious feelings. It is incompatible with secular democracy and freedom of expression, where one has to be
ready to put up with scorn, mockery and ridicule. It is therefore no coincidence
that people living in totalitarian societies are sent off to jail for telling jokes or
for critical depictions of dictators. As a rule, this is done with reference to the
fact that it offends people’s feelings. In Denmark, we have not yet reached this
stage, but the cited examples show that we are on a slippery slope to a place
where no one can predict what self-censorship will lead to.
Id. at 2.
18. However, it was soon discovered that the threats had been sent by a seventeenyear-old boy who was mentally ill and could not be attributed to Muslim organizations.
See 17-årig Sigtet for Trusler [17-year-old Target of Threats], JYLLANDS-POSTEN
[JUTLAND POST] (Den.), Oct. 15, 2005, available at http://jp.dk/indland/article211610.ece.
19. The organizations in question were: the Islamic Faith Community (Islamisk Trossamfund), the Islamic Federation (Islamisk Forbund), and the Group of Muslim Immigrants Associations (Sammenslutningen af Muslimske Indvandrerforeninger). The Islamic Faith Community, the most prominent of the three organizations, has been called
“conservative.” ULLA HOLM, THE DANISH UGLY DUCKLING AND THE MOHAMMED
CARTOONS 1 (Danish Inst. for Int’l Studies 2006), http://www.diis.dk/graphics/
Publications/Briefs2006/uho_muhammed1.pdf.
20. Islamisk trossamfund m.fl.: Brev til muslimske ambassadører [Letter from the
Muslim Organizations to the Muslim Ambassadors in Denmark] (Oct. 5, 2005), reprinted
in THE PROPHET AFFAIR, supra note 1, at 18–19.
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their concerns and criticisms.21 The appeal to foreign diplomatic missions by the Danish-Muslim community is quite disturbing in itself; despite the variety of reasons that may have motivated the appeal, it leaves
the strong impression that, at the time, some representatives of the Danish-Muslim community did not think the Danish government would protect their interests as a religious minority. Moreover, the involvement of
foreign authorities in the crisis gave it all the dimensions of a diplomatic
crisis at a very early stage.
A week after this appeal, ambassadors from Muslim countries responded with a letter to the Danish Prime Minister denouncing an “ongoing smear campaign in Danish public circles and media against Islam
and Muslims” and requesting an urgent meeting.22 In addition to the cartoons, the ambassadors cited various episodes: a racist program on a Nazi
radio station, derogatory remarks against Muslims by a member of Parliament, and a statement by the Minister of Culture about the “war”
against Muslims.23 The Prime Minister responded in a letter that emphasized freedom of expression, religious tolerance, and the equality of all
religions in Denmark. 24 He explained that Danish law prohibited blasphemous and racist expressions and that potential victims could bring a
case before the Danish courts.25 Although he dwelled on the importance
of dialogue between cultures and religions in Denmark and the need for
international cooperation between Denmark and the Muslim world, he
made no mention of a meeting.26
In the following weeks and months, a debate about these events raged
in Denmark. The public debate took place on several levels: a legal discussion on the freedom of the press, freedom of religion, protection of
minorities, blasphemy and hate speech; a media-ethics discussion on the
role played by Jyllands-Posten; and a more general political discussion
on the place of the Muslim community and religion in general in Denmark.27 Various actors took part: politicians from both majority and op21. Islamisk Trossamfund i pressemeddelelse [Islamic Faith Community Press Release] (Oct. 11, 2005), reprinted in THE PROPHET AFFAIR, supra note 1, at 21–22.
22. Muslimske ambassadører: Brev til Danmarks statsminister [Letter from the Muslim Ambassadors to the Danish Prime Minister] (Oct. 12, 2005), reprinted in THE
PROPHET AFFAIR, supra note 1, at 24.
23. Id.
24. Statsminister Anders Fogh Rasmussen: Svar til 11 ambassadører [Letter from the
Prime Minister Anders Fogh Rasmussen to the 11 Ambassadors] (Oct. 21, 2005), reprinted in THE PROPHET AFFAIR, supra note 1, at 28.
25. Id.
26. Id.
27. See, e.g., Islamisk Trossamfund, Pressemeddelelse [Islamic Faith Community
Press Release], Vi Ønsker Værn Om Vores Borgerlige Rettigheder [We Wish to Protect
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THE CARTOON CONTROVERSY IN CONTEXT
385
position parties; scholars, journalists, and news commentators; Christian
Danes, resident Muslims, and Danish-Muslim citizens.28 One of the principal characteristics of the debate was its polarization: freedom of expression versus protection of minorities and Danish traditionalists versus
Muslim immigrants.29 The internationalization of the crisis only aggravated the polemics. It would take more time for a nuanced attitude to
enter the public debate.
II. THE LEGAL FRAMEWORK IN DENMARK
A. The International Legal Framework
Knowing now what happened in and around September 2005, it is important to examine the legal structures at play. As far as the international
legal framework is concerned, Denmark has ratified all major human
rights instruments, with only two exceptions: the Revised European Social Charter of 1996 and Protocol 12 to the European Convention on
Human Rights.30 The treaties that Denmark has signed, notably the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms,
contain substantive obligations to protect freedom of expression while
Our Civil Rights], reprinted in THE PROPHET AFFAIR, supra note 1, at 35–39 (listing a
number of concerns expressed by some Muslims in Denmark); Marianne Jelved, Om
Ytringsfrihed Endnu Engang [About Freedom of Expression One More Time], DET
RADIKALE VENSTRE [RADICAL PARTY WEEKLY LETTER] (Jan. 13, 2006), reprinted in THE
PROPHET AFFAIR, supra note 1, at 70–71 (describing Danish priests preaching tolerance
in various churches for the New Year 2006).
28. See Enhedslisten [Red-Green Alliance], Ytringsfriheden gælder for alle [Freedom
of Expression is for Everyone] (Dec. 3, 2005), reprinted in THE PROPHET AFFAIR, supra
note 1, at 41–43 (comments from various politicians and political parties); Rikke Hvilshøj, integrationsminister [Minister for Integration], Stop klyngeriet [Stop Whimpering],
POLITIKEN (Dec. 20, 2005), in THE PROPHET AFFAIR, supra note 1, at 58–59; Statsminister
Anders Fogh Rasmussen [Prime Minister Anders Fogh Rasmussen], Nytarståle [New
Year’s Speech] (Jan. 1, 2006), reprinted in THE PROPHET AFFAIR, supra note 1, at 63–64;
Pia Kjærsgaard, Frø af ugræs . . . Fjenden indefra har presset Danmark ud i en ustyrlig
situation [Seeds of Weeds . . . The Enemy Within our Borders Has Pressed Denmark into
an Uncontrollable Situation] (Jan. 6, 2006), reprinted in THE PROPHET AFFAIR, supra
note 1, at 65–68.
29. See 22 tidligere ambassadører Udtalelse [Press Release, 22 Former Danish Ambassadors Denouncing the Toughening of the Debate], POLITIKEN (Dec. 19, 2005), reprinted in THE PROPHET AFFAIR, supra note 1, at 57. See also supra notes 27–28.
30. Council of Europe, European Social Charter (Revised) May 5, 1996, Europ. T.S.
No. 163; Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 2000, Europ. T.S. No. 177.
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permitting states to limit that freedom in certain circumstances.31 Although Danish authorities at the time maintained that these obligations
did not permit remedial action on their part, in fact had they chosen to,
they would not have violated any obligation.32 The two instruments that
Denmark did not ratify are not directly implicated by the cartoon controversy but Denmark’s decision not to ratify them is symptomatic of recent
changes in Danish society that were a contributing factor in escalating
the tensions surrounding the Jyllands-Posten cartoons. More specifically,
these changes reflect a general skepticism of the Danish authorities regarding international human rights instruments. For example, concerning
Protocol 12:
the Danish government is very concerned at the increasing transferal of
legislative powers from the national parliaments to international nonlegislative bodies which cannot be seen as democratically elected organs. Upon ratification, the European Court of Human Rights would be
granted final jurisdiction in matters concerning whether Danish legislation is in compliance with Protocol No.12.33
This statement is especially surprising coming as it does from a country
that was one of the original state parties to the European Convention of
Human Rights and that has historically been active in the Council of
Europe.34
31. International Covenant on Civil and Political Rights arts. 19 & 20, opened for
signature Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; European Convention
for the Protection of Human Rights and Fundamental Freedoms arts. 10 & 17, Nov. 4,
1950, 213 U.N.T.S. 222 [hereinafter ECHR]. See Cerone, supra note 8, at 363–64 (discussing the interrelation between freedom of expression and other rights and obligations
under the ICCPR and the ECHR).
32. See Cerone, supra note 8, at 360.
33. See DANISH INST. FOR HUM. RTS., PROHIBITION OF DISCRIMINATION IN THE NORDIC
COUNTRIES: THE COMPLICATED FATE OF PROTOCOL NO.12 TO THE EUROPEAN CONVENTION
ON HUMAN RIGHTS 107 (Stéphanie Lagoutte ed., 2005).
34. On November 4, 1950, Denmark was among the first states to sign the Council’s
Convention for the Protection of Human Rights and Fundamental Freedoms. Council of
Europe, Convention for the Protection of Human Rights and Fundamental Freedoms
Chart, http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=7&DF
=2/28/2008&CL=ENG (last visited Feb. 28, 2008). Denmark was also one of the founding members of the Council of Europe, together with ten other Western European countries. Council of Europe, Statute of the Council of Europe Chart,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=001&CM=8&DF=2/28/2
008&CL=ENG (last visited Feb. 28, 2008). Since then, Denmark has signed and ratified
all the protocols amending and completing the European Convention on Human Rights.
See Charts of Ratifications of Protocols at Council of Europe, List of Treaties,
http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?MA=3&CM=7&CL=ENG
(last visited Mar. 13, 2008). Denmark has also signed and ratified major Council of
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THE CARTOON CONTROVERSY IN CONTEXT
387
B. The Danish Legal Framework
Two provisions of the Danish Criminal Code (“DCC”)35 are implicated
by the cartoon crisis: the hate-speech provision and the blasphemy provision. Section 266b(1)—the so-called racism and hate-speech provision—
states that
any person who, publicly or with the intention of wider dissemination,
makes a statement or imparts other information by which a group of
people are threatened, insulted or degraded on account of their race,
colour, national or ethnic origin, religion, or sexual inclination shall be
liable to a fine or to imprisonment for any term not exceeding two
years.36
Section 140—the so-called blasphemy provision—provides that “any
person who, in public, mocks or scorns the religious doctrines or acts of
worship of any lawfully existing religious community in this country
shall be liable to imprisonment for any term not exceeding four
months.”37 The object of protection of the hate speech provision, DCC
section 266b, is a group of people belonging to a majority or a minority
who are scorned or degraded, for example, on account of their religion.38
On the other hand, the blasphemy provision, DCC section 140, seeks to
protect religious feelings connected with religions doctrines and acts of
worship.39
Danish civil law provides little in the way of redress for victims of
blasphemy and hate speech. The blasphemy provision appears in the
chapter of the Danish Criminal Code concerned with prevention of public disorder, which reflects the fact that in Denmark an attack on religious beliefs is viewed as harming society at large (public order) and not
merely individual interests.40 Consequently, there is no civil liability provision that corresponds to the criminal provision on blasphemy. Likewise, there is no civil analog to the hate speech provision in DCC section
266b(1).
Europe human rights instruments. See, e.g., European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, Europ. T.S.
No. 126.
35. The Danish Criminal Code is called Straffeloven (“Strfl”). An English translation
of the Danish Criminal Code can be found in MALENE FRESE JENSEN ET AL., THE
PRINCIPAL DANISH CRIMINAL ACTS 9–74 (3rd ed. 2006).
36. Strfl. § 266b(1), translated in JENSEN ET AL., supra note 35, at 64.
37. Strfl. § 140, translated in JENSEN ET AL., supra note 35, at 45.
38. See Strfl. § 266b, translated in JENSEN ET AL., supra note 35, at 64.
39. See Strfl. § 140, translated in JENSEN ET AL., supra note 35, at 45.
40. Koch, supra note 4, at 74.
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There is, however, a civil liability analog to the criminal defamation
statute that could provide a private cause of action for both defamation
and insult.41 According to section 26 of the Liability for Damages Act,42
“[a] person who is responsible for the unlawful violation of another
party’s freedom, peace, honour or person shall pay the aggrieved party
compensation for injury to feelings or reputation.”43 Thus, a racist expression that also constitutes defamation could give rise to civil liability
if it fulfilled the requirements of section 26 of the Liability for Damages
Act. In particular, section 26 requires the aggrieved party to have suffered adverse effects, which would probably have been difficult to prove
in the case of the cartoon crisis.44
Because of the limited availability of civil remedies under Danish law
for blasphemy and hate speech, the prosecution becomes especially important as it is the only actor that can bring such a case before the Danish
courts.45 Consequently, if the prosecution refuses to press the case, it is
unlikely to be examined by any Danish court.46
III. THE DECISION NOT TO PROSECUTE
On March 15, 2006, a decision of the Danish Director of Public Prosecution (“DPP”) announced its conclusion that there was no basis for
criminal proceedings in response to the cartoon publication under either
41. Strfl. § 267, translated in JENSEN ET AL., supra note 35, at 64–65 (“Any person
who violates the personal honor of another by offensive words . . . or by making or
spreading allegations of an act likely to disparage him in the esteem of his fellow citizens
shall be liable to a fine or to imprisonment . . . .”).
42. Erstatningsansvarsloven [Liability for Damages Act], Consolidation Act No. 599
(Sept. 8, 1986) [hereinafter Liability for Damages Act].
43. Liability for Damages Act § 26 (“A person who is responsible for the unlawful
violation of another party’s freedom, peace, honour or person shall pay the aggrieved
party compensation for injury to feelings or reputation.”).
44. Building on the reasoning of the DPP under DCC section 266b, it can be argued
that the cartoons were either too specific (they picture the Prophet) or too general (they
picture no Muslims in particular). This view was later confirmed by the City Court of
Århus. This court examined a private application from a number of Muslim associations
based on the above-mentioned provisions, and the court ruled that the publication of the
drawings and the article did not reveal an intention to insult the applicants. These two
provisions required a direct link between the action and the victim; in this respect the
court did not believe that the Muslim associations themselves had been insulted. The
court also stated that the Muslim association could not show that it had a mandate to represent its members. See Århus City Court, Case No. BS 5-851/2006, in MENNESKERET I
DANMARK. STATUS 2006, at 111 (Danish Institute for Human Rights 2006) (Danish abstract of the unpublished decision) [hereinafter MENNESKERET].
45. See infra Part III.D.
46. See infra Part III.D.
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THE CARTOON CONTROVERSY IN CONTEXT
389
the blasphemy or hate-speech provisions in Danish law.47 This decision
resolved an appeal from the decision of the Regional Public Prosecutor
of Viborg declining, after an investigation, to prosecute a claim filed by a
private person with the Chief of Police in Århus. The decision of the
DPP not to prosecute was final.48 The following discussion summarizes
the DPP’s decision, explains why the DPP’s decision foreclosed judicial
consideration of the issues, and reflects on some of the DPP decision’s
main points.
A. The Decision Not to Prosecute Under the Blasphemy Provision
In analyzing the field of DCC section 140’s application, the DPP explained that the statute protects “religious doctrines or acts of worship,”
which covers both the internal and external religious life of a religious
community, i.e., the doctrines (a creed, if any, and the central texts of the
religion), institutions, practices, persons, and things (ritual acts, etc.)
through which the religious community expresses acts of worship. Relying on the legislative record of the statute, the DPP concluded, however,
that the statute did not protect religious feelings that are unrelated to the
religious community’s acts of worship, thus excluding doctrines of an
ethical or social nature. With respect to the element of “mockery or
scorn” required by the statute, the DPP concluded that it encompassed
expressions that convey either a lack of respect or contempt for the
scorned object. In other words, “mockery or scorn” covered expressions
of ridicule or contempt with a certain quantum of abuse. However, the
DPP again invoked the statute’s legislative record to conclude that “punishment can be incurred only in ‘serious cases.’”49
In applying the law thus explained to the facts, the DPP first concluded
that because there is no general and absolute prohibition against drawing
the Prophet Mohamed in Islam (although certain groups within the religion comply fully with the ban on his depiction), drawing the Prophet
could not itself constitute a violation of section 140 of the Criminal
Code.50 The DPP noted, however, that because some drawings were
more than a mere depiction of the Prophet—they were caricatures—
those drawings required an assessment of whether the caricature of such
a central figure in Islam implied ridicule of or contempt for Islamic religious doctrines and acts of worship; this required an analysis of the
47.
48.
49.
50.
DPP decision, supra note 9, at 9.
See infra Part III.D.
DPP decision, supra note 9, at 5.
Id. at 5–6.
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drawings vis-à-vis the accompanying text.51 The DPP concluded that
“the basic assumption must be that Jyllands-Posten commissioned the
drawings for the purpose of in a provocative manner to debate whether,
in a secular society, special regard should be paid to the religious feelings of some Muslims.”52 Consequently, according to the DPP, the caricature53 was “not an expression of mockery or ridicule, and hardly represents scorn within the meaning of [section] 140 of the Danish Criminal
Code.”54 The DPP essentially reasoned that scorn within the meaning of
section 140 is more serious, since it covers contempt and debasement.
Thus, even if the intention of the newspaper was to mock, ridicule, and
scorn, the means of expression did not reach a level serious enough to
warrant prosecution under DCC section 140.55
B. The Decision Not to Prosecute Under the Hate Speech Provision
The DPP’s analysis of the hate speech provision, DCC section 266b,
found that the dispositive inquiry was whether the article and the drawings “insult” or “degrade” a “group of people,” here Muslims, on account
of their religion.56
Confronting this question with respect to the text of the article first, the
DPP noted that the article did not refer to Muslims in general, but referred only to “some” Muslims, i.e., “Muslims who reject the modern,
secular society and demand a special position in relation to their own
religious feelings.”57 Although the DPP concluded that this subset was
within the meaning of “a group of people” as used in section 266b, he
nonetheless concluded that the article could not be considered scornful or
degrading towards this group, even when viewed in context with the
drawings.58
51. Id. at 6.
52. Id.
53. The only caricature that troubled the Director of Public Prosecution was one that:
show[ed] the face of a grim-looking man with a turban shaped like an ignited
bomb. . . . [because it was a] depiction of the Prophet Muhammad as a violent
person. This drawing must be considered an incorrect depiction if it is with a
bomb as a weapon, which in the context of today may be understood to imply
terrorism. This depiction may with good reason be understood as an affront and
insult to the Prophet who is an ideal for believing Muslims.
Id. at 7.
54. DPP decision, supra note 9, at 7.
55. Id. at 7–8.
56. Id. at 8.
57. Id. at 9.
58. Id.
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THE CARTOON CONTROVERSY IN CONTEXT
391
Next, the DPP considered whether the drawings themselves were insulting or degrading to Muslims. The DPP concluded that the drawings
depicted the Prophet Mohamed as a religious figure, but that none of
them intended to refer to Muslims in general because the drawings depicting individuals other than the Prophet did not contain any general
references to Muslims.59 For example, the DPP concluded that there was
no basis for assuming that the drawing that represented the Prophet with
a turban shaped like a bomb was intended to depict Muslims in general
as perpetrators of violence or even as terrorists.60 The DPP went on to
state more generally that even if the drawings’ depictions of Muslims
were considered in context together with the text of the article, there was
no basis to infer that they were scornful or degrading to Muslims at
large.61 Accordingly, the DPP found that there had not “been any violation of Section 266b of the Danish Criminal Code.”62
C. The Clarification of the Director for Public Prosecution
After analyzing these legal issues at length and determining that there
was no basis for instituting criminal proceedings in this case, the DPP
concluded with an unusual general statement. He noted that the provisions of the Danish Criminal Code on blasphemy and hate-speech, as
well as the provision concerning defamation of character, contain restrictions on the freedom of expression.63 Consequently, to the extent that
public expressions fall within the scope of these rules, there is no unrestricted right to express opinions about religious subjects.64 This comment in effect means that under existing law, it was misleading for the
Jyllands-Posten article to state that the right to freedom of expression is
incompatible with special consideration for religious feelings and that
people must tolerate “scorn, mockery and ridicule.”65 In light of the general debate, the DPP was making a broader point: freedom of expression
is not absolute in Denmark. Expression that is sufficiently scornful or
contemptuous will fall within the scope of one or the other of the two
provisions.66
59.
60.
61.
62.
63.
64.
65.
66.
Id.
DPP Decision, supra note 9, at 9. See also supra note 53 (describing the cartoon).
Id.
Id.
Id.
Id. at 10.
DPP Decision, supra note 9, at 10.
See id.
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D. The Central Role Played by the Prosecution
The blasphemy and hate-speech provisions invoked in the DPP decision belong to a list of offences that are considered important both with
respect to social order at large and in relation to civil liberties protected
by the Danish Constitution.67 Thus, according to the Administration of
Justice Act, violations of sections 140 and 266b are subject to public
prosecution only.68 Consequently, the decision not to prosecute put an
end to the legal controversy generated by the cartoons under Danish domestic law.
The Administration of Justice Act essentially ensures that the DPP’s
decision not to prosecute is, for all intents and purposes, final. Under the
Act, the regional public prosecutor in the first instance and the Director
of Public Prosecution on appeal play a central role in the procedure.69
Although the DPP hears appeals from decisions made by regional public
prosecutors in first instance,70 a decision by the DPP cannot be appealed
to the Minister of Justice.71 However, the Act does not give the Minister
of Justice authority in the first instance to issue orders to public prosecutors concerning the treatment of specific cases, including whether to
commence, continue, refrain from, or terminate prosecution.72
In addition, even though there is no appeal to the Minister of Justice
from the DPP’s decision, section 63 of the Danish Constitution provides
67. European Commission for Democracy Through Law (Venice Commission),
Questionnaire on Domestic Law Concerning the Prohibition of Blasphemy, Religious
Insults and Incitement to Religious Hatred, at 34–35, Study No. 406/2006, CDLFR(2007)002 (Mar. 8, 2007), available at http://www.venice.coe.int/docs/2007/CDLFR(2007)002-e.pdf [hereinafter European Commission for Democracy Through Law].
68. Administration of Justice Act § 719(2)(3), reproduced in Bekendtgørelse af lov
om rettens pleje [Notice of the Law on the Administration of Justice] (BK nr 1261 af Oct.
23, 2007), available at https://www.retsinformation.dk/Forms/R0710.aspx?id=105378
[hereinafter Notice of the Law on the Administration of Justice].
69. This is an exception to the normal rule, which is that the Chief of Police decides
whether to initiate criminal proceedings. See European Commission for Democracy
Through Law, supra note 67 at 34.
70. Administration of Justice Act § 99(3), reproduced in Notice of the Law on the
Administration of Justice, supra note 68.
71. Id. More generally, there is a principle in Danish administrative law according to
which there is only one opportunity for administrative appeal.
72. Administration of Justice Act § 98(2), reproduced in Notice of the Law on the
Administration of Justice, supra note 68. The instruction must be in writing and state the
reasons for the decision. Furthermore, the Speaker of the Parliament must be informed
(this safeguard was introduced in 2005). The potential for political interference in prosecutions and concrete cases has rightly been criticized by legal scholars, though actual use
of the provision is very limited. European Commission for Democracy Through Law,
supra note 67, at 35.
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THE CARTOON CONTROVERSY IN CONTEXT
393
for judicial review of the decisions of administrative authorities, including those of the Director of Public Prosecutions.73 The Ombudsman of
the Parliament is also competent to review such decisions.74 However,
their authority to review the discretionary authority of the DPP to prosecute under these provisions is limited. The Danish courts and the Ombudsman are only permitted to review the DPP’s decision for an abuse of
discretion, i.e., whether the criteria applied were legal or whether all
relevant criteria were included,75 but they may not evaluate how the DPP
balances these criteria in the exercise of his discretion.76
As a result of these features of the Danish legal system, namely the
lack of civil remedies77 and the broad, nearly unreviewable discretion of
the DPP, once the DPP made a legally sustainable decision not to prosecute (in the sense that the decision strictly but correctly follows Danish
precedent interpreting DCC sections 140 and 266b), no remedies—
whether administrative or judicial—were then available. Consequently,
the decision of the DPP concluded litigation in Denmark, foreclosed any
judicial consideration of the issue, and brought the legal discussion into
the international arena.78
E. Brief Comments on the Decision
Although the DPP’s decision was well received in Danish legal fora, it
deserves comment because the DPP chose to construe the Danish legal
framework in an exceptionally narrow way.
Generally speaking, a basic tenet of interpretation in criminal law is
that it should be interpreted narrowly. Following the principle nulla
73. Den. Const. art. 63(1) (providing that the courts of justice shall be empowered to
decide any question relating to the scope of the executive’s authority).
74. The Ombudsman Act, Act No. 473 (June 12, 1996), reprinted in THE DANISH
OMBUDSMAN 2005, at 50 (Hans Gammeltoft-Hansen & Jens Olsen eds., 2005).
75. Kaj Larsen, The Parliamentary Ombudsman, in THE DANISH OMBUDSMAN 2005,
supra note 74, at 57, 98.
76. Id. at 103.
77. Liability for Damages Act § 26. See also supra note 43. The Liability for Damage
Act § 26 is the civil pendant of DCC section 267. See Århus City Court Case Abstract, in
MENNESKERET, supra note 44, at 111.
78. A case was brought before the European Court of Human Rights, but the court
declined to hear the case on jurisdictional grounds. Ben El Mahi v. Denmark, App. No.
5853/06, Eur. Ct. H.R. (2006), http://www.echr.coe.int/echr/ (click “case-law” then
“HUDOC,” select “decisions” on the left hand column and search for the application
number) (finding no jurisdictional link between the applicants, Moroccans living in Morocco, and the defending state, Denmark).
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poena sine lege,79 judges should not broadly interpret criminal laws so as
to risk creating new offenses, which would violate fundamental human
rights norms.80 The DPP invoked this principle as reflected in the legislative record of the blasphemy statute:
[a]ccording to the legislative material and precedents, Section 140 of
the Danish Criminal Code is to be interpreted narrowly. Therefore the
affront and insult to the Prophet Mohammed, which the drawing may
be understood to be, accordingly cannot, with the necessary certainty,
be assumed to be a punishable offence under Section 140 of the Danish
Criminal Code.81
Other Danish cases that are comparable to the cartoon case suggest that
the modern practice has been to refrain from instigating prosecutions in
such cases. As mentioned in the Introduction to this Article, the last conviction under the blasphemy law occurred in 1938.82 Since then, two
cases have come before Danish courts—one in 1946 and the other in
1971—and neither resulted in a conviction.83 Since the middle of the
1970s, public prosecutors in Denmark have chosen not to press charges
in similar cases. For example, the most recent blasphemy case, brought
in 1985, concerned the owner of a restaurant in North Jutland who had
painted a crucified Jesus with an erection on the façade of his restaurant.84 In that case, the DPP stated that it was customary to avoid prosecuting alleged blasphemy offenses and that he saw no reason to diverge
from the general practice in that particular case.85 The case was appealed
to the Justice Ministry, and the Ministry responded that the proper course
of action would be to bring the case before a court in order to determine
79. The Latin translates as “no penalty without a law.” See BLACK’S LAW
DICTIONARY 1098 (8th ed. 1999).
80. The principle of the non-retroactivity of criminal law is one of the few nonderogable human rights. See, e.g., International Covenant on Civil and Political Rights
art. 4(2), opened for signature Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368; European
Convention for the Protection of Human Rights and Fundamental Freedoms art. 15(2),
Nov. 4, 1950, 213 U.N.T.S. 222.
81. DPP Decision, supra note 9, at 7.
82. See UfR 1938.419 Ø(L) (Den.) (judgment of the High Court of Eastern
Denmark); Koch, supra note 4.
83. See Gennemgang af Relevante Retsregler Mv [Review of Relevant Legal Regulations], BILAG 1 J.NR. RA-2006-41-0151 § 3.5 (Mar. 15, 2006) (DPP documentation discussing an unpublished 1946 case in which defendants were fined but not brought to
court and an unpublished 1971 case in which defendants were acquitted) [hereinafter
Mar. 15, 2006 Documentation].
84. See id. (discussing unpublished case file no. 133/85 in which the court concluded
that the action was moot because the painting had been taken down).
85. See Mar. 15, 2006 Documentation, supra note 83, § 3.5.
2008]
THE CARTOON CONTROVERSY IN CONTEXT
395
the scope of the blasphemy provision. However, the Justice Ministry decided not to reverse the DPP’s decision because the painting had already
been taken down and a separate case had been brought against the owner
of the restaurant alleging that the offending sign was in violation of city
planning rules, rendering prosecution under the blasphemy provision unnecessary.86
Although there is no disputed legal issue with respect to the DPP’s interpretation of the blasphemy statute in declining to prosecute in the cartoon controversy case, there is an important, albeit subtle, distinction between the strict, technical legal decision of the DPP and the Justice Ministry’s decision not to prosecute in the case just described. In the latter
case, the Justice Ministry was implicitly critical of the DPP’s decision,
but declined to interfere with established practice. It is exactly this nuance, that is political sensitivity to and indirect support for the sentiments
of the offended part of the population, that is absent in the cartoon controversy.
Unlike the blasphemy statute, the hate-speech provision has been the
subject of a rather more weighty legal discussion, especially with respect
to the gravity criterion.87 The definition of the hate-speech offense punishable by DCC section 266b contains the requirement that the statement
or dissemination of information should be threatening, mocking, or humiliating.88 The statute does not require the prosecution to present evidence that the subject of the alleged hate speech was actually aware of or
felt threatened, mocked, or humiliated by the statement.89 Consequently,
the statute requires an objective assessment of whether the statement in
the specific context can reasonably be expected to produce fear or feelings of mockery or humiliation. An element of intent must also be present, which is closely linked to the offending statement being presented
publicly and which requires that the perpetrator had the intention of
mocking, humiliating, or threatening a group when making the statement.90 When considered together with the fact that the test for whether
the content is “threatening, mocking or humiliating” is an objective one,
the assessment of intent will most often be linked to whether the perpetrator has realized that the statement could be perceived as “threatening,
mocking or humiliating” according to normal usage. Finally, based on
86. See id.
87. See DANISH INSTITUTE FOR HUMAN RIGHTS, BRIEF ON FREEDOM OF EXPRESSION
INSPIRED BY THE MOHAMMED DRAWINGS IN JYLLANDS-POSTEN 14 (2006),
http://www.cihrs.org/Act_file/PDF/85_1812200653621.pdf.
88. Strfl § 266b, translated in JENSEN ET AL., supra note 35, at 64.
89. Id.
90. Id.
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the legislative record for section 266b, it appears that the statement must
also meet a minimum requirement of gravity.91 For example, general
statements linking an ethnic group with serious types of crime usually
meet this gravity requirement.92 Although in Denmark it is generally
agreed that politicians who participate in public debates have wide freedom of expression when they make statements about controversial social
issues, the practice of the Danish courts has shown that these politicians
are not exempt from punishment.93 Because of the criterion of minimum
gravity, it can be assumed that, contrary to the practice concerning blasphemy,94 a statement that meets the level of gravity required by section
266b will amount to hate-speech, even in an artistic or satirical context.
Strictly speaking, the DPP’s decision not to prosecute under the hate
speech provision is more or less consistent with restrictive Danish judicial interpretation. However, it is regrettable that the DPP’s restrictive
interpretation excludes any reference to the broader socio-political context within which the Jyllands-Posten’s cartoons were published; this
approach would be in line with the practice of the International Committee on the Elimination of Racial Discrimination (“ICERD”) and of the
European Court of Human Rights.95 In this respect, it is problematic that
the DPP overlooked the views expressed by the ICERD in its decision
not to prosecute.96
91. See UfR 1988.788 V(L) (Den.) (judgment of the High Court of Western Denmark
in 1988).
92. See UfR 2004.734 H (Den.) (judgment of the Danish Supreme Court in 2004
concerning a Danish politician who had declared on his Web site that Muslims in Denmark perpetrated gross crimes and were a threat to ethnic Danes). See also UfR
2003.2559 Ø(L) (Den.) (judgment of the High Court of Eastern Denmark in 2003 concerning an anti-Semitic and Islamaphobic song posted to a Web site).
93. See UfR 2000.2234 H (Den.) (judgment of the Danish Supreme Court in 2000);
UfR 2004.734 H (Den.) (judgment of the Danish Supreme Court in 2004).
94. See Mar. 15, 2006 Documentation, supra note 83, § 3.5 (discussing the unpublished case file No. 133/85 concerning the Jesus painting).
95. See generally Cerone, supra note 8 (discussing the feasibility of reconciling freedom of speech with human rights principles under various human rights instruments).
96. The Danish Member of the U.N. Committee on the Elimination of Racial Discrimination and the director of the Danish Institute for Human Rights have suggested that
the DPP decision lacked a comprehensive analysis of the international human rights instruments (such as the ICERD) that are directly applicable in Danish law. Section 266b
was inserted in the DCC to bring Denmark into compliance with its obligations under the
ICERD. See Paragraf 266 b: Hvor Blev 266 b Af? [Paragraph 266b: What Has It Gotten
To?], POLITIKEN, Mar. 16, 2006, http://www.sf.dk/index.php?article=10803.
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THE CARTOON CONTROVERSY IN CONTEXT
397
IV. WHY THE EMPHASIS ON FREEDOM OF EXPRESSION?
As the above analysis shows, the Danish decision to refrain from
prosecution in the cartoon controversy is not especially problematic in its
interpretation of Danish law. That said, it may come as a surprise to
many that the legal proceedings were ended by an authority (the DPP)
under the auspices of the Ministry of Justice without any judicial consideration of the matter. Statements by the Prime Minister that offended
parties could always bring their claims before the Danish courts were
patently false;97 once the DPP declined to prosecute, the Danish courts
were precluded from hearing the case.
Returning to the debate surrounding the cartoons, the most striking
element was the emphasis on the allegedly absolute quality of freedom of
expression. Yet there are, as we have seen, provisions in the Danish
Criminal Code that criminalize some forms of expression. In addition,
the major international and regional human rights instruments call for
limitations on freedom of expression as well as its protection.98 Article
10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention of Human Rights”), which has
been incorporated into Danish law, states that the exercise of freedom of
expression “carries with it duties and responsibilities, [that] may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society . . . .”99
Within this well established legal context, the emphasis on the allegedly absolute character of freedom of expression in the early stages of
the cartoon controversy most likely reflects a political choice detached
from the legal and human rights issues at stake in the case. Not surprisingly, the consequences of this choice far exceeded its original context.
The exact motivations for choosing—consciously or not—such a strategy
will surely be analyzed in the future by political scientists and historians.
My purpose here is merely to provide some initial observations that may
help explain the events in Denmark in 2005 by placing them in a broader
Danish context.
97. See Statsminister Anders Fogh Rasmussen: Svar til Den Islamiske KonferenceOrganisation [Letter from the Danish Prime Minister Anders Fogh Rasmussen to the
Organization of the Islamic Conference] (Oct. 31, 2005), reprinted in THE PROPHET
AFFAIR, supra note 1, at 29; Statsminister Anders Fogh Rasmussen: Svar til 11 ambassadører [Letter from Prime Minister Anders Fogh Rasmussen to the 11 Ambassadors]
(Oct. 21, 2005), reprinted in THE PROPHET AFFAIR, supra note 1, at 28.
98. See Cerone, supra note 8, at 359–60.
99. Convention for the Protection of Human Rights and Fundamental Freedoms art.
10(2), Nov. 4, 1950, 213 U.N.T.S 222.
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It is true that freedom of expression is an important and fundamental
human right in both Denmark and the rest of Europe. According to the
case law of the European Court of Human Rights, “freedom of expression constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each individual’s
self-fulfillment.”100
The European Court of Human Rights applied this reasoning to overturn the Supreme Court of Denmark (Højesteret) in Jersild v. Denmark.101 The conduct of the Danish authorities and the socio-political
upheaval in the cartoon controversy may be understood as a consequence, in the form of a backlash, of this highly controversial decision.
In Jersild, the TV station DR (the only Danish public TV channel at that
time) broadcast a program in 1985 in which young men, the so-called
“Green Jackets,” expressed hateful and racist views about immigrants
living in Denmark.102 A private party, the Bishop of Aalborg, filed a
complaint against the young men, the program editor, and the journalist
who conducted the interview. In 1987, they were all convicted under the
hate speech provision in DCC section 266b.103 The journalist, Jens Olaf
Jersild, appealed the judgment to the Danish Supreme Court, which, in
1989, upheld the lower court’s judgment.104 In its judgment, the Supreme
Court underscored that freedom of expression, as one of the most fundamental freedoms, deserved the strongest possible protection.105 However,
the Court concluded that the journalist had abused this freedom by publicizing the young men’s offensive statements, especially because otherwise, it was unlikely that the young men would have had an audience.106
100. See, e.g., Handyside v. United Kingdom, App. No. 5493/72, 1 Eur. H.R. Rep. 737
¶ 49 (1976); Jersild v. Denmark, 298 Eur. Ct. H.R. (ser. A) at 23 (1994); Steel and Morris
v. United Kingdom, Eur. Ct. H.R., App. No. 68416/01, ¶ 87 (Feb. 15, 2005), available at
http://echr.coe.int/eng.
101. Jersild v. Denmark, 298 Eur. Ct. H.R. (ser. A) (1994). For some recent reflections
on the Jersild case by a former Danish judge of the European Court of Human Rights, see
Isi Foighel, Reflections of a Former Judge at the European Court of Human Rights, in
HUMAN RIGHTS IN TURMOIL 271, 271–74 (Stéphanie Lagoutte, Hans-Otto Sano & Peter
Scharff-Smith eds., Martinus Nijhoff 2007). See generally LENE JOHANNESEN, NEW
LIMITS: LEGAL COMMENT ON A CASE ABOUT FREEDOM OF EXPRESSION AND HATE-SPEECH
(Danish Centre for Human Rights 1996).
102. Jersild, 298 Eur. Ct. H.R. (ser. A) at 10.
103. Jersild, 298 Eur. Ct. H.R. (ser. A) at 15 (citing an unpublished decision of the
Københavns Byret [City Court of Copenhagen] dated Apr. 24, 1987).
104. UfR 1989.399 H (Den.) (judgment of the Danish Supreme Court in 1989).
105. Id.
106. Id.
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THE CARTOON CONTROVERSY IN CONTEXT
399
The European Court of Human Rights rejected the Danish Supreme
Court’s view and found that Denmark’s imposition of criminal sanctions
violated article 10 of the European Convention on Human Rights.107 The
European Court concluded that the journalist had simply done his job:
the program was informative, the context was not at all racist, and the
intent was to illustrate that some marginal groups had very racist views
on immigrants.108 For the European Court judges, the balance tipped in
favor of freedom of expression. This shocked the Danish legal world.
Judges and legal scholars thought that the Danish Supreme Court, sensitive to the Danish domestic context, was correct: the statements were
outrageous, and the young men and those who had promoted the statements deserved punishment.109 The outcome in the European Court never
gained acceptance in Denmark and as a result was misunderstood. As a
consequence, an egregious misinterpretation spread among the Danish
audience, namely that journalists could report anything in any way they
chose because there was no limit to their freedom of expression.
There are many differences between the Jersild case and the cartoon
controversy, one being that the latter never became an actual case. In
addition, there are two other important differences. First, publishing the
cartoons seems to have been designed as a provocation and not as a public information piece. If the newspaper had wanted to inform its readership about self-censorship based on the fear of reprisals by Muslims, the
journalists could merely have documented the alleged threats. Second, in
1985, the racist comments made by the young men outraged Danish citizens on a large scale.110 Cartoons offending the religious feelings of part
of the population more than twenty years later did not inspire the same
outrage.
In this new context, there were several ways the Prime Minister, the
government, and the newspaper could have reacted, yet they chose to
emphasize free expression to the exclusion of all other values as follows:
1) freedom of expression is absolute; 2) absolute freedom of expression
is a pillar of Danish society and culture, and therefore self-censorship is
unacceptable; 3) because freedom of expression is absolute, the Prime
Minister and government cannot criticize newspapers and journalists for
exercising it. Yet, as demonstrated above, freedom of expression in
Denmark is not absolute. Moreover, journalists often engage in selfcensorship, consciously or not; for a variety of reasons, journalists do not
107.
108.
109.
110.
Jersild, 298 Eur. Ct. H.R. (ser. A) at 24–26.
Id. at 19.
See Foighel, supra note 101, at 273.
Id.
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write or disseminate all of the information at their disposal.111 Finally,
the Prime Minister and members of the government can, of course, criticize the media and journalists. Such criticism is part of the democratic
process—it does not amount to interference with freedom of expression.
Indeed, this absolutism is troubling in light of its questionable legal
foundation and in light of other features of the broader Danish context,
which, when taken together, may indicate an environment that was inhospitable, if not implicitly hostile, to Muslims.
In the years preceding the cartoon controversy, the depiction of Muslims in the Danish media and in public debates had been, if not directly
negative, very often related to some kind of problem. In this respect, it is
important to recall that the various incidents mentioned by the eleven
ambassadors from Muslim countries in their letter to the Prime Minister
were already well known.112 In addition, for some years the media had
participated—more or less aggressively—in the ongoing over-exposure
of problematic issues purportedly of concern to Muslims: wearing of
scarves, circumcision, religious divorce, ritual slaughtering, forced marriages, honor killings, and so-called “re-education trips” for youngsters
to their parents’ countries of origins. These topics made for catchy headlines in the Danish media, often with very little documentation as to the
reality, accuracy, and extent of the issues.113 Moreover, despite a growing
Muslim population, at the time of the cartoon controversy there were no
publicly funded places of worship or cemeteries for Muslims in Denmark.114 Finally, Denmark had for some time been subject to criticism
111. See, e.g., Brinkley & Fisher, supra note 13 (describing U.S. newspapers’ decisions not to republish the cartoons).
112. Islamisk trossamfund m.fl.: Brev til muslimske ambassadører [Letter from the
Muslim Organizations to the Muslim Ambassadors in Denmark] (Oct. 5, 2005), reprinted
in THE PROPHET AFFAIR, supra note 1, at 18–19.
113. For a vivid description of the problems linked to the attitude of the Danish media,
see Council of Eur., Eur. Comm’n Against Racism and Intolerance, Third Report on
Denmark ¶¶ 89, 104–06, Doc. No. CRI(2006)18 (2005). In its report, the “ECRI urges
the Danish Government to give a more balanced view of issues pertaining to minority
groups and their role in Danish society.” Id. ¶ 107. It also “strongly recommends that the
Danish Government encourage and provide financial support to initiatives aimed at training journalists on issues pertaining to human rights in general and to racism and racial
discrimination in particular.” Id. ¶ 108. See also Danske forfattere [Danish Writers], Pas
På Tonen! [Watch Your Tone!] POLITIKEN, Oct. 15, 2005, reprinted in THE PROPHET
AFFAIR, supra note 1, at 54–56 (dwelling on the tone in the Danish media). Finally, on
the anti-Islamic rhetoric, see RUNE ENGELBRETH LARSEN & TØGER SEIDENFADEN,
KARIKATURKRISEN. EN UNDERSØGELSE AF BAGGRUND OG ANSVAR 24–33 (Gyldendal
2006) [hereinafter Larsen & Seidenfaden].
114. Concerning these issues, see Jørgen Bæk Simonsen, Constitutional Rights and
Religious Freedom in Practice. The Case of Islam in Denmark, in RELIGIOUS FREEDOM
2008]
THE CARTOON CONTROVERSY IN CONTEXT
401
and scrutiny regarding its legal treatment of foreigners, citizenship, and
discrimination on the grounds of ethnic origin.115 The toughening up of
the laws concerning foreigners or Danes with close ties to other countries
of origin raised concern and criticism, both nationally and internationally.116 Both the general climate in Denmark and the growing awareness
of international and national observers shows that the publication of the
cartoons did not occur in a vacuum. A context was already in place—one
that might have elicited a more nuanced and sympathetic reaction from
those in power.
CONCLUSION
The restrictive approach followed by the DPP in his decision excluded
any reference to the broader context within which the Jyllands-Posten’s
cartoons were published, and it did not question the motives of the newspaper in publishing these cartoons. This is regrettable, but it does not
necessarily mean that the decision of the DPP was legally incorrect. That
said, the narrow construction of Danish law that the DPP applied also
reflected its broader context because the outcome weighed so heavily in
favor of freedom of expression.
Human rights, like freedom of expression, should not be reduced to absolutes. International human rights law is also based on the central value
of respect for other human beings and on a common goal to ensure
peace.117 In this respect, the cartoon controversy seems to be less about
AND THE NEUTRALITY OF THE STATE: THE POSITION OF ISLAM IN THE EUROPEAN UNION 20,
26 (W.A.R. Shahid & P.S. van Koningsveld eds., 2002).
115. For instance, a statement made by a member of the Parliament likening Muslims
to pedophiles and rapists was reported to the police and the Prosecution service. See Mohammed Hassan Gelle v. Denmark, U.N. Doc. CERD/C/68/D/34/2004 (2006). During its
sixty-eighth session (Feb. 20–Mar. 10, 2006), the Committee on the Elimination of Racial
Discrimination concluded that Denmark failed to carry out an effective investigation to
determine whether an act of racial discrimination had taken place. Id. ¶¶ 7.1–7.6.
116. See Council of Europe, Office of the Commissioner for Human Rights, Report by
Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on His Visit to Denmark ¶¶ 1–
7, Doc. No. CommDH(2004)12 (July 8, 2004). This report strongly criticized the new
provisions concerning spouse reunification, family reunification for children, and the
general lack of precision in the new provisions of the Aliens Act. See also INSTITUT FOR
MENNESKERETTIGHEDER [DANISH INSTITUTE FOR HUMAN RIGHTS], UDREDNING NR. 1:
ÆGTEFÆLLESAMMENFØRING I DENMARK [ANALYSIS NO. 1: SPOUSE REUNIFICATION IN
DENMARK] 7–16 (2004) (reporting on the tightening up of the provisions of the Aliens
Act concerning family reunification in 2002 and 2003).
117. See Universal Declaration of Human Rights, G.A. Res. 217A, pmbl., U.N.
GAOR, 3d Sess., 183d plen. Mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR];
ICCPR, supra note 7, pmbl. Both of these sources dwell on human rights as the founda-
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the law and more about questions of decency, respect for others, and responsible behavior. At the time of publication, it seems that the political
climate in Denmark made the cartoons’ publication completely uncontroversial to the Danish authorities—to them, that freedom of expression
of the majority outranked the freedom of religion of the minority was
self-evident.
The ensuing international reaction shocked Denmark at large, but also
resulted in important changes. The crisis gave greater visibility than ever
before to Danish and non-Danish Muslims in Denmark.118 Within Denmark, the debate on Muslims, the role of the press, democratic values,
and the place given to religion in the public sphere forged new connections between these groups in Danish society. Public authorities undertook concrete initiatives concerning separate burial grounds for Muslims,
and in September 2006, Denmark’s first Islamic cemetery opened in a
suburb of Copenhagen.119 The media took steps to ensure more balanced
coverage of the Muslim community in Denmark.120
The Danish authorities’ insensitivity to the sentiments of the minority
and the hostile socio-political context in which the cartoons occurred
exacerbated the controversy and precipitated a diplomatic crisis. Although the decision not to prosecute the Danish newspaper was a relatively uncontroversial application of Danish law, had the Danish authorities exercised greater sensitivity, much of the crisis could have been
averted.
As is often the case concerning the relation between the state and religion,121 an open dialogue could well have defused the conflict. To para-
tion for peace in the world. See also UDHR, supra, pmbl. (insisting on the importance of
promoting the development of friendly relations between nations).
118. See generally Simonsen, supra note 114.
119. On September 22, 2006, Denmark’s first Islamic cemetery opened in Brøndby,
near Copenhagen. Islamic Cemetery Opens at Last, COPENHAGEN POST, Sept. 22, 2006,
http://www.cphpost.dk/get/98096.html. The two major building projects concerning
mosques in Denmark, close to the two largest cities, Århus and Copenhagen, are still
having trouble finding private funds. Byg En Moske I København [Build a Mosque in
Copenhagen], POLITIKEN, Feb. 1, 2006, http://www.dr.dk/Nyheder/Indland/2006/02/
01/074757.htm (last visited Apr. 7, 2008).
120. For instance, the Danish public TV station was quite exemplary in this respect. Its
coverage of Ramadan in 2006 provided much needed insight into the life of Muslim
families (Danes and foreigners) in Denmark during this holy event. See DR, Ramadankalenderen, http://www.dr.dk/DR2/Ramadan (last visited Mar. 13, 2008).
121. Concerning dialogue as a means to renew the relationship between state and religion in Europe, see Stéphanie Lagoutte & Eva Maria Lassen, Meeting the Challenge: Redefining Europe’s Classical Model for State Intervention in Religious Practices, 24
NETH. Q. HUM. RTS. 33, 57–59 (2006).
2008]
THE CARTOON CONTROVERSY IN CONTEXT
403
phrase the Director of English PEN, Jonathan Heawood,122 we must not
allow a choice between our commitment to freedom of expression and
our respect for religious and minority rights to be forced upon us. We
must all learn to conduct an argument, a debate, and most importantly, a
dialogue between all interested parties.123
122. See English PEN, About English PEN, Staff and Officers, http://www.englishpen.
org/aboutenglishpen/staffandofficers/ (last visited Feb. 29, 2008). PEN, a worldwide
association of writers with 145 centers in 104 countries, exists to promote friendship and
intellectual cooperation among writers everywhere, with the goal of protecting freedom
of expression and the integrity of world literature. See International PEN, Who We Are,
http://www.internationalpen.org.uk/ (last visited Feb. 29, 2008).
123. Jonathan Heawood, Publish and be Damned? Free Speech, Religious Hatred and
the C artoon Controversy, in THE PROPHET AFFAIR, supra note 1, at 277.
CONCEPTUAL DIFFICULTIES IN THE
EMPIRICAL STUDY OF BILATERAL
INVESTMENT TREATIES
Jason Webb Yackee*
INTRODUCTION
B
ilateral investment treaties, or BITs, have emerged as one of the
most remarkable recent developments in international law. In
BITs, two countries—often a developed country and a less-developed
country—extend legally binding promises to treat each other’s foreign
investors favorably. The first BIT, according to most observers, was
signed in 1959, and since that time BITs have multiplied at an extraordinary pace.1 The United Nations Conference on Trade and Development
(“UNCTAD”) calculates that there were fewer than two hundred BITs in
the 1980s; by 1998, there were at least 1700.2 Many of these BITs contain dispute settlement provisions that allow investors to initiate binding
international arbitration against the state hosting their investment. In
BIT-based arbitrations, arbitrators are empowered to make authoritative
statements on the content and application of important, contested, and
politically sensitive international legal principles, such as the amount of
* J.D., Ph.D. (Political Science); Assistant Professor, University of Wisconsin Law
School. This Article is based upon work supported by the National Science Foundation
under Grant No. 0418036. I may be contacted at [email protected]. © JWY
2007. Professor Susan Franck and Dr. Karl Sauvant provided helpful comments.
1. I show below that, as a conceptual and factual matter, this claim regarding the
“first” BIT is problematic. But it is sufficiently accurate to allow that year to serve as a
very rough guide to the start of the BIT era. See also infra Figure 3, note 84, and accompanying text.
2. UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT [UNCTAD],
TRENDS IN INTERNATIONAL INVESTMENT AGREEMENTS: AN OVERVIEW 22 fig.2, U.N. Doc.
No. UNCTAD/ITE/IIT/13 (1999) [hereinafter UNCTAD TRENDS IN INTERNATIONAL
INVESTMENT AGREEMENTS]; UNCTAD, BILATERAL INVESTMENT TREATIES IN THE MID1990S (1998) [hereinafter UNCTAD BITS IN THE MID-1990S] (“The total number of treaties signed by the end of 1980s jumped to 386 from a total of 167 at the end of the
1970s.”). In addition to these comprehensive reports, UNCTAD has published other important accounts of the growth of the BIT phenomenon. See, e.g., UNITED NATIONS
CENTRE ON TRANSNATIONAL CORPORATIONS [UNCTC], BILATERAL INVESTMENT
TREATIES (1988) [hereinafter UNCTC BILATERAL INVESTMENT TREATIES]; UNITED
NATIONS CONFERENCE ON TRADE AND DEVELOPMENT, BILATERAL INVESTMENT TREATIES
1959–1999, U.N. Doc. No. UNCTAD/ITE/IIA/2 (2000) [hereinafter UNCTAD BITs
1959–1999].
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compensation due under international law for government actions that
amount to an expropriation of the foreign investor’s property.3
As a result of the proliferation of BITs, there has been a proliferation
of international arbitration claims in which investors seek to recover
money damages from the states hosting their investments for alleged violations of international law. For example, arbitral tribunals organized
under the World Bank’s International Centre for the Settlement of Investment Disputes (“ICSID”), the frequent forum of choice in BIT-based
arbitration clauses, decided just twenty-six international investment disputes as of 1990; by 2007 ICSID tribunals had decided over 130 such
cases, with over 120 additional cases still pending.4 Argentina alone
faced international legal claims of approximately $16 billion in 2004,
roughly one percent of its gross domestic product (“GDP”) at the time.5
These developments have led to critiques of the BIT system6 and increased interest from empirically minded social scientists who have studied the causes and effects of the treaties. For example, Elkins, Guzman,
and Simmons have presented a sophisticated statistical model to support
their argument that developing countries enter into BITs as part of a rational “competition for capital.”7 Others have examined whether states
3. See Vicki Been & Joel C. Beauvais, The Global Fifth Amendment? NAFTA’s
Investment Protection and the Misguided Quest for an International “Regulatory Takings” Doctrine, 78 N.Y.U. L. REV. 30, 55 (2003).
4. ICSID was established by multilateral treaty in the 1960s as a specialized forum
to decide disputes between host states and investors. Convention on the Settlement of
Investment Disputes between States and Nationals of Other States, opened for signature
Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 [hereinafter ICSID Convention]. Information on the ICSID docket is available at http://icsid.worldbank.org/ICSID/Index.jsp.
5. Figures for legal claims pending against Argentina are those as of August 2004.
R. Doak Bishop & Roberto Aguirre Luzi, Investment Claims—First Lessons from Argentina, in INTERNATIONAL INVESTMENT LAW AND ARBITRATION: LEADING CASES FROM THE
ICSID, NAFTA, BILATERAL TREATIES, AND CUSTOMARY INTERNATIONAL LAW 425, 425
(Todd Weiler ed., 2005). For data on gross domestic product, see United Nations Statistics Division, http://unstats.un.org/unsd/cdb/cdb_country_prof_select.asp (select country
“Argentina” and profile “Economic growth, investment”) (last visited Apr. 9, 2008).
6. For example, Van Harten argues that BITs set up a legal system that benefits
business interests. GUS VAN HARTEN, INVESTMENT TREATY ARBITRATION AND PUBLIC
LAW (2007). Sornarajah provides a brief overview of the most important critiques. M.
SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN INVESTMENT 259–268 (2d ed. 2004).
7. Zachary Elkins, Andrew T. Guzman & Beth A. Simmons, Competing for Capital:
The Diffusion of Bilateral Investment Treaties, 1960–2000, 60 INT’L ORG. 811 (2006). See
also Deborah L. Swenson, Why Do Developing Countries Sign BITs?, 12 U.C. DAVIS J.
INT’L L. & POL’Y 131, 147 (2005) (“In some cases, if BIT signing is expected, it is likely
that investors may invest in the host country before the BIT signing takes place, since the
investors confidently anticipate that their [pre-BIT] investments will soon receive further
protections when the signing occurs.”).
2008]
CONCEPTUAL DIFFICULTIES
407
that enter into BITs tend to attract greater amounts of foreign investment.8 For example, Neumayer and Spess have suggested that developing states benefit from massive increases in foreign direct investment
(“FDI”) flows when they sign BITs with major capital-exporting states.9
Their findings are a powerful indication that international law matters to
investors, who, if the statistics are to be believed, give the presence or
absence of BITs great weight when making investment decisions.10
The purpose of this Article is to identify and draw attention to the conceptual difficulties implicit in empirical studies of BITs that have not yet
been adequately addressed. The goal here is modest but important. Quasi-experimental statistical studies of investment treaties, such as the studies by Elkins, Guzman, and Simmons and Neumayer and Spess cited
above, seek to confirm or disconfirm theoretical expectations through the
identification of empirical correlations between key variables. As the old
saw goes, correlation does not equal causation, and whether the former
really does confirm the latter depends in part on the internal validity of
the particular study and its measurements of the underlying theoretical
concepts. A statistical study may be described as internally valid if the
researcher has isolated the true cause of any observed correlation.11 Put
somewhat differently, internal validity requires that a study’s measurement techniques correctly identify the phenomena of theoretical interest
and control for plausible alternative explanations.12
The central claim developed below is that empirical BIT analysts have
so far done a relatively poor job of ensuring the internal validity of their
studies—that is, whether the ways they measure the BIT phenomenon
are sufficiently accurate and complete to capture the underlying theoreti-
8. See, e.g., Eric Neumayer & Laura Spess, Do Bilateral Investment Treaties Increase Foreign Direct Investment to Developing Countries?, 33 WORLD DEV. 1567
(2005).
9. Id. at 1582.
10. See id. However, several other studies do not support Neumayer and Spess’s conclusion that there is strong positive link between BITs and foreign investment flows. See
Jeswald W. Salacuse & Nicholas P. Sullivan, Do BITs Really Work? An Evaluation of
Bilateral Investment Treaties and Their Grand Bargain, 46 HARVARD INT’L L.J. 67
(2005); Marie Hallward-Driemer, Do Bilateral Investment Treaties Affect FDI? Only a
Bit . . . and They Could Bite 1–2 (World Bank, Policy Research Working Paper Series
No. 3121, 2003).
11. See EDWARD G. CARMINES & RICHARD A. ZELLER, RELIABILITY AND VALIDITY
ASSESSMENT 12 (1979) (“In a very general sense, any measuring device is valid if it does
what it is intended to do. An indicator of some abstract concept is valid to the extent that
it measures what it purports to measure.”).
12. See generally CARMINES & ZELLER, supra note 11; WILLIAM M.K. TROCHIM,
RESEARCH METHODS KNOWLEDGE BASE 171–190 (2d ed. 2001).
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BROOK. J. INT’L L.
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cal concept of interest. Analysts are not generally interested in the treaties simply as treaties, but as indicators of the degree to which states desiring foreign investment (“host states”) have used formal legal means—
particularly international law and international legal institutions—to
“credibly commit” to treat investors favorably.13 Postulating that BITs
are credible commitment devices relies on the premise that the treaties
are especially (and perhaps uniquely) effective at resolving what is said
to be the central problématique of foreign investment: an investment,
once made, cannot easily be undone, and the investor who relies on the
host state’s initial promises of favorable treatment risks being rudely surprised when the host state later demands to renegotiate the terms of the
original deal. This problem, sometimes described as one of “obsolescing
bargain,”14 is not simply a problem for foreign investors; it is also a prob13. See generally 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).
Guzman’s view of BITs as a commitment device is reflected in most subsequent empirical studies of the treaties, including Neumayer & Spess, supra note 8, and Elkins et al.,
supra note 7. It is also reflected in doctrinal studies of the evolution of BITs. See, e.g.,
Thomas W. Wälde, The “Umbrella” Clause in Investment Arbitration: A Comment on
Original Intentions and Recent Cases, 6 J. WORLD INVEST. & TRADE 183, 185–86 (2005)
(discussing BITs as part of a “culture of commitment”). Williamson’s influential work on
transaction cost economics provides the obvious inspiration for credible commitment
theories of BITs. See, e.g., OLIVER E. WILLIAMSON, THE MECHANISMS OF GOVERNANCE
377 (1996). Williamson defines a “credible commitment” as:
. . . a contract in which a promisee is reliably compensated should the promisor
prematurely terminate or otherwise alter the agreement. This should be contrasted with noncredible commitments, which are empty promises, and semicredible commitments, in which there is a residual hazard. Credible commitments are pertinent to contracts in which one or both parties invest in specific
assets.
Id. Williamson’s ideas also permeate the “political risk” literature and the much broader
literature on the institutional origins of economic growth. See, e.g., WITOLD JERZY
HENISZ, POLITICS AND INTERNATIONAL INVESTMENT: MEASURING RISKS AND PROTECTING
PROFITS (2002); DOUGLASS C. NORTH, INSTITUTIONS, INSTITUTIONAL CHANGE AND
ECONOMIC PERFORMANCE 50 (James Alt & Douglass North eds., 1990).
14. See RAYMOND VERNON, SOVEREIGNTY AT BAY: THE MULTINATIONAL SPREAD OF
U.S. ENTERPRISES 46–59 (1971); see also Jean Boddewyn, Early U.S. Business-School
Literature (1960–1975) on International Business-Government Relations: Its TwentyFirst-Century Relevance, in INTERNATIONAL BUSINESS AND GOVERNMENT RELATIONS IN
THE 21ST CENTURY 25, 36 (Robert Grosse ed., 2005). Obsolescing bargain theories of
foreign investor-host state relations have been subject to some recent and important criticism. See INTERNATIONAL BUSINESS AND GOVERNMENT RELATIONS IN THE 21ST CENTURY
315, pt. III (Robert Grosse ed., 2005). In my view, obsolescing bargain theory is most
vulnerable to attack on the grounds that it exaggerates the extent to which long-term contractual stability is either desirable or achievable and ignores the powerful role that repu-
2008]
CONCEPTUAL DIFFICULTIES
409
lem for host states that desire foreign investment. The host state that is
unable to convince investors that it will not unduly interfere with the investment’s profitability post-establishment will be denied investment or
will have to pay a risk premium for it. BITs resolve problems of credible
commitment by providing host states with a mechanism to make favorable substantive promises to investors (under the banner of international
law) and by linking them to certain procedural guarantees—in particular,
access to international arbitration—that allow the investor to enforce
those promises. The prospect of litigation encourages host states to honor
their promises to investors despite obsolescing bargain dynamics. Investors recognize that investments covered by BITs are relatively immune to
such dynamics and will accordingly be more willing to invest.15
To test credible commitment theories of BITs, analysts generally attempt to quantify the extent to which host states have credibly committed
to treat investors favorably with empirical data, such as the number of
signed BITS and the amount of FDI. For example, Neumayer and
Spess’s study counts the number of BITs that each developing country
has signed and looks for statistical correlations between the number of
BITs and foreign investment flows.16 Elkins, Guzman, and Simmons’s
study likewise counts the number of BITs entered into by competitor
countries and looks for correlations between the number of competitor
BITs and the probability that a particular state will sign its own BIT.17
To construct their counts of BITs, these analysts rely largely, if not
solely, on lists of treaties compiled by UNCTAD. UNCTAD has long
researched and promoted BITs, and in various publications it has presented comprehensive chronological listings of BITs signed to date.18
UNCTAD’s longstanding work documenting and analyzing the BIT phenomenon is significant, and its list of BITs may be adequate for certain
research questions. But, as I explain in detail below, the list is problematic for the research questions posed by most empirical BIT analysts.
My basic argument is that the persuasiveness—or the internal validity—of empirical studies of the causes and effects of BITs necessarily
depends on whether analysts have accurately and comprehensively identation plays in discouraging host states from treating foreign investors poorly. The latter
problem stems in particular from the tendency to focus on the individual transaction or
investment relationship, divorced from the larger context of the host country’s ongoing
and future relationships with other investors.
15. See VERNON, supra note 14, at 46–53; Elkins et al., supra note 7, at 812–14, 823–
24; Neumayer & Spess, supra note 8, at 1570–71.
16. Neumayer & Spess, supra note 8, at 1573.
17. Elkins et al., supra note 7, at 827–28.
18. See supra note 2 and authorities cited therein.
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BROOK. J. INT’L L.
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tified the relevant instances of credible commitment. When analysts rely
solely on UNCTAD’s count of BITs, their studies fail to identify all
sources of credible commitment that are theoretically likely to provide
the host state with a competitive advantage attracting foreign capital.
This is illustrated by two interrelated inquiries.
First, are the treaties that UNCTAD identifies sufficiently similar in
their theoretical capacity to perform as credible commitment devices?
Here, the inquiry is largely whether UNCTAD has gotten the treaty count
correct and for a variety of reasons the answer is no.
Second, has UNCTAD identified all of the theoretically relevant legal
devices by which states have sought to credibly commit to extend comparably favorable treatment to investors? My claim here is that analysts
relying on UNCTAD’s list of BITs have largely failed to recognize that
BITs are not the only formal legal means by which host states might
credibly commit to investor friendly policies. There are close equivalents
to BITs—primarily municipal law and investment contracts—that have
strong theoretical potential to act as reasonably comparable substitutes
for investment treaties.
In short, UNCTAD’s count of BITs provides a surprisingly misleading
picture of the scope of the phenomenon of law-based credible commitment, both generally and as to particular states. This critique is not aimed
at UNCTAD, however; it addresses scholarship that uses UNCTAD’s
treaty data uncritically by ignoring the treaties’ content or other sources
of credible commitment.
As I will demonstrate below, we should approach the statistical validity
of existing empirical analyses of BITs with a substantial grain of salt,
though this Article’s main point is not really a statistical one. It makes no
attempt to re-run existing statistical analyses, nor does it claim that key
correlations would fall out of or into statistical significance if these analyses were re-run. The main point is more fundamental: BIT analysts
need to convincingly link their abstract concepts to empirical indicators
of those concepts.19 Until they do, credible commitment stories of the
causes and consequences of BITs will remain far less persuasive than
they might be otherwise.
Section I of this Article provides a brief historical overview of FDI and
BITs in order to illustrate macro level trends over time. Section II places
BITs firmly in the credible commitment framework, arguing that BITs
that lack strong dispute settlement mechanisms have little theoretical potential to credibly commit developing countries to anything. Section III
presents an empirical examination of the dispute settlement provisions of
19. See CARMINES & ZELLER, supra note 11, at 10.
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CONCEPTUAL DIFFICULTIES
411
nearly one thousand BITs. Section IV discusses the importance of alternative policy instruments that may serve as substitutes for BITs and argues that the use of such instruments must be considered when determining the extent to which a host state has legalized its relations with foreign
investors. Section V concludes.
I. FOREIGN DIRECT INVESTMENT AND BITS: AN OVERVIEW
Developing countries have historically viewed foreign investment with
deep ambivalence. As then U.S. Assistant Secretary of State William L.
Thorp observed in 1948:
As engineers and technicians we are more than welcome; our skills are
eagerly sought; but as businessmen, as entrepreneurs, we are often not
so welcome. Sometimes we feel that at the same moment that our capital is sought, every obstacle is being put in the way of its use on a fair
and equitable basis.20
Mr. Thorp attributed this attitude to the perception of the foreign investor as an “exploiter and not a contributor”21—the foreign investor’s “interest is not in the local welfare, . . . his allegiance is to a distant stockholder, and . . . when he has won the highest return possible he and his
enterprise will withdraw.”22 Developing countries’ policies toward foreign investors reflect this ambivalence. They seek to encourage the right
kinds of foreign investment while also attempting to maintain the ability
to control and subjugate that investment to national development or regulatory priorities.23
The level of ambivalence ebbs and flows with time. In some eras,
when ambivalence shades into hostility, developing countries may emphasize subjugation over encouragement. In other eras, when ambivalence shades into affection, systems of control may be dismantled in order to attract more investment through an improved investment climate.
In this current era of seemingly relentless FDI promotion, FDI competition, and, perhaps not coincidentally, increasingly massive foreign capital flows, the idea of host state ambivalence toward foreign investment
20. L.H. Woolsey, The Problem of Foreign Investment, 42 AMER. J. INT’L L. 121, 121
(1948) (quoting Mr. Thorp’s commentary on foreign investment).
21. Id.
22. Id. (paraphrasing Mr. Thorp’s commentary on foreign investment).
23. This ambivalence is well illustrated in Moran’s influential study of the Chilean
experience with foreign investors in the copper industry. See THEODORE MORAN,
MULTINATIONAL CORPORATIONS AND THE POLITICS OF DEPENDENCE: COPPER IN CHILE 5–6
(1974).
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must seem rather strange.24 But not so long ago ambivalence, if not outright hostility, was the norm rather than the exception. After World War
II, and especially by the 1960s and early 1970s, analysts and policymakers in the Third World and their sympathizers in the First pushed Argentine economist Raul Prebisch’s ideas about the plight of the economic
periphery into a reasonably coherent set of propositions about the dependency of the Third World on the First.25 One of the chief villains in
the dependencia theory was the multinational corporation, whose investments, if left unchecked, would perpetuate a world system in which
the Third World would remain exploited and immiserated.26 The overall
mood was such that, by 1974, C. Fred Bergsten could plausibly claim:
Virtually every country in the world . . . is levying increasingly stringent requirements on foreign firms . . . . Few countries ask any longer
the simplistic question: “Do we want foreign investment?” The issue is
how to get foreign investment on the terms which are best for them,
and indeed how to use the power of the firms to promote their own national goals.27
Bergsten went on to warn that then current ideas about the proper role
of foreign investors in national development strategies would lead to investment wars in which host states would increasingly regulate and limit
the activities of multinational corporations.28
Like most grandiose predictions, Bergsten’s was quite wrong. What is
so surprising is how quickly it was wrong. By the early 1980s, developing and developed countries alike were having serious second thoughts
24. On the growth of FDI promotional efforts by developing countries, see Jacques
Morisset, Does a Country Need a Promotion Agency to Attract Foreign Direct Investment? A Small Analytical Model Applied to 58 Countries (World Bank, Policy Research
Working Paper Series No. 3038, 2003); Louis T. Wells & Alvin G. Wint, Foreign. Inv.
Adv. Serv., Marketing a Country: Promotion as a Tool for Attracting Foreign Investment
(Occasional Paper No. 20357) (2000). On the growth of FDI flows, see infra Figure 1.
25. See Jason Webb Yackee, Are BITs Such a Bright Idea? Exploring the Ideational
Basis of Investment Treaty Enthusiasm, 12 U.C. DAVIS J. INT’L L. & POL’Y 195, 203–06
(2005). Dependency theory was not so much a coherent theory as it was a collection of
“more or less articulate notion[s]” centered around the belief that the international division of labor between the rich “core” countries and the poorer “periphery” was the primary reason for third-world underdevelopment. MAGNUS BLOSTRÖM & BJÖRNE HETTNE,
DEVELOPMENT THEORY IN TRANSITION: THE DEPENDENCY DEBATE AND BEYOND: THIRD
WORLD RESPONSES 2 (1984). Dependency theorists argued that the “periphery” should
pursue a development strategy based on economic self-reliance rather than on deep linkages with the “core.” Id. at 76.
26. MORAN, supra note 23, at 3–15.
27. C. Fred Bergsten, Coming Investment Wars?, 53 FOREIGN AFF. 135, 136 (1974).
28. Id. at 151–52.
2008]
CONCEPTUAL DIFFICULTIES
413
about the wisdom of restricting and controlling foreign investment. In a
1985 article, Encarnation and Wells documented the rise of competition
for foreign investment among developing countries, in which there was a
growing trend towards investment incentives and away from investment
controls.29 Indeed, over the following years many developing countries
began dismantling the elaborate national controls of foreign investment
that had been painstakingly erected just a few years before; either causally or coincidentally, the volume of worldwide FDI flows has increased
by tremendous leaps and bounds.30 Figure 1 illustrates the trend.31 In real
terms as of the year 2000, the worldwide annual volume of FDI inflows
increased from its 1970 level by a factor of nearly forty-eight. It is also
striking that the bulk of the increased investment has gone to the most
developed countries.
15000
10000
5000
0
100 Million Constant Dollars
Figure 1. Annual FDI Inflows, World vs. Least Developed Countries
1970
1975
1980
1985
World FDI Inflows
1990
1995
2000
2004
LDC FDI Inflows
Source: World Bank World Development Indicators
29. Dennis J. Encarnation & Louis T. Wells, Jr., Sovereignty en Garde: Negotiating
with Foreign Investors, 39 INT’L ORG. 47 (1985).
30. See, e.g., Eduardo A. Wiesner, ANCOM: A New Attitude Toward Foreign Investment?, 24 U. MIAMI INTER-AM. L. REV. 435, 435–65 (1993) (documenting a loosening of
the Andean Community’s foreign investment regime).
31. Data for Figure 1 derives from the World Bank World Development Indicators,
available at http://www.worldbank.org/ (select “Index” and “Data and Statistics,” then
“Data” from the left-hand menu).
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BROOK. J. INT’L L.
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From a formal legal perspective, the most noticeable (and notable) aspect of the widespread change of heart regarding the value of FDI has
been the diffusion of BITs as an important means of attracting foreign
capital. Figure 2 below compares the cumulative number of BITs signed
from 1970 to 2001 to the number of new BITs signed annually.32
70
New Signed BITs
60
700
50
600
40
500
30
400
20
300
10
200
0
100
Cumulative Signed BITs
800
80
900
90
Figure 2. Cumulative and Annual Count of BITs Signed between Major
Capital-Exporting and Capital-Importing Countries
1970–2001
1970
1975
1980
1985
Cumulative Signed BITs
1990
1995
2000
Annual New Signed BITs
Source: UNCTAD 2000
32. Data for Figure 2 is compiled from UNCTC BILATERAL INVESTMENT TREATIES,
supra note 2; UNCTAD BITS IN THE MID-1990S, supra note 2; and UNCTAD BITs
1959–1999, supra note 2. I discuss the mechanics of counting BITs in much more detail
in the following Sections of this Article. Figure 2 includes BITs signed between the top
eighteen capital-exporting states and the remaining capital-importing or less-developed
countries (“LDCs”). The top eighteen capital-exporting states are Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Italy, Japan, the Netherlands, Norway, Singapore, Spain, Sweden, Switzerland, the United Kingdom, and the United States.
Historically these states have supplied between eighty-four and ninety-nine percent of
annual world FDI flows over the past thirty-some years. The preceding figures were generated from FDI data compiled by UNCTAD’s Division on Investment, Technology, and
Enterprise Development. See UNCTAD, Foreign Direct Investment Database,
http://www.unctad.org/Templates/Page.asp?intItemID=1923&lang=1 (last visited Mar.
11, 2008).
2008]
CONCEPTUAL DIFFICULTIES
415
The coinciding trends illustrated in Figures 1 and 2 suggest that current
interest in BITs is well justified. The rise to prominence of BITs demands explanation, as does the concurrent increase in FDI flows. Indeed,
the casual empiricist could be forgiven for asserting (or assuming) a
causal link between the two trends. While scientific query into questions
of cause and effect, origins, and consequences should not be abandoned,
it is nevertheless important to question how much we already know and
suggest additional points and problems to consider as empirical research
on BITs progresses. As I show in Sections II and III, future empirical
research that accounts for important procedural differences in the BITs is
a necessary first step in any empirical examination of them or their effects on investor behavior.
II. BITS, CREDIBLE COMMITMENT, AND THE IMPORTANCE OF
PROCEDURE
BITs are best understood as dual-function devices. On the one hand,
they provide states with a means of making what might be called “substantive” promises to treat investors well. On the other hand, they provide states with a means of making those substantive promises more
credible. Consequently, a threshold conceptual question for any empirical BIT analyst should be whether the treaties identified by UNCTAD
are sufficiently similar in terms of both the favorableness of the substantive promises extended to investors and the credibility of those promises.
The potential value of a given treaty to an investor will naturally depend
on the values given to these two logically separate parameters. A treaty
that advances wholly credible but relatively stingy substantive promises
is not necessarily more valuable to the investor than less credible promises of significantly more favorable treatment.
Analysts commonly assume that BITs’ substantive promises are indeed
both equivalently favorable and identically credible. The first assumption
is, with one major exception, not an entirely unreasonable one. The second assumption can be highly problematic.
Most BITs mimic, at least in broad strokes, the 1959 Draft International Convention on Investments Abroad (commonly known as the AbsShawcross Convention)33 and the Organisation for Economic Cooperation and Development (“OECD”) 1967 Draft Convention on the Protec-
33. For the text of the Abs-Shawcross Convention, see The Proposed Convention to
Protect Private Foreign Investment: A Round Table, 9 J. PUB. L. 115, 116 (1960).
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tion of Foreign Property.34 Because of their common origins, the language used and the subjects covered in different BITs appear remarkably
similar, both over time and across countries. For example, capitalexporting states have long been preoccupied with convincing host states
to provide certain generally applicable standards of treatment for established investments.35 BITs accordingly, and largely to a tee, promise that
investors shall be treated in any number of imperfectly distinguishable
ways. The most common examples include promises of “nondiscriminatory” treatment, treatment that is not “unreasonable” or “arbitrary,” “fair and equitable” treatment, treatment including “full protection
and security,” treatment as favorable as that provided to domestic investors (“national treatment”), and “most-favored-nation” (“MFN”) treatment.36 Investors have also long been concerned with maintaining their
ability to repatriate investment proceeds out of the host country and with
receiving compensation in the event that their property is expropriated.
Most BITs unsurprisingly contain somewhat more specific guarantees as
to both subjects.37
This set of promises forms what may be called the substantive core of
modern BITs. Recognizing this substantive core makes it possible to analyze the treaties as a conceptually cohesive group. That task is further
facilitated by the widespread promise of MFN treatment. A promise of
MFN treatment means that when a host state offers more favorable substantive promises to investors in a later BIT, those more favorable promises will automatically apply to investors covered by the first, less favorable BIT.38 The ubiquity of the MFN clause also makes it a largely useless and virtually impossible task for the analyst to construct any sort of
index of the relative substantive favorableness of the various treaties, just
as it makes it rather difficult for an investor to determine just what exactly has been promised.39
34. Organisation for Economic Cooperation and Development [OECD], Draft Convention on the Protection of Foreign Property, Oct. 12, 1967, O.E.C.D. No. 23081, reprinted in 7 I.L.M. 117 (1968) [hereinafter OECD Draft Convention].
35. See UNCTC BILATERAL INVESTMENT TREATIES, supra note 2, at 40.
36. These common BIT provisions are discussed in RUDOLF DOLZER & MARGRETE
STEVENS, BILATERAL INVESTMENT TREATIES 49 (1995).
37. Id. at 97–118.
38. OECD Draft Convention, supra note 34, at 1.
39. The difficulty is compounded by the fact that “MFN clauses do not have a universal meaning. Indeed, the formulation and application of MFN clauses varies widely
among investment treaties. . . . The proper application and interpretation of a particular
MFN clause in a particular case requires careful examination of the text of that provision
. . . .” OECD, Most-Favoured-Nation Treatment in International Investment Law 16
(OECD, Working Paper On International Investment No. 2004/2, 2004).
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U.S. BITs provide the principal exception to the general rule of substantive sameness. The point is tangential to the larger argument, but it is
worth emphasizing that U.S. BITs, unlike the BITs of other capitalexporting countries, consistently extend promises of favorable treatment
to investors at the pre-establishment (i.e., pre-investment) stage of the
investment process.40 Generally, this means that host states entering into
BITs with the United States promise to allow American investors to enter
the country and make an investment under the same procedures and on
the same terms as domestic investors or as the investors of other states—
a significant relinquishment of a host state’s well-recognized (and for
much of history, jealously guarded) sovereign right to exert largely absolute control over the entry of foreigners.41 And because promises of MFN
treatment usually apply only to post-establishment phases of the investment process, this particularly liberal aspect of U.S. BITs is not incorporated by reference into the treaties of other capital-exporting countries.
Analysts, especially those interested in the effects of BITs on FDI flows,
should adjust the conceptual weight of the value of signing or ratifying a
U.S. BIT as compared to signing or ratifying a BIT with another state.
Signing a U.S. BIT represents a substantively different commitment than
signing a BIT with other capital-exporting states.
The larger point, however, is that BIT promises, even if we assume
them to be equally favorable, are not equally credible. To see why, note
that if BITs have the capacity to function as credible commitment devices, it implies that something about the treaties makes them particularly unattractive—e.g., costly—for states to renege on favorable promises to investors. It has long been argued that in some instances treatybased promises may be self-enforcing in the sense that a breach of the
treaty will lead automatically, or nearly so, to the imposition of signifi-
40. For example, Article II(1) of the BIT between the United States and Uzbekistan
establishes that “[w]ith respect to the establishment [or] acquisition . . . of covered investments, each Party shall accord treatment no less favorable than that it accords, in like
situations, to investments in its territory of its own nationals or companies [national
treatment] or to investments . . . of a third country [most-favored nation treatment].”
Treaty Concerning the Encouragement and Reciprocal Protection of Investment, U.S.Uzb., Dec. 16, 1994, S. TREATY DOC. NO. 104-25 (1996). But most non-U.S. BITs “guarantee no right of access for capital or persons to the host state, they leave the home state
with unlimited discretion to prohibit or regulate outward investment flows, [and] the
obligation of the host state not to discriminate applies only after investment is established.” Kenneth J. Vandevelde, The Political Economy of a Bilateral Investment Treaty,
92 AM. J. INT’L L. 621, 630 (1998).
41. SORNARAJAH, supra note 6, at 97 (“The right of a state to control the entry of foreign investment is unlimited, as it is a right that flows from sovereignty.”).
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cant costs on the breaching state.42 In most cases those costs will be reputational—third parties will observe the breach and update their beliefs
about the breaching state’s willingness to honor its commitments.43 In the
case of foreign investment, the host state that breaches an investment
treaty can expect perceptions of its investment climate to worsen, making
it more difficult for the state to attract desired investment in the future.
The prudent host state will thus weigh the short-term benefits of breaching the treaty (say, for example, the domestic political benefits of seizing
a foreign-owned mining operation) against the long-term costs of forgone future foreign capital.
It is very difficult to argue, however, that the substantive promises contained in BITs are meaningfully self-enforcing. The difficulty arises from
the fact that these core substantive promises are relatively vague standards. What the promises of favorable treatment actually mean or how
they will apply in a given instance can be highly uncertain. This is particularly the case for the treaties’ generally applicable standards of treatment, which have been described as “otiose,”44 “vague and open to different interpretations,”45 and “offer[ing only] a general point of departure
in formulating an argument that the foreign investor has not been well
treated.”46
Even where the promise is relatively specific so that in theory an observer might be able to tell with a reasonable degree of confidence and
42. See generally Beth V. Yarbrough & Robert M. Yarbrough, Reciprocity, Bilateralism, and Economic ‘Hostages’: Self-Enforcing Agreements in International Trade, 30
INT’L STUD. Q. 7 (1986).
43. That reputation might play a role in promoting host state compliance with international obligations (investment related or otherwise) is an old and rather obvious idea. See,
e.g., Roy Preiswerk, New Developments in Bilateral Investment Protection (With Special
Reference to Belgian Practice), 3 REV. BELGE DR. INT’L 173, 195 (1967). Guzman provides a recent recycling of the idea. See Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823, 1840–71 (2002). The real question is
whether reputational concerns alone are sufficient to promote widespread compliance
with BIT obligations. Preiswerk takes the position that they are; my own views, as developed below, are much more skeptical.
44. SORNARAJAH, supra note 6, at 235–36.
45. Id. at 236.
46. P.T. MUCHLINSKI, MULTINATIONAL ENTERPRISES AND THE LAW 625 (1995).
Klebes, in a memorable turn of phrase, has suggested that the vagueness of BIT promises
renders the treaties mere “traités d’atmosphère.” Heinrich Klebes, Encouragement et
Protection des Investissements Privés Dans les Pays en Développement: Les Traites Bilatéraux de la République Fédérale D’Allemagne Dans Leur Contexte [Encouragement and
Protection of Private Investments in Developing Countries: The Bilateral Treaties of the
Federal Republic of Germany in Context] 594 (1983) (unpublished doctoral dissertation,
L’Université de Strasbourg) (on file with author).
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CONCEPTUAL DIFFICULTIES
419
without too much effort that if fact X has occurred then promise Y has
been breached, whether fact X did indeed occur will often be highly contestable. For example, the common guarantee of “prompt, adequate, and
effective” compensation in the event of expropriation can be surprisingly
difficult to apply to particular facts.47 Hiding behind even that modestly
specific rule of law lurk immensely important legal questions, such as the
proper application of expropriation law to government regulatory activity. That particular question has been left almost completely unaddressed
in most treaties and remains far from settled theoretically or jurisprudentially, creating enormous legal uncertainty and fostering a growing political backlash against investment treaties.48
This means that in most foreign investment disputes, save those arising
from the most obvious and egregious conduct, it will be quite difficult
for the parties or outside observers to determine whether or not a breach
of a given promise has objectively occurred. It is even difficult for international arbitral tribunals to consistently construe and apply BIT promises.49 And where a breach is not easily identified because of either legal
or factual uncertainty, reputational concerns are unlikely to dissuade the
host state from acting in ways that might objectively be considered contrary to its treaty or other international legal promises.50 The investor, of
course, is sure to claim the treaty has been violated, but the investor’s
self-serving rhetoric, like the host state’s own, should not be counted on
to reflect the true state of affairs, especially where it simply is not certain
what a particular promise actually means.51
47. See Albrecht Stockmayer, Bilateral Investment Promotion Protection and Treaties: A Model for Community Promotion of Mining Investment?, 4 J. ENERGY & NAT.
RESOURCES L. 247, 253–54, 256–57 (1985); Andreas F. Lowenfeld, Introduction to
EXPROPRIATION IN THE AMERICAS: A COMPARATIVE LAW STUDY 7 (Andreas F. Lowenfeld
ed., 1971).
48. See Been & Beauvais, supra note 3, at 55.
49. See Susan D. Franck, The Legitimacy Crisis in Investment Treaty Arbitration:
Privatizing Public International Law Through Inconsistent Decisions, 73 FORDHAM L.
REV. 1521, 1545–82 (2005).
50. As Douglas North has emphasized more generally, “the costs of measurement and
enforcement, discovering who is cheating whom, when free-riding will occur, and who
should bear the cost of punishing defectors make self-enforcement ineffective in many
situations.” NORTH, supra note 13, at 50. A major part of the difficulty arises from the
high costs of “measuring the multiple margins that constitute contract performance.” Id.
at 54.
51. I leave aside the possibility that what matters for reputational purposes is the mere
fact that the host state and a particular investor are publicly feuding. In that case, the existence of the dispute might be taken as powerful prima facie evidence of a poor investment climate, regardless of the objective merits of any associated legal arguments or of
the “true” factual state of affairs. The ultimate question is one of the informational value
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In light of this discussion, it is worthwhile to briefly address Guzman’s
more general argument (one that he has applied specifically to international investment law) that treaties are “[t]he most formal and reliable
international commitment” in large part because they “represent clear
and well-defined obligations of states.”52 This conclusion begs the question: treaties are the most formal and reliable international commitment
in comparison to what? For Guzman, the comparison is, for the most
part, between BITs and customary international law.53 It would be misguided to argue that BITs offer no improvement over customary international law in terms of what might be called the international legal coverage of investment issues. BITs typically contain many promises that have
never been incorporated into customary international law—promises to
permit investors to transfer funds out of the host country, promises of
MFN treatment, promises to recognize the subrogation rights of home
states, promises to refrain from imposing performance requirements on
investors, and so on.54 In an absolute sense, and as I have already argued,
these additional promises are typically framed in language that is far
from clear and precise. In a relative sense, it is quite difficult to argue
that customary law is less clear. Indeed, custom has nothing to say on
these topics; whatever obligations might exist would necessarily derive
from other sources, such as municipal law or investment contracts.
Even where BITs do treat topics traditionally covered by customary international law (such as expropriation), the treaties typically add little in
the way of meaningful content, clarity, or precision. Indeed, the United
States argues that the most important treaty promises, such as those requiring “prompt, adequate, and effective” compensation, “fair and equitable” treatment, or “full protection and security,” merely incorporate by
reference the same protections that were already available under custom.55 The position is not unreasonable. UNCTAD agrees that “[m]ost
of an investor’s (or its home state’s) public claims of breach. Given inherent legal and
factual uncertainties and strategic incentives to exaggerate and mislead, I assume that in
many cases most third-party observers will attach little value to rhetorical claims of
breach absent authoritative adjudication of the underlying claims.
52. Guzman, supra note 13, at 1873.
53. Id.
54. Jeswald W. Salacuse & Nicholas P. Sullivan, Do BITs Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain, 46 HARV. INT'L L.J. 67,
112–13 (2005) (discussing whether BITs represent lex specialis governing only the parties to the agreement or customary international law).
55. See Statement on NAFTA Article 1105 and the Availability of Arbitration Documents, NAFTA Commission (July 31, 2001), available at http://www.naftaclaims.com
/commission.htm. At the instigation of the United States, NAFTA’s Free Trade Commission issued a legally binding statement to “clarify” chapter 11’s promises that “‘fair and
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421
[BITs] tend to restate traditional principles of customary international
law with respect to the treatment of foreign property abroad.”56
The fundamental issue, then, is one of distinguishing between the existence of an obligation and its clarity of meaning or application. BITs certainly commit host states to something. That something appears to be
largely investor friendly, but what exactly the obligation will entail in
particular cases can be quite obscure. For that reason, it is not theoretically plausible to treat investment treaties’ core substantive promises as
meaningfully credible in and of themselves. Indeed, there is good reason
to suspect that investment treaties, by making broad and vague promises
to indiscriminate classes of investors, may make disputes even more likely.
What is theoretically necessary to render BIT promises credible is investor access to authoritative adjudication.57 It is through adjudication
that vague standards of treatment are given useful legal content58 and
inevitable factual disputes are resolved. International arbitration, as opposed to adjudication in municipal courts in the host state, is said to be
essential because investors typically assume that municipal courts in developing countries lack the technical competence or neutrality to adequately and fairly resolve foreign investment disputes.59 Wälde’s recent
and quite forceful statement of the point is worth quoting at length:
It is the ability to access a tribunal outside the sway of the host State
which is the principal advantage of a modern investment treaty. This
advantage is much more significant than the applicability to the dispute
equitable treatment’ and ‘full protection and security’ do not require treatment in addition
to or beyond that which is required by the customary international law minimum standard
of treatment of aliens,” and that the “minimum standard” of treatment imposed by
NAFTA was no more than that same customary standard. Id. It has long been recognized
that one of the primary aims of the U.S. BIT program has been to codify the United
States’ understandings of customary international law, particularly in regard to compensation for expropriation. See Kenneth J. Vandevelde, The Bilateral Investment Treaty
Program of the United States, 21 CORNELL INT’L L.J. 201, 208 (1988).
56. UNCTC BILATERAL INVESTMENT TREATIES, supra note 2, at 9.
57. See Douglas C. North, Institutions and Credible Commitment, 149 J. INST’L &
THEORETICAL ECON. 11, 21 (1993) (arguing that “creating the formal rules [and] creating
and implementing a judicial system that will impartially enforce such rules” is necessary
to solve credible commitment problems).
58. Indeed, some would say that by definition standards are given useful content after
the fact through adjudication. See Louis Kaplow, Rules Versus Standards, 42 DUKE L.J.
557, 621 (1992).
59. See Robert B. Shanks, Lessons in the Management of Political Risk: Infrastructure Projects (A Legal Perspective), in MANAGING INTERNATIONAL POLITICAL RISK 83, 93
(Theodore Moran ed., 1998).
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of substantive international law rules. The remedy trumps in terms of
practical effectiveness the definition of the right.
...
The effectiveness of substantive rights is everywhere—but nowhere
more so than in investment disputes—linked to the availability of an effective (i.e., independent) enforcement procedure. This link is so close
that the best way to emasculate an investor’s right against a Host State
is to sever the link between an international-law-based right and an international enforcement procedure and to compel the investor to seek
justice before domestic courts. Right and procedural remedy are, in
practical and effective terms, one.60
Assuming Wälde’s position is correct, the problem for BIT analysts is
that not all BITs provide such access—neither comprehensively nor with
absolute certainty. These extremely important differences in procedural
(or perhaps more properly, remedial) content suggest that BITs as potential credible commitment devices are not created equal, and some treaties
are likely to have far less value to investors than others.
Before presenting an empirical examination of differences in BIT dispute settlement procedures, let me add an important caveat. My basic
argument thus far—that procedural differences in BITs matter conceptually—is premised on the assumption that an MFN clause in a BIT that
does not contain an effective pre-consent to arbitration cannot be used to
take advantage of a pre-consent provided in another treaty. This is admittedly a delicate question and one that is subject to substantial debate;
nonetheless, an arbitral tribunal is unlikely to premise jurisdiction on an
MFN clause where the treaty otherwise provides the investor with no
right to unilaterally initiate arbitration as to the particular dispute at
hand.61
60. Wälde, supra note 13, at 190, 194 (emphasis added). Wälde is not alone in viewing access to arbitration as the “greatest innovation” of BITs. One arbitral tribunal has
observed:
The greatest innovation of ICSID and other systems directed at the protection
of foreign investments is precisely that the rights of the investors are not any
longer subject to the political and other considerations by their governments, as
was the case under the old system of diplomatic protection, often resulting in an
interference with those rights.
Enron Corp. & Ponderosa Assets L.P. v. Argentine Rep., Decision on Jurisdiction, ICSID
(W. Bank) No. ARB/01/3 (Aug. 2, 2004), ¶ 37.
61. See Jürgen Kurtz, The Delicate Extension of Most-Favored-Nation Treatment to
Foreign Investors: Maffezini v. Kingdom of Spain, in INTERNATIONAL INVESTMENT LAW
AND ARBITRATION: LEADING CASES FROM THE ICSID, NAFTA, BILATERAL TREATIES, AND
CUSTOMARY INTERNATIONAL LAW 523, 542–51 (Todd Weiler ed., 2005) (discussing a
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CONCEPTUAL DIFFICULTIES
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III. BITS AND DISPUTE SETTLEMENT: AN EMPIRICAL EXAMINATION
Differences in the procedural content of BITs hold potentially important and largely unappreciated62 theoretical significance for our understanding of BITs as credible commitments to treat investors favorably.
As demonstrated above, the treaties on UNCTAD’s list vary substantially
in terms of the procedural guarantees they offer investors.63 This Section
presents a systematic, empirical indication of the degree of variation using a four-fold classification scheme.64 I first describe each of the four
categories, then present Figures illustrating how the dispute settlement
content of BITs has changed over time.
1. Comprehensive, Effective Pre-Consents (“strong BITs”). BITs with
the greatest capacity to function as meaningful credible commitment devices are those that contain comprehensive, effective pre-consents to investor-initiated arbitration. In these truly modern treaties, each state
agrees in advance of any particular dispute to allow future investors to
number of ICSID arbitral decisions in which a party to a dispute invoked the MFN clause
in one treaty as the basis for a claim to expand the substantive protection of another
treaty and the need to reintroduce formal limitations on the ostensibly broad
language of the typical MFN clause); Luke Eric Peterson, Majority Frowns on Using
MFN Clause to Obtain Wider Arbitration Options, INV. TREATY NEWS (Int’l Institute
for Sustainable Development, Winnipeg), Jan. 11, 2008 (Can.), available at
http://www.iisd.org/pdf/2008/itn_jan11_2008/pdf.
62. That is, unappreciated by observers other than lawyers practicing in the field of
investment arbitration.
63. My results are compatible with those of Koremenos, though my methodology and
focus are different. Koremenos presents results from a study of the dispute settlement
provisions in a random sample of treaties of all types (i.e., not just investment treaties)
published in the United Nations Treaty Series (“UNTS”). See generally Barbara Koremenos, If Only Half of International Agreements Have Dispute Resolution Provisions,
Which Half Needs Explaining?, 36 J. LEGAL STUDIES 189 (2007). Koremenos finds that
among treaties containing dispute resolution provisions, fifty percent include arbitration
provisions. Id. at 190. But, it is important to note that her sample is drawn from UNTS
treaties between states, so she refers only to provisions providing for interstate arbitration, not arbitration between states and private parties. Virtually all of the BITs in my
dataset contain interstate arbitration provisions, though in practice they are very rarely
used. The well-known ELSI case, based on the interstate arbitration provisions in the
United States-Italy friendship, commerce and navigation (“FCN”) treaty, provides the
exception that proves the rule. Case Concerning Elettronica Sicula, S.P.A (ELSI) (U.S. v.
Italy), 1989 I.C.J. 15 (July, 20 1989). Very few developing countries reliably publish
their BITs in the UNTS, making the UNTS a poor source of information about treaties
involving such countries, which may impact the reliability of a BIT study. For a definition and detailed discussion of FCN treaties, see infra Section IV.B.
64. My classification scheme draws heavily on CHRISTOPH H. SCHREUER, THE ICSID
CONVENTION: A COMMENTARY 191–224 (2001).
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unilaterally initiate arbitration in the event of an investment dispute,
broadly defined, before particular arbitral tribunals. These pre-consent
clauses can be either explicit or implicit.65 The ICSID is a frequent forum
of choice for BIT pre-consents,66 although pre-consents may also permit
ad hoc arbitration (where the dispute is settled under custom-made rules),
semi-ad-hoc arbitration (where the dispute is settled under model rules of
international arbitration, such as those provided by the U.N. Commission
on International Trade Law),67 or privately organized institutional arbitration (such as through the International Chamber of Commerce).68 In
any of these cases, the host state will find it very difficult to convince an
arbitral tribunal to decline to authoritatively decide an investment dispute
once the investor has accepted the state’s standing treaty-based offer to
arbitrate.69 Arbitral tribunals tend to generously interpret pre-consents to
arbitrate,70 and given the very real possibility of an adverse default
award,71 states have an incentive to participate in proceedings. Just as
importantly, investors benefiting from a favorable arbitral award can reliably collect upon it, even in the face of host state intransigence, by
65. For example, an explicit pre-consent might provide that “Each Contracting Party
hereby consents to the submission of an investment dispute to international arbitration.”
SCHREUER, supra note 64, at 214 (quoting Accord entre la Confederation suisse et la Republique du Ghana concernant la promotion reciproque des investissements, Switz.Ghana, art. 12, June 15, 1999). Implicit pre-consents include those that contain “formulations to the effect that a dispute ‘shall be submitted’ to [arbitration] or that [the investor
has] the right to initiate proceedings.” Id. at 213. The German Model Agreement provides
a typical example: “If the divergency cannot be settled within six months . . . it shall, at
the request of the [investor], be submitted for arbitration. Unless the parties to the dispute
agree otherwise, the divergency shall be submitted for arbitration [to ICSID].” Id. (citing
German Model Agreement).
66. See MOSHE HIRSCH, THE ARBITRATION MECHANISM OF THE INTERNATIONAL
CENTER FOR THE SETTLEMENT OF INVESTMENT DISPUTES 22 (1993). A state that has ratified the ICSID Convention agrees to abide by ICSID’s rules and is eligible to use the
ICSID system to resolve investment disputes. Id. at 31. However, investors may not initiate arbitration against the ratifying state by merely ratifying the ICSID Convention. Id. at
21. Some further expression of state consent to arbitrate is necessary, thus creating a need
for consents in BITs, national law, or an investment contract. Id.
67. See generally ARON BROCHES, COMMENTARY ON THE UNCITRAL MODEL LAW ON
INTERNATIONAL COMMERCIAL ARBITRATION (1990).
68. International Chamber of Commerce [ICC], Welcome to ICC Dispute Resolution
Services, http://www.iccwbo.org/court/ (last visited Mar. 11, 2008).
69. See SCHREUER, supra note 64, at 219.
70. Id. at 212–13.
71. ICSID Convention, supra note 4, art. 45.
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CONCEPTUAL DIFFICULTIES
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bringing an enforcement action in the courts of third states in which the
host state might have assets.72
2. Limited, Effective Pre-Consents (“partial pre-consent BITs”). A certain number of BITs contain pre-consents of extremely limited scope.
These treaties offer the state’s consent to arbitrate only certain kinds of
disputes—typically disputes over the amount of compensation due in
cases of expropriation and sometimes disputes over the freedom to transfer investments and proceeds out of the host state.73 Completely excluded
are disputes relating to the treaty’s other substantive promises. The lacuna is conceptually significant for at least two reasons. First, and most
importantly, BITs derive much of their credible commitment power from
giving investors the ability to threaten the host state with litigation over
the meaning and applicability of vague substantive promises, like “fair
and equitable treatment,” in order to persuade the host state to abandon
or avoid a wide range of potential actions adverse to the investor’s interests.74 Excluding the possibility of litigation over such matters removes
the most important arrow from the investor’s quiver. Second, while protecting against the threat of uncompensated expropriation was the principal concern of investors of an earlier era,75 today the risk of such expropriation, as it is traditionally understood, is objectively slight.76 This sug72. The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the ICSID Convention both provide investors with powerful enforcement
tools. The New York Convention requires courts of contracting states to enforce international arbitral awards unless one of several strict conditions are met. Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, arts. III–V, June 10, 1958, 21
U.S.T 2517, 330 U.N.T.S. 3 [hereinafter New York Convention]. The ICSID Convention
requires the courts of contracting states to enforce ICSID awards as if they were final
judgments by a domestic court (e.g., with no possibility of collateral attack). See ICSID
Convention, supra note 4, art. 54. A recent example that illustrates how valuable these
enforcement provisions can be involves a German investor who won an investment treaty
award against the Russian government and was able to enforce the award by seizing “a
$40 million Russian-owned apartment complex in Cologne that once served as the local
KGB outpost.” David Crawford, Businessman vs. Kremlin: War of Attrition, WALL ST. J.,
Mar. 6, 2006, at A6.
73. These treaties typically involved Communist states. Many remain in force in the
post-Communist era, including BITs involving Russia and China. See Luke Eric Peterson, Interpreting Narrowly-Worded Arbitration Clauses in Soviet-era and Chinese BITs,
INV. TREATY NEWS (Int’l Institute for Sustainable Development, Winnipeg), Jan. 17,
2008 (Can.).
74. See Preiswerk, supra note 43, at 195.
75. Wälde, supra note 13, at 201.
76. Michael Minor, The Demise of Expropriation as an Instrument of LDC Policy,
1980–1992, 25 J. INT’L BUS. STUD. 177, 178 (1994) (discussing the decline in expropriations from the late 1970s through 1992). See also UNCTAD TRENDS IN INTERNATIONAL
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gests that treaties that provide guaranteed access to arbitration only for
expropriation disputes fail to cover the most common modern sources of
investor-state tension. While it is difficult to say precisely how much less
valuable these kinds of treaties are compared to those that offer investors
comprehensive pre-consents, presumably they are significantly less valuable.
3. Promissory Pre-Consents (“promissory BITs”). Pre-consent to investor-initiated, enforceable arbitration for a wide range of investment
disputes may seriously constrain a host state’s policy autonomy. For that
reason, a number of states have sought to limit their exposure to adverse
awards and to preserve a greater degree of policy autonomy vis-à-vis
foreign investors by offering carefully tailored promises to consent to
arbitration rather than actual pre-consents.77 As Schreuer suggests, the
difference between a consent and a promise to consent is legally quite
significant.78 When a state has promised to consent to arbitration in a
treaty, a refusal to actually consent when the investor so demands is indeed a breach of the treaty under international law. But in the face of
such a refusal, no matter how illegal, an international arbitral tribunal
will not exercise jurisdiction over the dispute because arbitral jurisdiction
always and necessarily depends on the actual consent of the parties.79
This much is quite clear. Less clear is whether the reputational costs of
breaching a promise to arbitrate will typically be so great that a promise
to consent is for all practical purposes of as much value to the investor as
an actual pre-consent. BITs incorporating promissory pre-consents are
arguably of significantly less credible commitment value to investors
than are treaties containing true pre-consents precisely because the invesINVESTMENT AGREEMENTS, supra note 2, at 17 & 18 fig.1 (nationalization and expropriation peaked in the 1970s).
77. For an excellent example of a promissory pre-consent, see article 11 of the
Agreement between Japan and the Democratic Socialist Republic of Sri Lanka Concerning the Promotion and Protection of Investment, which provides “Each Contracting Party
shall, at the request of the [investor], consent to submit any legal dispute . . . to conciliation or arbitration.” Agreement between Japan and the Democratic Socialist Republic of
Sri Lanka Concerning the Promotion and Protection of Investment, art. 11, Aug. 7, 1982,
1358 U.N.T.S 272.
78. SCHREUER, supra note 64, at 216.
79. But once consent has been given and accepted by the other party, it can be difficult or impossible for one party to withdraw its consent unilaterally. See ICSID Convention, supra note 4, art. 25(1) (“When the parties have given their consent, no party may
withdraw its consent unilaterally.”). This rule is what makes a BIT pre-consent effective—once offered by the host state and accepted by the investor, the host state cannot
meaningfully avoid its obligation to arbitrate at the investor’s choosing.
2008]
CONCEPTUAL DIFFICULTIES
427
tor cannot reliably count on the host state’s reputational concerns to ensure the investor’s access to arbitration once a major investment dispute
arises.
4. No Pre-Consent (“weak BITs”). Finally, many early BITs contain
no investor-state dispute-settlement provisions whatsoever. A handful of
these early treaties contain merely hortatory expressions of willingness to
consider arbitration.80 The lack of meaningful dispute settlement provisions means that these kinds of treaties have little, if any, theoretical potential to credibly commit host states to treat investors favorably, and
they are easily considered the weakest of the four kinds of treaties from a
credible commitment perspective.
Figure 3 illustrates the results of a comprehensive analysis of investorstate dispute settlement provisions in the BITs of the top eighteen most
significant capital-exporting states by FDI volume81 based on full-text
copies of the various treaties.82 Each BIT’s dispute settlement provision
is coded according to the four categories above.83 Any categorization
exercise inevitably raises a number of case-specific considerations of
often quite subtle distinction, but because Figure 3 is intended largely for
illustrative purposes of a general sort, a comprehensive discussion of
those difficulties or of their resolution has been omitted.84 In the vast majority of cases, treaty coding was straightforward.
80. For example, the Agreement on the Protection of Investments between the Kingdom of the Netherlands and the Socialist Federal Republic of Yugoslavia, signed on February 16, 1976, provides that the host state “shall give sympathetic consideration to any
request” by the investor to arbitrate a dispute. SCHREUER, supra note 64, at 217.
81. See supra note 32 for a list of the top eighteen capital exporting states.
82. In seven instances I was unable to obtain a full text of the relevant treaty. In each
of these cases I evaluated the treaty as containing an effective and comprehensive preconsent based on each treaty partner’s contemporaneous BIT practice, though the evaluation is at best an educated guess.
83. Where possible I evaluated each treaty’s content in its official language or as
professionally translated by the United Nations. Where a treaty was available only in a
language that I do not read (in nearly all cases Italian or German), a native speaker evaluated or translated the relevant passages.
84. For more details regarding the coding exercise, see Jason Webb Yackee, Sacrificing Sovereignty: Bilateral Investment Treaties, International Arbitration, and the Quest
for Capital (2007) (unpublished Ph.D. dissertation, University of North Carolina at Chapel Hill) (on file with author).
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900
Figure 3. Cumulative BITs in Force, Disaggregated by Dispute Settlement
Provisions, 1959–2002 (18 Capital-Exporting Countries)
700
200
300
400
500
600
Strong (In Force)
0
100
Cumulative # BITs Signed/In Force
800
UNCTAD (Signed)
1959
1963
1967
1971
1975
1979
1983
1987
1991
1995
1999
Signed BITs (UNCTAD 2000)
Strong BITs in Force
Partial Pre-Consent BITs In Force
Promissory BITs in Force
2003
Weak BITs in Force
The solid line in Figure 3 shows the cumulative number of signed BITs
through 1999 as listed on UNCTAD’s year 2000 list.85 By UNCTAD’s
count, there is a steady rise in the number of signed BITs beginning in
1959 (the year that Germany signed a BIT with Pakistan)86 up until the
85. UNCTAD’s list contains some obvious errors and omissions. Notably missing
from the UNCTAD list, for example, are a relatively large number of Germany’s early
BITs, including those with Kenya, the Philippines, Ghana, Colombia, and Chile. This
absence is puzzling because UNCTAD’s list includes other German BITs that failed to
enter into force, such as its 1964 BIT with Ethiopia. UNCTAD’s list also leaves out a
BIT-equivalent 1964 “exchange of letters” between Germany and India. For a comprehensive list and detailed discussion of these early German BITs, see generally Klebes,
supra note 46. UNCTAD’s list also curiously contains a number of French investment
guarantee treaties (“IGTs”) that provide rules relating exclusively to investments insured
by the French government and that do not contain the core protections contained in most
BITs. UNCTAD also includes a number of French “establishment” treaties with certain
states in the Communauté française d’Afrique (“CFA”). These treaties are very different
from the typical BIT.
86. The 1959 Germany-Pakistan BIT is the earliest BIT listed in UNCTAD’s various
lists of treaties. UNCTC BILATERAL INVESTMENT TREATIES, supra note 2, at 8. Empirical
studies of BITs also tend to treat the Germany-Pakistan BIT as the first treaty of interest.
2008]
CONCEPTUAL DIFFICULTIES
429
late 1980s and early 1990s, when a more dramatic increase is visible. A
comparison of UNCTAD’s aggregate count of signed BITs with a count
of BITs differentiated by category on the basis of dispute settlement provisions, including free trade agreements and friendship, commerce, and
navigation treaties (“FCN treaties”) with BIT-equivalent investment provisions, as reflected in Figure 3 suggests a much more complex series of
trends than the UNCTAD list alone.87 The following analysis focuses on
BITs that have entered into force, rather than on BITs that have merely
been signed (empirical BIT analysts usually use UNCTAD’s count of
signed BITs to create their measures of BIT-based credible commitment), for a number of practical and theoretical reasons.
As a practical matter, it can be difficult both for the investor and the
analyst to determine whether a signed treaty that has not entered into
force actually exists, and if it exists, what it might contain. States supply
copies of a signed treaty to the United Nations for publication in the
United Nations Treaty Series rather haphazardly and only after entry into
force (sometimes long after); they tend to publish the text of a treaty in
their national legislative gazettes only after ratification. It is only very
recently that capital-exporting states—and rarely developing countries—
have begun to post reasonably up-to-date, comprehensive, and accessible
lists of their BITs online. Even in these cases, links to the treaty text may
not be provided, especially if the treaty is not yet ratified or in force.88
See, e.g., Neumayer & Spess, supra note 8, at 1569. A number of commentators have
repeated the assertion that the Germany-Pakistan treaty is the “first BIT” or the “first
modern BIT.” See, e.g., Jeswald W. Salacuse, BIT by BIT: The Growth of Bilateral Investment Treaties and Their Impact on Foreign Investment in Developing Countries, 24
INT’L LAW. 655, 657 (1990); Charles N. Brower & Jeremy K. Sharpe, Notes and Comments: International Arbitration and the Islamic World: Third Phase, 97 AM. J. INT’L L.
643, 647 n.30 (2003); SORNARAJAH, supra note 6, at 204 n.1.
87. For a definition and detailed discussion of FCN treaties, see infra Section IV.B.
Most FCN treaties are essentially weak BITs because they contain no investor-state arbitration provisions. As discussed in the next Section, UNCTAD’s list ignores these multilateral treaties. I have also corrected for the obvious mistakes discussed supra note 85.
88. ICSID has sponsored a loose-leaf collection of BITs that does an admirable job of
obtaining and publishing the texts of the earlier treaties, but the collection’s coverage of
later treaties is quite spotty and incomplete. See INVESTMENT PROMOTION AND
PROTECTION TREATIES, Binder Series I–VII (Int’l Center for Settlement of Inv. Disputes
ed., Oceana Publications 2002). UNCTAD has recently developed an on-line
repository of BIT texts, though important gaps in the collection remain, especially for
treaties between developing countries, recently signed treaties, and treaties that are
no longer in force. See UNCTAD, Investment Instruments On-line Database,
http://www.unctad.org/Templates/Page.asp?intItemID=3775&lang=1 (last visited Mar.
11, 2008).
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More theoretically, treaties that have been signed but that have not entered into force have minimal credible commitment potential. My review
of the texts of the various treaties suggests that almost all BITs provide
that they shall not enter into force until some period of time after ratification by the parties to the treaty.89 By itself, the act of signing a BIT neither creates an obligation to ratify the instrument nor establishes the signing parties’ consent to be bound by the treaty.90 Consequently, when a
treaty has not entered into force, its substantive and procedural provisions are unlikely to have any legal force. Most critically for the foreign
investor, arbitral tribunals are unlikely to accept jurisdiction on the basis
of a treaty-based state pre-consent when the treaty has been signed but is
not yet in force.91
What makes Figure 3 most interesting is its illustration that the BIT
phenomenon—understood as one of credible commitment through the
entry into force of “strong” BITs—began a decade later than is commonly recognized. The first BIT to enter into force that contained a fullfledged arbitral pre-consent was a 1969 treaty between Italy and Chad.92
Germany’s 1959 treaty with Pakistan, which UNCTAD credits as the
first BIT, contains no investor-state dispute settlement provisions of any
89. As a general matter, whether a treaty must be ratified before entering into force
depends on whether the parties to the particular treaty intend it to be subject to domestic
ratification procedures. Vienna Convention on the Law of Treaties art. 14, May 23, 1969,
1155 U.N.T.S. 331. My review of BIT texts, described in more detail below, suggests
that the vast majority of the treaties explicitly state that they shall be subject to ratification prior to entry into force.
90. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 582–83 (6th ed.
2003).
91. UNCTAD, Many BITs Have Yet to Enter into Force, at 6, U.N. Doc.
UNCTAD/WEB/ITE/IIA/2005/10 (Nov. 2, 2005). The study notes, for example, that
none of Brazil’s fourteen BITs, nor any of Colombia’s four BITs, have entered into force.
More generally, the study notes that as of 2004, of 2392 signed BITs, 674 had not entered
into force; of those, more than 300 had been signed more than five years earlier suggesting that their prospects for eventual entry into force are slim. Id. at 1. Countries in some
geographic regions were more unlikely to have ratified their signed BITs than those in
other geographic regions. Id. at 4. For example, only forty-four percent of African BITs
had entered into force, a percentage significantly lower than the equivalent figures for
other regions. Id. at 4.
92. Accord entre le Gouvernement de la République Italienne et le Gouvernement de
la République du Chad en Vue de Protéger et de Favoriser Les Investissements de Capitaux [Agreement between the Government of the Italian Republic and the Government of
the Republic of Chad with the Aim of Protecting and Promoting Capital Investments] art.
7, June 11, 1969, reprinted in INVESTMENT LAWS OF THE WORLD, at Binder I (Int’l Center
for Settlement of Inv. Disputes ed., Oceana Publications 2002).
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CONCEPTUAL DIFFICULTIES
431
kind.93 Figure 3 also demonstrates that the BIT phenomenon—again,
understood as the entry into force of strong BITs—was much more modest in scope in the 1970s and 1980s than is typically assumed. For example, the number of in-force strong BITs remained under one hundred until 1990, and throughout most of the 1980s the majority of BITs in force
did not contain strong dispute settlement provisions.
Figure 3 also shows that a fair number of weak BITs remain in force.
Truly weak BITs—those containing no effective investor-state dispute
settlement provisions—are not atypical. Since the mid-1970s at least one
hundred weak BITs entered into and remain in force. Also, a significant
number of in-force BITs contain pre-consents of the markedly inferior
“expropriation only” type (sixty-six to be exact). Finally, BITs with
promissory pre-consents are relatively rare. In 2002, only twenty-eight of
these kinds of treaties were in force, and capital-exporting states were
especially prone to use them. For example, six of Japan’s nine BITs contain promissory pre-consents, as do ten of Australia’s eighteen BITs.94
Figure 4 considers in more detail the BIT programs of France and
Germany.95 Historically, both states have been very important sources of
investment capital.96 Moreover, France and Germany were at the forefront of the BIT phenomenon as UNCTAD identifies it, signing large
numbers of treaties in the 1960s and 1970s. But, few, if any, of these
states’ early treaties contain comprehensive, effective pre-consents to
arbitration. It is particularly striking to note that German investors did
not enjoy the protections of a modern BIT until 1988 when Germany’s
treaty with Nepal entered into force.97 This is striking precisely because
it is so often claimed that Germany initiated the BIT phenomenon, and
93. See Treaty for the Protection of Investment, W. Ger.-Pak., Nov. 25, 1959, 457
U.N.T.S. 23. Regarding UNCTAD’s credit to this treaty as the first BIT, see also supra
note 86 and authorities cited therein.
94. Australia’s eighteen BITs are listed in Yackee, supra note 84, at 241. Australia’s
BITs generally contain a comprehensive, effective pre-consent to ad hoc arbitration, but
only if Australia and its treaty partner have not joined the ICSID Convention. See, e.g.,
Agreement between the Government of Australia and the Government of the Republic of
Indonesia Concerning the Promotion and Protection of Investments art. XI(3), July 29,
1993, 1770 U.N.T.S. 302. Where they both have done so, the ad hoc option disappears,
and the investor’s sole option is to seek ICSID arbitration. Id. at art. XI(4)(a). With respect to ICSID arbitration, each state party to the treaty promises only that it “shall consent in writing to the submission of the dispute to the Centre within forty-five days of
receiving such a request from the investor.” Id.
95. For clarity of presentation, Figure 2 does not include French and German BITs
that contain promissory or partial pre-consents. Doing so adds only six BITs to each
state’s count.
96. Elkins et al., supra note 7, at 818.
97. UNCTAD BITs 1959–1999, supra note 2, at 58.
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the success of its early BIT program was regarded with something approaching jealousy.98 In fact, however, measured by the presence of
comprehensive, effective pre-consents, Germany’s BIT program appears
to be neither first nor substantively very important. Indeed, over the entire period of study, France had more strong BITs in force than Germany.
100
125
Figure 4. Cumulative Number of Signed BITs versus Strong BITs in
Force, Germany and France 1959–2002
75
Germany - Signed
50
France - Signed
25
France - Strong
0
Germany - Strong
1959 1962 1965 1968 1971 1974 1977 1980 1983 1986 1989 1992 1995 1998 2001
Signed French BITs (UNCTAD 1999)
Strong French BITs in Force (Author)
Signed German BITs (UNCTAD 1999)
Strong German BITs in Force (Author)
Figure 5, below, presents the data from a somewhat different angle. It
compares the annual number of LDCs with at least one strong BIT in
force against the annual number of LDCs with no strong BITs in force,
beginning with Chad’s 1969 treaty with Italy.99 Figure 5 provides further
98. See supra note 86 and authorities cited therein (regarding the Germany-Pakistan
BIT as the first BIT). Germany’s early success in convincing developing countries to
enter into BITs has been cited as an important impetus for the United States government’s decision to revamp its own BIT program in the late 1970s. See, e.g., Vandevelde,
supra note 55, at 208. The basic U.S. concern seems to have been that Germany’s treaties
gave German investors a competitive advantage over their U.S. counterparts. See id.
99. Accord entre le Gouvernement de la République Italienne et le Gouvernement de
la République du Chad en Vue de Protéger et de Favoriser Les Investissements de Capitaux, supra note 92.
2008]
CONCEPTUAL DIFFICULTIES
433
evidence that strong BITs did not become a numerically significant phenomenon until the late 1980s and early 1990s. Until 1993, a majority of
capital-importing states had not entered into a strong BIT with a major
capital-exporting country. But by the end of the sample (2002), 117 out
of 149 developing countries—seventy-nine percent—had at least one
strong BIT in force.
Figure 5. LDCs with One Strong BIT in Force vs. No Strong BITs in
Force
125
100
# LDCs
75
50
25
0
1968
1973
1978
1983
Year
1988
At Least One Strong BIT In Force
1993
1998
2003
No Strong BITs in Force
Source: Author's Dataset
IV. THE NEED TO CONSIDER BIT-EQUIVALENT MEANS OF CREDIBLE
COMMITMENT
The previous Section demonstrates that how analysts count BITs has
important consequences for understanding both the timing and scope of
the BIT phenomenon, understood as one of treaty-based credible commitment. There are a number of additional reasons to be wary of exclusive reliance on UNCTAD’s list of BITs for theoretically driven empirical inquiry. These additional problems stem from UNCTAD’s focus on
treaties that are bilateral and that deal exclusively with investment.
UNCTAD’s limited focus is theoretically problematic because it fails to
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reflect the extent to which alternative policy instruments can act as reasonably effective substitutes for BITs.100
A. The Irrelevancy of Bilateralism
That an investment treaty is bilateral rather than multilateral is not
relevant to the treaty’s potential value as a credible commitment device.
While it is true that the most ambitious attempts to create investment
treaties of worldwide scope have failed,101 there are important multilateral success stories. Chapter 11 of the North American Free Trade
Agreement (“NAFTA”) is the most well known example.102 Other noteworthy examples include the Association of Southeast Asian Nations’
(“ASEAN”) Agreement for the Promotion and Protection of Investments,103 the Colonia Protocol for the Reciprocal Promotion and Protection of Investments in MERCOSUR,104 and chapter 17 of the 1994 free
trade agreement between Colombia, Venezuela, and Mexico.105 The mul100. In fairness to UNCTAD, the organization certainly recognizes that BITs are not
the only international agreements of potential relevance to investors, and many of its
publications conjointly discuss and analyze BITs along with a broader class of international investment agreements.
101. See, e.g., OECD, Multilateral Agreement on Investment Draft Consolidated Text,
Apr. 22, 1998, available at http://www1.oecd.org/daf/mai/pdf/ng/ng987r1e.pdf. Multilateral Agreement on Investment negotiations began in 1995 and were discontinued in
April 1998. The draft consolidates the text of the agreement considered in the
course of the negotiations. See OECD Multilateral Agreement on Investment,
http://www.oecd.org/document/22/0,2340,en_2649_201185_1894819_1_1_1_1,00.html.
102. North American Free Trade Agreement ch. 11, U.S.-Can.-Mex., Dec. 17, 1992,
32 I.L.M. 289 (1993) [hereinafter NAFTA].
103. The original parties to the 1987 ASEAN agreement were Brunei Darussalam,
Indonesia, the Philippines, Singapore, and Thailand. See Agreement among the Government of Brunei Darussalam, the Republic of Indonesia, Malaysia, the Republic of the
Philippines, the Republic of Singapore, and the Kingdome of Thailand for the Promotion
and Protection of Investments, Dec. 15, 1987, 27 I.L.M. 612. Laos, Myanmar, and Vietnam later joined as well. See Framework Agreement on ASEAN Investment Area, Oct. 7,
1998, available at http://www.aseansec.org/12815.htm.
104. Protocolo de Colonia para la Promoción Recíproco de Inversiones en el
MERCOSUR [Colonia Protocol for the Promotion and Reciprocal Protections of Investments in MERCOSUR], Mar. 26, 1991, available at http://www.sice.oas.org/
Trade/MRCSR/colonia/pcolonia_s.asp. MERCOSUR, Mercado Común del Sur or the
Southern Common Market, is comprised of Argentina, Brazil, Paraguay, and Uruguay.
See www.sice.oas.org.
105. Tratado e Libre Comercio entre los Estados Unidos Mexicanos, la República de
Columbia y la República de Venezuela [Free Trade Treaty between the Mexican United
States, the Republic of Colombia and the Republic of Venezuela] (ACE No. 33),
Ch. XVII, June 13, 1994, available at http://www.sice.oas.org/Trade/go3/
G3INDICE.ASP. Venezuela denounced the treaty in 2006. Comunicado de Prensa, Go-
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CONCEPTUAL DIFFICULTIES
435
tilateral 1994 Energy Charter Treaty (“ECT”) is also significant because
it regulates energy-sector investments (broadly defined) among over fifty
states.106 Analysts are hard pressed to justify the exclusion of these multilateral treaties from their samples since it is beyond cavil that these treaties offer investors substantive and procedural promises that are formally
and functionally equivalent to those provided in modern BITs.
There are more difficult cases. Take, for example, the 1982 League of
Arab States’ Treaty for the Investment of Arab Capital in Arab States,
which has been signed by twenty-two states and ratified by twenty.107
While the tone and content of this particular agreement are undeniably
less investor friendly than modern BITs, the treaty does offer investors
(sometimes carefully hedged) promises of MFN and national treatment,
freedom to transfer investment proceeds, the right to “fair” compensation
in the event of non-discriminatory expropriation, and the right to “compensation . . . equivalent to damages” in the event the host state breaches
the treaty.108 The treaty also offers investors the option to bring suit
against a breaching host state before the Arab Investment Court, a specialized dispute settlement body that came into being in 1988.109 Whether
this multi-lateral agreement should or should not be considered a BIT
equivalent need not be answered definitively here; the larger point is that
the careful analyst will need to carefully consider whether it should be
counted as one for the particular analysis at hand.
bierno Bolivariano de Venezuela Ministerio de Relaciones Exteriores, Venezuela Formalizo Denuncia del G-3 [Press Release, Bolivarian Government of Venezuela Ministry of
Foreign Relations, Venezuela Formally Denounces G-3] (May 31, 2006), available at
http://www.mre.gov.ve/Noticias/A2006/comunic-142.htm.
106. Final Act of the European Energy Charter Conference, Dec. 12, 1994, 34 I.L.M.
373. For more information about the ECT, see www.encharter.org/index.jsp.
107. For a copy of the Arab League treaty, see 2 UNCTAD’s INTERNATIONAL
INVESTMENT INSTRUMENTS: A COMPENDIUM 211 (1996). The treaty has been signed by
Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Oman, Qatar, Saudi Arabia, Syria, Somalia, Sudan, Tunisia, the United Arab
Emirates, and Yemen, and has been ratified by all of these states except Algeria and Comoros. Id.
108. League of Arab States’ Treaty for the Investment of Arab Capital in Arab States
in 2 UNCTAD’s INTERNATIONAL INVESTMENT INSTRUMENTS: A COMPENDIUM 211, supra
note 107, art. 6(2) (affording MFN treatment on the basis of terms afforded non-Arab
investors in similar field); arts. 6(1), 8(1), 15 (affording foreign investors treatment similar to Arab investors); arts. 2, 7 (establishing free transfers of capital and investment revenues); art. 9(2)(a) (establishing fair compensation for expropriation); art. 10 (describing
compensation for damages).
109. See generally Walid Ben Hamida, The First Arab Investment Court Decision, 7 J.
WORLD INV. & TRADE 699 (2006).
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Incorporating multilateral investment agreements into existing analyses
of BITs can also raise potentially difficult problems of weighting and
double-counting. For example, several ASEAN members have signed
BITs between themselves, both prior to and after signing the ASEAN
agreement’s BIT-like investment provisions. To cite just two cases,
Vietnam joined ASEAN in 1995, but had already signed BITs with Indonesia, Thailand, Malaysia, and the Philippines as of 1992.110 Thailand, an
original member of ASEAN, signed the 1987 ASEAN investment
agreement, yet subsequently signed BITs with the Philippines and Indonesia in 1995 and 1998 respectively.111 This practice raises a potential
problem of double-counting that should be taken into account before
blindly adding an additional seven BITs to each ASEAN member country’s total.
Incorporating the ECT into existing analyses poses a particularly significant challenge because unlike most BITs the ECT is a sector-specific
agreement. For example, the obligations undertaken by two countries to
each other under the ECT are not of the same import as those undertaken
in a BIT of general application between the same two states, and the
presence or absence of a sector-specific agreement like the ECT necessarily needs to be appropriately weighted. The most obvious scheme
would consider the relative importance of the energy sector to the member states’ total potential supply of FDI. But whatever scheme is ultimately adopted, it is clear that weight of some sort should usually be
given. Because of the sheer number of countries that have bound themselves to it,112 analysts should not ignore the ECT’s existence.
B. The Irrelevance of Exclusivity
As noted above, UNCTAD identifies the 1959 Germany-Pakistan
treaty as the first BIT.113 This claim is accurate in the sense that this particular treaty is, apparently, the first to deal exclusively with investmentrelated issues independently of other commercial issues. The conceptual
110. UNCTAD BITs 1959–1999, supra note 2, at 120.
111. Id. at 109.
112. Fifty-one states have currently signed the ECT. Using the standard mathematical
formula for calculating combinations of pairs,
N! / ((N − 2)! × 2)
the ECT may be viewed as representing the rough equivalent of 1275 BITs. Of course,
that number ignores the ECT’s limited sectoral coverage. In addition, because many ECT
states have also already signed comprehensive BITs with other ECT states, there is an
issue of double-counting.
113. See supra note 86 and authorities cited therein.
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CONCEPTUAL DIFFICULTIES
437
problem is that exclusivity of subject matter is hardly sufficient to distinguish the Germany-Pakistan treaty from a host of other previous and
contemporaneous commercial treaties as credible commitment devices.
For example, FCN treaties provided (and sometimes still provide) investors with important investment-related guarantees while also addressing
issues related to trade in goods, freedom of navigation, and the like.114
To appreciate the potential scope of the issue, note that the United
States has negotiated FCN-type treaties since the early days of the Republic.115 France,116 Germany,117 Japan,118 and the United Kingdom119
have pursued roughly similar commercial treaty programs. The primary
focus of the earliest commercial treaties was the regulation of trade and
merchant relations; issues primarily of interest to investors were covered
only accidentally or incidentally.120 Over time the treaties became more
concerned with investment-specific needs, and after World War II the
United States concluded a series of twenty-one FCNs with a wide variety
of developed and developing countries.121 A “major purpose” of the postwar FCNs was to “to protect . . . investment abroad.”122 Many FCN-type
treaties are still in force and they are occasionally invoked by or on behalf of investors before municipal and international tribunals.123 Most
114. UNCTC BILATERAL INVESTMENT TREATIES, supra note 2, at 3–4 (noting the “very
broad scope” of such treaties, listing the wide variety of protections they provide, and that
these treaties are no longer being negotiated but many remain in effect).
115. The “first treaty of this type signed by the United States was the Treaty of Amity
and Commerce with France (1778).” ROBERT RENBERT WILSON, UNITED STATES
COMMERCIAL TREATIES AND INTERNATIONAL LAW 2 (1960).
116. For a discussion of early French FCN-type “establishment” treaties, see generally
ROY PREISWERK, LA PROTECTION DES INVESTISSEMENTS PRIVÉS DANS LES TRAITÉS
BILATÉRAUX (1963).
117. Id.
118. See Yoshiro Matsui, Japan’s International Legal Policy for the Protection of
Foreign Investment, 32 JAPANESE ANN. INT’L LAW 1, 3 (1989).
119. See Robin Burnett, Negotiation of International Agreements in the Field of Commerce and Investment—Problems of Relevance to Newly-Independent States, 9 J. WORLD
TRADE L. 231, 235 (1975).
120. Herman Walker, Jr., Treaties for the Encouragement and Protection of Foreign
Investment: Present United States Practice, 5 AM. J. COMP. L. 229, 230 (1958).
121. See Vandevelde, supra note 55, at 207 nn.53 & 60.
122. Kenneth J. Vandevelde, Sustainable Liberalism and the International Investment
Regime, 19 MICH. J. INT’L L. 373, 382–83 (1998). For citations to the major historical
academic studies of the U.S. FCN program, see id. at 383 n.72.
123. See, e.g., Case Concerning Elettronica Sicula S.P.A (ELSI) (U.S. v. Italy), 1989
I.C.J. 15 (July, 20 1989) (invoking the U.S.-Italy FCN on behalf of a U.S. investor whose
Italian plant had been requisitioned by the Mayor of Palermo and occupied by protesting
Italian workers); Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (1982) (invoking
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importantly, the guarantees provided to investors in the FCNs are in
many cases identical in form and substance to investment-only treaties.124
It is particularly instructive to compare the main investor-related provisions of the 1959 United States-Pakistan FCN with the GermanyPakistan BIT from the same year, as Table 1 does.125
Table 1. FCNs vs. BITs
Subject
1959 U.S.-Pakistan FCN
1959 Germany-Pakistan BIT
Preamble/Object
& Purpose
“[E]ncouraging mutually beneficial
investments, promoting mutually
advantageous commercial intercourse and otherwise establishing
mutual rights and privileges”
“Desiring to intensify economic cooperation . . . , Intending to create
favorable conditions for investments . . . promot[ing] investment,
encourage[ing] private industrial
and financial enterprise”
General Standard
of Treatment
Treatment “no less favorable than
other enterprises of whatever nationality engaged in similar activities” (Art. VII); freedom from “unreasonable or discriminatory measures” (Art. VI(3)); “the most constant protection and security” (Art.
VI(1))
“[N]on-discrimination” (Arts. 1(2)
& 2); “protection and security”
(Art. 3(1))
Expropriation
Allowed only for “public purpose”
and against “prompt payment of
just compensation” that is “effectively realizable” (Art. VI(4))
Allowed only for “public benefit”
and against “compensation” that is
“actually realizable” and “equivalent of [sic] the investment affected” (Art. 3(2))
the U.S.-Japan FCN to challenge the applicability of American anti-discrimination laws
to Japanese investors).
124. See Wayne Sachs, The “New” U.S. Bilateral Investment Treaties, 2 INT’L TAX &
BUS. LAW. 192 (1984). The article’s title indicates Sachs’ deep skepticism about the novelty of the U.S. effort, which, as Sachs demonstrates convincingly, draws much more
deeply on the U.S. FCN treaties than most observers acknowledge. Id.
125. Treaty for the Protection of Investment, W. Ger.-Pak., Nov. 25, 1959, 457
U.N.T.S. 23; Treaty of Friendship and Commerce, U.S.-Pak., Nov. 12, 1959, 12 U.S.T.
110, T.I.A.S. No. 4683.
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Transfers
Freedom to transfer “funds” on
national treatment or most favored
nation basis (Art. XII(1))
Freedom to transfer “invested capital, of the returns,” “without undue
delay” and at “just and reasonable”
rate of exchange (Arts. 4 & 6)
Dispute Settlement (State-State
Only)
Disputes between states “as to
interpretation or application” subject to compulsory arbitration before the International Court of Justice (ICJ) (Art. XXIII(2))
Disputes between states as to “interpretation or application” subject
to compulsory ad hoc international
arbitration (Art. 11)
The similarities are striking and the conclusion is unavoidable—if the
Germany-Pakistan treaty is a conceptually relevant BIT, then the U.S.
FCNs must be relevant as well.
The practical importance of this point will vary according to the particular analysis. Many post-war FCNs were concluded with what today
are considered to be well developed countries—Belgium, Denmark,
Germany, Greece, France, Japan, Italy, Ireland, Luxembourg, and the
Netherlands126—and are irrelevant if the study at issue is concerned only
with the causes and consequences of treaties involving developing countries. The United States and several other capital-exporting states have
signed BIT-like FCNs with a number of developing countries. Thus, the
failure of empirical BIT analysts to consider these FCNs as BITequivalent treaties is unjustifiable as long as the Germany-Pakistan BIT
and others like it are also included in the analysis. Indeed, that
UNCTAD’s exclusion of the United States-Pakistan FCN (and other
equivalent post-war FCNs) is entirely arbitrary is best illustrated by the
fact that UNCTAD’s list of BITs inexplicably includes a number of
FCN-type commercial treaties concluded by Switzerland and Sweden in
the years immediately following 1959.127 Why these treaties should be
included on UNCTAD’s list, but not the United States-Pakistan FCN or
others like it is difficult to fathom.
126. See Won-Mog Choi, The Present and Future of the Investor-State Dispute, 10 J.
INT’L ECON. L. 725, 731 (2007) (“Many of the FCNs, like the FCCRs and earlier commercial agreements, were concluded with developed countries, including Belgium, Denmark, Germany, Italy, France, the Netherlands, and Japan.”).
127. The Swiss and Swedish FCN-type treaties are listed in the appendix to Yackee,
supra note 84.
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How many BIT-like FCNs are at issue here? Not a great number, but
not an insignificant number either. Table 2 lists the principal candidates
for four of the most important capital-exporting countries. All of the
FCN treaties listed below contain something arguably approximating the
“substantive core” of modern BITs and involve developing countries (or
countries that might fairly have suffered the name until quite recently).
Table 2. BIT-Like FCNs between Major Capital-Exporting
Countries and Developing Countries
United States
Japan
Germany
UK
Ethiopia
Argentina
Dominican Rep.*
Cameroon*
Haiti*
Cuba
Israel
El Salvador
Iran
India
Nicaragua*
Indonesia
Oman
Malaysia
South Korea
Pakistan
Taiwan
Peru
Thailand
Philippines
Togo
Singapore
Iran
Vietnam
Uruguay*
Colombia*
*Never entered into force or no longer appears to be in force
Source: Jason Webb Yackee, Sacrificing Sovereignty: Bilateral Investment Treaties, International Arbitration, and the Quest for Capital (2007) (unpublished Ph.D. dissertation,
University of North Carolina at Chapel Hill).
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CONCEPTUAL DIFFICULTIES
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Other commercial treaties are worthy of consideration as well. They
are not included in Table 2 because they emphasize investment-related
issues to a lesser degree than other FCN treaties. This does not mean,
however, that they are analytically irrelevant. In particular, Japan entered
into at least eight commercial treaties with Communist states; the treaties
ignore investment per se but nonetheless promise MFN treatment with
respect to the “protection of property and security of business activities.”128 It is very likely that these MFN provisions operated (and, to the
extent these treaties remain in force, continue to operate) to fully extend
many substantive BIT promises to Japanese investors operating in those
(ex-) Communist states.
What significance do these largely BIT-equivalent FCNs and similar
commercial treaties have for empirical studies of the BIT phenomenon?
Arguably, to the extent that the FCNs fail to provide investors with guaranteed access to international arbitration (and all of them do), they
should not be included in the analysis because they are not properly considered credible commitment devices of any significant potential. If that
is indeed a supportable position, then many other early investment-only
treaties, like the 1959 Germany-Pakistan BIT, should be dropped from
the analysis as well.
It should also be emphasized that an analytical focus on investmentonly treaties ignores the modern trend toward embedding significant investment provisions, including guaranteed investor access to international arbitration, within free trade agreements (“FTAs”). NAFTA’s
Chapter 11 is the most well-known example,129 but a host of other multilateral and bilateral free trade agreements contain similar investment
chapters. The ASEAN Agreement for the Promotion and Protection of
Investments130 and the MERCOSUR Colonia Protocol for the Reciprocal
Promotion and Protection of Investments131 have already been mentioned, but there are numerous other examples. Mexico, for instance, has
signed FTAs containing BIT-equivalent investment chapters with Vene-
128. Matsui, supra note 118, at 3–4.
129. NAFTA, supra note 102, ch. 11; William S. Dodge, Investor-State Dispute Settlement Between Developed Countries: Reflections on the Australia-United States Free
Trade Agreement, 39 VAND. J. TRANSNAT’L L. 1, 3 (2006).
130. Agreement among the Government of Brunei Darussalam, the Republic of Indonesia, Malaysia, the Republic of the Philippines, the Republic of Singapore, and the
Kingdom of Thailand for the Promotion and Protection of Investments, supra note 103,
art. X.
131. Colonia Protocol for the Promotion and Reciprocal Protections of Investments in
MERCOSUR, supra note 104, art. 9.
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zuela, Colombia, Chile, Nicaragua, Costa Rica, Bolivia, Honduras, El
Salvador, and Guatemala,132 none of which are found on UNCTAD’s list.
Finally, commercial treaties, whether of the FCN or FTA type, are not
the only multi-subject treaty-based source of BIT-like guarantees to investors. The best example is Protocol One of the European Convention
for the Protection of Human Rights and Fundamental Freedoms
(“ECHR”), which provides foreign investors with an explicit guarantee
that they shall not suffer expropriation in violation of the “general principles of international law” and legally binds most of Western and Eastern Europe, as well as Russia and Turkey.133 Other provisions of the
ECHR and its associated protocols give covered “natural and legal persons” the right to bring enforcement actions against expropriating states
before the European Court of Human Rights; the European Court of Justice can also decide investor-state property rights claims arising under
Protocol One.134 That empirically minded BIT analysts have largely, if
not wholly, failed to consider the ECHR as a credible commitment device that affect analysis of the BIT phenomenon is troublesome. One of
the central achievements of BITs is often said to be the reinforcement of
customary international law principles of just compensation for expropriation.135 The ECHR does just that on a remarkable scale.
Many other international treaties, and even some non-binding international agreements, contain provisions of potential relevance to foreign
investors. Among these, the WTO’s General Agreement on Trade in Services (“GATS”),136 the WTO’s Trade-Related Investment Measures
132. The Organization of American States (“OAS”) provides a comprehensive list and
links to the full texts of these and other inter-American trade and investment agreements
at http://www.sice.oas.org/agreements_e.asp (last visited Apr. 9, 2008).
133. See Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art.1, Mar. 20, 1952, 213 U.N.T.S. 262 (“Every natural or legal person
is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.”). For a discussion of international
cases brought under this provision, see Jon A. Stanley, Keeping Big Brother Out of Our
Backyard: Regulatory Takings as Defined in International Law and Compared to American Fifth Amendment Jurisprudence, 15 EMORY INT’L L. REV. 349, 382–85 (2001).
134. See Been & Beauvais, supra note 3, at 56.
135. This seems to be Guzman’s view, for instance. See generally Guzman, supra note
13.
136. General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1B, Legal Instruments, reprinted in
THE LEGAL TEXTS—THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE
NEGOTIATIONS 284 (1999). The GATS “covers FDI in services by defining trade in services as encompassing the supply of a service through the establishment of a ‘commercial
presence’ in the territory of another GATS signatory” and imposes requirements of na-
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CONCEPTUAL DIFFICULTIES
443
(“TRIMS”) agreement,137 the Treaty Establishing the European Community,138 and the OECD’s various declarations and codes on foreign investment139 stand out, but there are many others of greater or lesser conceptual relevance, and of greater or lesser facial resemblance to the typical BIT. Of significant potential importance are the various partnership
and cooperation agreements (“PCAs”) that states wishing to accede to
the European Union are required to sign and that typically contain provisions promising foreign investors certain rights of establishment, nondiscriminatory treatment, and freedom to transfer capital, as well as hortatory calls to promote FDI and to improve the investment climate, and
so on—all very BIT-like promises.140
Whether all or any of these various non-BIT instruments should necessarily be included as BIT equivalents in all studies is an open question.
Nonetheless, analysts should consider in a much more careful and theotional and MFN treatment. Eric M. Burt, Note and Comment, Developing Countries and
the Framework for Negotiations on Foreign Direct Investment in the World Trade Organization, 12 AM. U. J. INT’L L. & POL’Y 1015, 1030–32 (1997) (citations omitted).
137. Agreement on Trade-Related Investment Measures, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments,
reprinted in THE LEGAL TEXTS—THE RESULTS OF THE URUGUAY ROUND OF
MULTILATERAL TRADE NEGOTIATIONS 143 (1999). TRIMS ban “any host country investment restriction that directly affects trade flows.” Burt, supra note 136, at 1034.
138. Consolidated Version of the Treaty Establishing the European Community arts.
48–73, Dec. 24, 2002, 2002 O.J. (C 325/1) (establishing the free movement of people,
services, and capital between European Union member states).
139. The OECD Declaration and Decisions on International Investment and Multinational Enterprises commits adhering states to providing national treatment to each other’s
foreign investors. See OECD Declaration and Decisions on International Investment
and Multinational Enterprises (2000), http://www.olis.oecd.org/olis/2000doc.nsf/
LinkTo/NT00002BE6/$FILE/00085743.PDF. Mexico, Korea, the Czech and Slovak
Republics, Poland, Hungary, and Turkey, all members of the OECD, have signed on,
as have a number of non-OECD developing countries, including Argentina, Brazil,
and Chile. Id. OECD members have also adhered to codes of Liberalisation of
Capital Movements and Liberalisation of Current Invisible Operations. See OECD
Codes of Liberalisation of Capital Movements and of Current Invisible Operations,
http://www.oecd.org/document/63/0,2340,en_2649_34887_1826559_1_1_1_1,00.html
(last visited Jan. 26, 2008). The codes “constitute legally binding rules, stipulating progressive, non-discriminatory liberalisation of capital movements, the right of establishment and current invisible transactions (mostly services).” Id. Compliance is encouraged
through what the OECD calls “peer pressure exercised through policy reviews and country examinations to encourage unilateral rather than negotiated liberalization.” Id.
140. See, e.g., Partnership and Cooperation Agreement between the European Communities and their Member States and the Republic of Moldova, arts. 29, 31(d), 47(2) &
47(4), Nov. 28, 1994, 1998 O.J. (L 181) 3 (non-discriminatory treatment in article 29,
establishment rights in article 31(d), free transfer of capital in article 47(2), and calls to
improve FDI and investment climate in article 47(4)).
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retically self-conscious manner the extent to which such instruments
might make BIT commitments redundant or unnecessary as credible
commitment devices.141 For example, a PCA with the European Union,
combined with the property protection provisions of the ECHR, comes
perilously close to providing exactly the same guarantees as partial preconsent BITs. It is exceedingly hard to justify reliance on the latter treaties as theoretically meaningful but not the former.
C. The Need to Consider Non-Treaty Means of Credible Commitment
The need to consider non-treaty means of credible commitment presents the greatest challenge to empirical studies of BITs. The problem is
one of identifying the proper comparison. Most BIT analysts seem to
presume that the relevant comparison is between going out in the world
well protected—i.e., protected by a BIT—or not protected at all. This
presumption is particularly evident in Guzman’s elaboration of his cartel
theory of the reasons why LDCs sign BITs that hurt them.142 As presumptions go, this one is particularly unfounded; the reason why bears
repeating: other kinds of treaties—multilateral rather than bilateral,
commercial rather than investment-only—may contain provisions largely
equivalent to those traditionally provided in BITs. Furthermore, as will
be explored below, states may provide BIT-like guarantees of both a substantive and procedural nature through formal non-treaty instruments
such as municipal law and individual investment contracts. These treaty
alternatives also have strong potential to function as substitute credible
commitment devices.
1. Municipal Law
Recall that BITs perform two logically separate functions—they are
devices through which host states extend favorable substantive promises
and through which host states make those promises credible. Nonspecialists might assume that a host state’s decision to enter a BIT is a
decision to significantly liberalize FDI policy—that is, that signing and
ratifying a BIT extends to investors significantly more favorable substantive promises than were offered absent the BIT. With the potential excep-
141. In some instances the acceptance of an international institutional alternative to
BITs may legally preclude a host state from also securing an investment treaty. For example, French law prohibits the French government from signing BITs with African
states that have the CFA currency. See Patrick Juillard, Les conventions bilatérales
d’investissement conclues par la France [Bilateral Investment Conventions Concluded by
France], 106 J. DROIT INT’L 274, 282–83 (1979) (Fr.).
142. See Guzman, supra note 13, at 644.
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CONCEPTUAL DIFFICULTIES
445
tion of U.S. BITs, which have long required national treatment at the preinvestment stage,143 this is simply not the case. Most BITs do not require
host states to accept more investment, nor do most BITs prevent host
states from imposing burdensome performance requirements on investors
as a condition of entry. Instead, the liberality of a host state’s FDI regime
is primarily determined by promises extended to investors through municipal law. For example, municipal law may define which sectors of the
economy are open to foreign investment and on what particular terms—it
can determine tax rates, the availability of investment incentives, and
conditions of operation.144 The bulk of what matters legally to foreign
investors is supplied by municipal law; indeed, this is unavoidable because BITs, as brief and general statements of the law applicable to investments of all types, are unable to provide investors or host states with
a sufficiently detailed and self-contained legal regime. It is unsurprising
that for much of recent history investment framework laws have been the
primary means of promoting and controlling foreign investment in the
developing world.145
Municipal law is thus a necessary complement to BITs. However, municipal law may also provide the same substantive guarantees as BITs,
and it can do so much more broadly. For example, domestic laws often
contain fairly favorable rules concerning compensation for expropriation
generally.146 Domestic laws may also specify that foreign investors in
most sectors shall enjoy “national treatment.”147 Over the past decade
host states have also used domestic law to greatly liberalize their capital
143. See Patricia McKinstry Robin, Comment, The BIT Won’t Bite: The American
Bilateral Investment Treaty Program, 33 AM. U. L. REV. 931, 947 (1984) (discussing
Article II of the official U.S. “prototype” BIT, which “provides that signatory countries
will accord national treatment to the admission or establishment of investments”). Robin
notes that this aspect of the U.S. BIT program was one of the more “controversial.” Id.
144. See UNCTAD, TRENDS IN INTERNATIONAL INVESTMENT AGREEMENTS: AN
OVERVIEW, supra note 2, at 35–38.
145. See A.A. Fatouros, The Quest for Legal Security of Foreign Investments—Latest
Developments, 17 RUTGERS L. REV. 257, 268–69 (1963) (discussing the “great number of
statutes relating to the regulation and encouragement of foreign investments” that came
into effect in the developing world in the early 1960s).
146. The most obvious example is Fifth Amendment to the United States Constitution,
which provides that “nor shall private property be taken for public use, without just compensation.” U.S. CONST. amend V. For a detailed and useful (if dated) comparative examination of domestic expropriation regimes in the Americas, see EXPROPRIATION IN THE
AMERICAS: A COMPARATIVE LAW STUDY (Andreas F. Lowenfeld ed., 1971).
147. See, e.g., Republic of Mozambique, Assembly of the Republic, Law No. 3/93, art.
4 (June 24, 1993), reprinted in INVESTMENT LAWS OF THE WORLD, at Binder VI (Int’l
Center for Settlement of Inv. Disputes ed., Oceana Publications 2002) (providing that
“foreign investors . . . will enjoy the same rights . . . applicable to nationals”).
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accounts, allowing foreign investors much greater freedom to repatriate
assets and income.148 And unlike BITs, which provide their guarantees
only to investors from a single home state, municipal law guarantees are
extended to investors from the world over.
From the investor’s perspective, the main problem with municipal law
is the relative ease with which the host state may be able to change the
laws in adverse ways. Presumably, BITs serve to reduce state incentives
to change municipal law in ways unfavorable to the foreign investor by
providing causes of action for regulatory takings and the like. Nonetheless, the potential utility of BITs in this regard does not mean that favorable municipal law promises may not be made sufficiently credible by
other means.
On the one hand, municipal law itself may make changes in the law
difficult to achieve. This is particularly the case where, for instance,
guarantees of compensation for expropriation are embedded in the national constitution, as they have been in most Latin American countries
for some time.149 A more unusual example is provided by Greece, which
in the past has used a special legal procedure to grant investment-related
laws special quasi-constitutional status that constrains the government’s
ability to amend the laws absent a constitutional amendment.150 On the
other hand, host states may use municipal law to explicitly promise investors that the relevant legal regimes will remain stable as to their current investments. Article 9 of Russia’s 1999 Federal Law on Foreign Investment, which bears the unwieldy title of “Guarantees to Foreign Investors and Companies with Foreign Investment Against Unfavorable
Changes in the Legislation of the Russian Federation,” is one example.151
There is, of course, no magical power of commitment in a host state’s
unilateral legislative declarations that foreign investors are welcome on
such and such terms. A state that greatly values change in the status quo
is unlikely to be dissuaded from vigorously pursuing such change, even
if municipal law inconveniently stands in the way. That said, it is reasonable to presume that a state that has explicitly and publicly made pro-
148. See generally Elizabeth Asiedu & Donald Lien, Capital Controls and Foreign
Direct Investment, 32 WORLD DEV. 47 (2003).
149. See generally EXPROPRIATION IN THE AMERICAS: A COMPARATIVE LAW STUDY,
supra note 46, at 313 (noting that each of the seven Latin American countries studied
“has a written constitution which speaks expressly to the subject of expropriation”).
150. This aspect of the Greek investment law is discussed in A.A. FATOUROS,
GOVERNMENT GUARANTEES TO FOREIGN INVESTORS 121 n.208 (1962).
151. See The Russian Federation Federal Law on Foreign Investment in the Russian
Federation, art. 9, July 2, 1999, reprinted in INVESTMENT LAWS OF THE WORLD, at Binder
VII (Int’l Center for Settlement of Inv. Disputes ed., Oceana Publications 2002).
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CONCEPTUAL DIFFICULTIES
447
investor promises in an investment law may be more likely to think twice
about adversely changing the regulatory regime than one that has not,
even absent a binding commitment to international arbitration. In other
words, reputation has a potentially meaningful role to play here, especially if breaches of municipal law promises, because of their relative
clarity of meaning and application, are more easily detectable than
breaches of vague treaty law. But regardless of the role that reputation
might play in naturally stabilizing certain kinds of favorable municipal
law promises, host states may also use municipal law to provide investors with guaranteed access to international arbitration, where claims of
unfair changes in the substantive domestic legal regime (or other claims)
can be litigated. Greece appears to have been one of the first states to
embed a promise to arbitrate in its municipal foreign investment laws,152
but it is certainly not the only example. Fatourous’s excellent 1963 survey of investment guarantees found that states anxious to develop their
petroleum resources were especially likely to provide for international
arbitration of investment disputes through domestic laws.153 A more recent survey has found that approximately twenty national foreign investment laws include generic consent provisions to arbitrate disputes
with foreign investors under the ICSID Convention.154 These municipal
law pre-consents even occasionally produce published arbitral awards.155
152. FATOUROS, supra note 150, at 186.
153. Id. at 187 (discussing municipal law-based promises to arbitrate disputes related
to investments in the petroleum sector in India, Pakistan, Greece, Libya, Morocco, Iran,
and Mali).
154. See Lovells, Protecting Investments Overseas: Bilateral Investment Treaties,
Foreign Investment Laws and ICSID Arbitration, at 2, Aug. 1, 2006,
http://www.lovells.com/NR/rdonlyres/4D91D0A5-8303-4844-8D978DB8F7A2C94F/86
34/4152_D4.pdf; Ibrahim F.I. Shihata & Antonio Parra, The Experience of the International Centre for Settlement of Investment Disputes, 14 ICSID REV. FOREIGN INVEST. L.J.
299, 303 (1999). However, this count excludes investment laws that contain state promises or pre-consents to non-ICSID arbitration; thus it is not a complete picture of the
prevalence of arbitration for these disputes. For example, Ghana’s 1994 Investment Act
and 1986 Minerals and Mining Law both “provide for arbitration when disputes cannot
be settled by other means.” See Investment Act, 1994, § 29(2) (Ghana); Minerals & Mining Law, 1986, § 8(3) (Ghana). Additionally, municipal law pre-consents have occasionally produced published arbitral awards. See, e.g., Southern Pacific Properties (Middle
East) v. Arab Republic of Egypt, Decision on Jurisdiction, 3 ICSID Rep. 142/3 (Apr. 14,
1988); Tradex Hellas S.A. (Greece) v. Albania, 14 ICSID REV. FOREIGN INV. L.J. 161,
165 (1996).
155. See, e.g., Southern Pacific Properties Ltd. v. Arab Republic of Egypt, ICSID Case
No. ARB/84/3, Decision on Jurisdiction, 3 ICSID (W. Bank) 131, ¶¶ 72–75 (Apr. 14,
1988). A Canadian mining company has recently initiated arbitration against the Kazakh
government under that country’s foreign investment law. See Luke Eric Peterson, Cana-
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This ability to use municipal law to provide investors with effective preconsents to binding international arbitration is what makes municipal law
a plausible BIT substitute.
2. Investment Contracts
Municipal law is not the only plausible BIT substitute. Foreign investors, unlike private parties engaged in international trade, are often
placed in the position of explicitly bargaining with host states over the
terms under which they will be allowed to establish their investment and
to continue operations.156 This is especially so in the natural resources
sector,157 in which the host state usually owns the natural resources to be
extracted, and in the public utilities or infrastructure sectors,158 where the
investor is called upon to provide an essential public service like electricity or a highway. It is also true of the manufacturing sector, where the
foreign investor is typically required to contract with the host state in
order to receive special treatment like tax incentives or the right to operate in an export processing zone (“EPZ”).159
Many early investment framework laws explicitly envisioned that foreign investment would need to be approved by the host state in order to
dian Uranium Miner Sues Kazakhstan under Foreign Investment Law, INV. TREATY
NEWS, July 12, 2007, available at http://www.iisd.org/investment/itn/archive.asp.
156. In the typical international sales transaction, the relationship is an arms-length one
between private parties that, individually speaking, have “minimum impacts upon the
policy or other interests of the states with which the transaction would come into contact.
It is not an intrusive transaction in that very little conduct relating to it takes place in
either country and the duration of the course of that transaction is short.” M.
SORNARAJAH, THE SETTLEMENT OF FOREIGN INVESTMENT DISPUTES 228 (2000). Thus, the
importing state typically has little incentive to invest in costly contracting with individual
traders as to the importing state’s obligations in regard to that particular trade, and is
content to set trade policy on the national level while granting the private parties to the
trade transaction relatively complete autonomy to structure their deal in the way the parties see fit. See id. The one principal exception to this rule was the socialist states’ state
trading entities practice of including arbitration agreements in their international trade
contracts. See HENRY CATTAN, THE LAW OF OIL CONCESSIONS IN THE MIDDLE EAST AND
NORTH AFRICA 142 n.8 (1967).
157. Burnett, supra note 119, at 237. For an in-depth discussion of natural resources
investment contracts, see generally DAVID N. SMITH & LOUIS T. WELLS, JR., NEGOTIATING
THIRD-WORLD MINERAL AGREEMENTS: PROMISES AS PROLOGUE (1975); ERNEST E. SMITH
ET AL., INTERNATIONAL PETROLEUM TRANSACTIONS (2d ed. 2000).
158. See generally J. LUIS GUASCH, GRANTING AND RENEGOTIATING INFRASTRUCTURE
CONCESSIONS: DOING IT RIGHT (2004).
159. See MUCHLINSKI, supra note 46, at 230–33; David Wall, Export Processing
Zones, 10 J. WORLD TRADE L. 478, 479 (1976).
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CONCEPTUAL DIFFICULTIES
449
receive certain legal protections or policy concessions.160 Even today,
some states still require government approval of investments in order to
obtain BIT benefits.161 The approval process does not necessarily entail a
contract, but the approval process does give the investor an informal opportunity to ask for a formal agreement. Latin American states in particular have preferred historically to grant rights to foreign investors directly
through bargaining, rather than indirectly through treaties with the investors’ home states.162 Some of those states still seek to encourage investorstate contracting by making access to favorable guarantees and benefits
contingent upon it.163 Home states have also long encouraged investors to
contract directly with host states. For example, investors will often be
legally precluded from accessing the home state’s government sponsored
investment insurance absent the host state’s formal approval of the investment.164 Some home state investment insurance programs may even
require an actual investment agreement.165
160. See, e.g., Foreign Investments Protection Act, (1964) Cap. 35 § 3(1) (Kenya),
reprinted in 4 INT’L LEGAL MATERIALS 241 (1965).
161. See, e.g., Agreement on the Promotion and Protection of Investments, Sing.-Sri
Lanka, art. 2, May 9, 1980, 1202 U.N.T.S. 333 (requiring “approval in writing” by government officials). Sornarajah notes that “most” East Asian BITs limit their protections to
officially approved investments. SORNARAJAH, supra note 6, at 266.
162. As Tawil explains:
En general, los países de la región [of Latin America], han preferido la negociación directa, con los inversiones, aduciendo, que tales tratados con los países
industrializados no resultan equilibrados, obligándolos a asumir costosos compromisos a largo plazo, sin imponer responsabilidades similares a sus cocontratantes.
Guido Santiago Tawil, La crisis latinoamericana y algunas perspectives de cambio en la
regulación de las inversions extranjeras en la regíon [The Latin American Crisis and
Some Perspectives on Regulatory Change of Foreign Investors in the Region], LA LEY
1988-A, 871 n.17.
163. Peru, for instance, gives investors who enter an investment contract with the state
the right to benefit from a special legal regime guaranteeing “legal stability” as to tax,
currency repatriation, and national-treatment laws for ten years from the date of contract
execution. See Decreto Legislativo No. 662 Aprueba Régimen de Estabilidad Jurídica a la
Inversion Extranjera, Titulo II [Legislative Decree No. 662 Aprueba Regime of Foreign
Investment Legal Stability] (1991) (Peru). The availability of the “stability regime” depends on the investor’s willingness to contractually undertake certain obligations relating
to the size of the investment and its employment and export effects.
164. See THEODOR MERON, INVESTMENT INSURANCE AND INTERNATIONAL LAW 62, 126
(1976) (noting the requirement for host-state approval in regard to the U.S. and Canadian
investment insurance programs).
165. France, for example, has conditioned availability of its insurance on a host state’s
willingness to enter a “specific engagement” with the investor, which must contain the
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The opportunity to bargain is important because it provides the foreign
investor with the occasion to induce the host state to clarify the terms of
the investor’s entry and operation or to improve upon the promises offered under municipal or international law through an investment contract (often called an investment agreement). For example, host states
may enact relatively unfavorable national investment laws, which are
intended only as a prelude to the possibility of more favorable treatment
extended on a project-by-project basis. In this case, municipal law represents the first stage in a bargaining process between the host state and the
foreign investor. This appears to have been the case for the members of
the Andean Common Market in the 1970s, which largely for domestic
political reasons adopted an outwardly hostile policy toward foreign investors, but was willing to grant foreign investors much more favorable
terms of entry and operation on an ad hoc basis.166
Early contracts between host states and investors tended to be “rather
simple documents,”167 but these contracts have become significantly
more detailed and complex over time.168 Importantly, foreign investment
contracts are not a phenomenon limited to the infrastructure or natural
resources sectors. For example, Intel’s practice when deciding whether to
construct new semi-conductor manufacturing facilities is to enter into
intensive haggling with potential host states over a variety of finegrained matters and to insist that any resulting deal be committed to a
written contract prior to any investment.169
host state’s consent to ICSID arbitration. See, e.g., Convention on the Protection of Investments, Fr.-Tunis., art. 2, June 30, 1972, 848 U.N.T.S. 143.
166. See generally FRANCOIS J. LOMBARD, THE FOREIGN INVESTMENT SCREENING
PROCESS IN LDCS: THE CASE OF COLOMBIA, 1967–1975 (1979). As Lombard concludes,
“foreign investors have to be aware that behind the strict rules there exist possible ways
to reach operational agreements.” Id. at 126. This situation has been described as one of
“carrot and stick” whereby “[i]n essence, a bargaining process is created; both sides
probe for maximum advantage until a deal acceptable to both is struck.” U.S. Policy Toward International Investment: Hearings Before the Subcomm. on International Economic Policy of the S. Comm. on Foreign Relations, 97th Cong. 14 (1981) (prepared
statement of C. Fred Bergsten, Senior Associate, Carnegie Endowment for International
Peace).
167. SMITH & WELLS, supra note 157, at 31.
168. Id. at 37–53. For example, in a recent, prominent international arbitration,
the water services concession contract at issue was 111 single-spaced pages, “consisting
of 16 articles plus 25 lengthy appendices” and was the product of two years
of negotiation. Compañía de Aguas del Aconquija, S.A. v. Argentine Republic,
ICSID Case No. ARB 97/3, 16 ICSID (W. Bank) 141, ¶¶ 25–26, available at
http://www.worldbank.org/icsid/cases/ada_AwardoftheTribunal.pdf.
169. Debora Spar, Attracting High Technology Investment: Intel’s Costa Rican Plant,
FOREIGN INVESTMENT ADVISORY SERVICE 10–11 (1998).
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Unsurprisingly, investment agreements between foreign investors and
host states often contain the state’s pre-consent to international arbitration. Investment framework laws sometimes expressly provide that investment contracts shall contain arbitration clauses,170 and the home
state’s investment guarantee treaties may require arbitration clauses in
investment contracts as a condition for insuring the project.171 French
BITs have also required host states to promise to insert arbitration clauses into investment contracts upon the investor’s request.172 In other cases
the investor may succeed in convincing the host state to agree to contract-based arbitration even in the absence of any legal requirement to do
so.173 Even Latin American states, which have long required investors to
submit to the exclusive jurisdiction of municipal courts, appear to have
relaxed their attachment to that particular contractual term.174
From the investor’s perspective, the effect of contract-based arbitration
agreements is substantively identical to that of BIT-based arbitration
agreements. For example, nothing prevents an investment contract from
providing the investor with guaranteed access to ICSID; indeed, ICSID
170. Landau notes that the early investment framework laws of a number of African
countries required or provided for the possibility of arbitration in “establishment agreements” (investment contracts) with foreign investors. Henry Landau, Direct Foreign
Investments in Developing Countries, 4 J. L. & ECON. DEV. 182, 199 n.48 (1969).
171. See Convention on the Protection of Investments, Fr.-Tunis., supra note 165.
172. See e.g., Agreement between the French Republic and the Republic of Indonesia
on the Encouragement and Protection of French Investments in Indonesia, Fr.-Indon., art.
8, June 14, 1973, 985 U.N.T.S. 258.
173. From the perspective of the petroleum-sector investor, “recourse to national
courts is unthinkable and unrealistic [irréalisable],” making arbitration clauses a fundamental necessity in the contracts. Jacques Logie, Les Contrats Pétroliers Iraniens, 1
REVUE BELGE DROIT INT’L 392, 410 (1965). For an early discussion of the use of investment contracts in contract-based economic development agreements between multinational corporations and developing states, see Maurice Bourquin, Arbitration and Economic Development Agreements, in SELECTED READINGS ON PROTECTION BY LAW OF
PRIVATE FOREIGN INVESTMENTS 99 (Fred B. Rothman & Co. 1973) (1964). Bourquin
claims that “[a]rbitration is generally included” in these agreements and provides several
examples. Id. at 109. Alfred Verdross makes a similar argument. See Alfred Verdross,
The Status of Foreign Private Interests Stemming from Economic Development Agreements with Arbitration Clauses, in SELECTED READINGS ON PROTECTION BY LAW OF
PRIVATE FOREIGN INVESTMENTS 117, 137 (Fred B. Rothman & Co. 1973) (1964). Fatouros suggests that by the early 1960s, investor-state arbitration clauses were “frequently
included in agreements between states and foreign nationals or companies . . . usually
describ[ing] in detail the procedures to be followed in case of dispute.” FATOUROS, supra
note 150, at 187.
174. See generally Denise Manning-Cabrol, The Imminent Death of the Calvo Clause
and the Rebirth of the Calvo Principle: Equality of Foreign and National Investors, 26
LAW & POL’Y INT’L BUS. 1169 (1995).
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arbitration clauses appear to be a relatively common feature of modern
investment contracts.175 And an ICSID award rendered under a contractbased agreement has the same force worldwide as an award rendered
under an investment treaty because the ICSID Convention’s recognition
and enforcement provisions do not distinguish between treaty-based and
contract-based arbitration (nor any of the Convention’s other provisions).176 Contract-based arbitration and contract-based substantive guarantees more generally, are not simply poor cousins to BIT-based guarantees. Putting aside the fact that the substantive guarantees contained in an
investment contract will most likely not be identical to the substantive
guarantees of “fair and equitable treatment” and the like in a BIT,177 investment contracts that include arbitration agreements are fully effective
substitutes for strong BITs.
Investment contracts may even be preferred by investors, not because
contract-based arbitration itself is superior (though the investor may wish
to have access to a particular arbitral forum not provided for in the relevant BIT), but because the investment contract provides the investor with
the opportunity to spell out his rights and obligations vis-à-vis the state
with far greater precision and completeness than the rights and obligations contained in the typical BIT, the latter of which represents a onesize-fits-all solution that is unlikely to ideally suit all investors.178 For
example, investors are often particularly anxious to receive the host
state’s explicit guarantee of “stabilization,” whereby the host state guarantees that the legal or regulatory regime will not change in ways adverse
175. Schreuer maintains that an agreement between the host state and investor “recorded in a single instrument,” e.g., an investment contract, “is the most common form of
consent.” SCHREUER, supra note 64, at 194. After the Convention’s entry into force,
“[p]rovisions referring to arbitration under the ICSID Convention quickly became a standard feature of international investment contracts.” Ibrahim F.I. Shjihata, Foreword to
SCHREUER, supra note 64, at xv.
176. See ICSID Convention, supra note 4, arts. 53–55.
177. Although nothing prevents an investor and host state from providing BIT-like
substantive guarantees in an investment contract per se. For example, it is perfectly conceivable that the parties to a BIT might subject the contract to international law as such or
might include provisions dealing with the amount of compensation due if the host state
expropriated the investor’s property. For an example of a reference to international law in
an oil concession contract, see Robert B. von Mehren & P. Nicholas Kourides, International Arbitrations between States and Foreign Private Parties: The Libyan Nationalization Cases, 75 AM. J. INT’L L. 476, 481–82 (1981).
178. As West argues, “The critical focal point in political risk assessment and management should be the [foreign] investor and the specific [foreign] investment. . . . [T]he
objectives and uniqueness of each individual investor should largely determine how one
assesses risk and seeks to manage it.” Gerald T. West, Managing Project Political Risk:
The Role of Investment Insurance, J. PROJECT FINANCE, Winter 1996, 5, at 6.
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CONCEPTUAL DIFFICULTIES
453
to the investor’s interests.179 Likewise, the international lenders that finance the largest and riskiest foreign investment projects often demand
that investors secure such a guarantee as a condition to funding the investment project.180 Because BITs do not contain the equivalent of stabilization clauses, investors desiring or requiring them will necessarily
have to enter into an investment agreement of some sort with the host
state.181
In sum, the continuing relevance of investment contracts matters for
BIT analysts for much the same reason that municipal law matters—it
suggests that the presence or absence of a BIT, by itself, is an insufficient
measure of the extent to which a host state has extended credible and
favorable promises to investors.
CONCLUDING OBSERVATIONS
This Article has made two modest but important points. The first is that
all BITs are not created equal and analysts need to do a much better job
of sorting wheat from chaff. UNCTAD’s list of BITs, relied on by many,
is inappropriate for most empirical studies of the BIT phenomenon. To
the extent that empirical BIT analysts are interested in BITs as potentially effective law-based credible commitment devices, any analysis that
relies on BITs that lack an enforcement mechanism, especially access to
international arbitration, is over-inclusive. An example of this is found in
UNCTAD’s list of BITs, which includes a large number of treaties that
offer investors no access or incomplete access to effective dispute settlement procedures.
Second, I have argued that host states have long had access to alternative credible commitment devices—particularly municipal law and investment contracts—that can serve the same essential credible commitment functions as BITs. They may even better serve those functions, and
in this regard investment contracts in particular stand out. Analysts also
must be sensitive to other international treaties and agreements, such as
the Energy Charter Treaty, the European Convention on Human Rights,
or association agreements with the European Union, that either singly or
in combination offer BIT-equivalent guarantees.
179. See generally Thomas W. Waelde & George Ndi, Stabilizing International Investment Commitments: International Law Versus Contract Interpretation, 31 TEX. INT’L
L.J. 215 (1996).
180. Id. at 229.
181. See generally id. While most BITs do provide guarantees against uncompensated
expropriation, such guarantees are not as broad and thus not as valuable to the investor as
typical stabilization guarantees.
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The principal implication is that empirically minded BIT analysts
should take considerably more care to properly define their main theoretical concept of interest and to ensure that their quantitative measures
of the phenomenon adequately match the definition. BIT analysts are
typically not interested in BITs because UNCTAD has listed a particular
treaty as a BIT—they are interested in BITs as a measure of the degree to
which a particular host state has used formal legal means to attempt to
credibly commit to treat investors favorably. Merely quantifying a host
state’s UNCTAD-listed BITs as some sort of index of host state credible
commitment, as Neumayer and Spess182 and others do, is inadequate.
This Article has not, however, demonstrated as an empirical matter that
the correlations identified by existing analyses of the causes and effects
of BITs would disappear if those analyses more properly took into account important differences in BIT design and the use of BIT substitutes.
In lieu of such a demonstration, which entails a larger research agenda
than can be presented here,183 there are two paths of research that would
be worth pursuing.
First, studies of the effects of BITs on foreign investment flows need to
focus more explicitly on disentangling the causal effects of BITs—if
any—from the causal effects of changes in host state foreign investment
policy that may have coincided simultaneously with the decision to enter
into BITs. Over the past fifteen years, many host states have dramatically
modernized and liberalized their foreign investment laws—opening up
new sectors to foreign involvement (often by privatizing state-owned
enterprises and contracting out basic governmental services),184 relaxing
joint venture requirements, eliminating investment screening boards and
performance requirements, establishing investment promotion agencies
and EPZs,185 and so on. It is undeniable that investors have attached con182. See supra notes 8–10.
183. For an initial attempt to advance that agenda, see generally Yackee, supra note
84.
184. On trends in privatization, see Sunita Kikeri & Aishetu Fatima Kolo, Privatization: Trends and Recent Developments 1–31 (World Bank, Policy Research Working
Paper Series No. 3765, 2005).
185. The World Bank characterizes EPZs as a “major mechanism used to attract
[export-oriented manufacturing] FDI” that “proved to be a popular way to attract
FDI because they enabled foreign investors to reduce production costs, specifically
their labor costs.” MIGA’s FDI Promotion Center: Resources For Investment
Promotion Practitioners, Lessons Learned About National FDI Policies,
www.fdipromotion.com/toolkit/user/content_page.cfm (Section 2.4, Lessons Learned
About National FDI Policies) (last visited Mar. 5, 2008). EPZs essentially function as
policy enclaves that provide export-oriented manufacturing investors willing to locate
within the zones and to engage in desired activities with favorable treatment (primarily
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CONCEPTUAL DIFFICULTIES
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siderable value to these changes when they have taken place.186 For instance, in 1993 Mexico enacted an ambitious new Foreign Investment
Law187—a “crown jewel” achievement representing an unprecedented
“repudiation” of Mexico’s historically ambivalent and often hostile policies toward foreign investors.188 At virtually the same time, Mexico
bound itself to chapter 11 of NAFTA, the free trade agreement’s investment chapter, and joined the OECD and its international investment instruments.189 Which policy change was responsible for the resulting increase in Mexico’s foreign investment inflows? Would U.S. investors
have flocked to Mexico absent NAFTA but with the protections and
guarantees of the 1993 law? Are the contemporaneous OECD commitments safely ignored? There is some indication that Mexican authorities
viewed NAFTA chapter 11 and the 1993 domestic legal changes as
largely substitutable because NAFTA chapter 11 was largely redundant
with what Mexico had already done unilaterally.190
tax breaks and relaxed administrative requirements) that is unavailable to foreign investors more generally. See MUCHLINSKI, supra note 46, at 228–38; Wall, supra note 159, at
479–80.
186. A headline in the Wall Street Journal heralding changes in Brazil’s constitution
illustrates the point: Multinational Miners Really Dig Brazil—Catalyst is the Easing of
Curbs on Foreign Ownership. Matt Moffett, Multinational Miners Really Dig Brazil—
Catalyst is the Easing of Curbs on Foreign Ownership, WALL ST. J., Jan. 22, 1997, at
A10.
187. Ley de Inversión Extranjera [L.I.E.] [Foreign Investment Law], as amended, Diario Official de la Federación [D.O.], Dec. 27, 1993 (Mex.).
188. Ewell E. Murphy, Jr., Access and Protection for Foreign Investment in Mexico
under Mexico’s New Foreign Investment Law and the North American Free Trade
Agreement, 10 ICSID REV. FOREIGN INVEST. L.J. 54, 58 (1995).
189. See Paula S. Gibbs, Comment, Prospects for Sustainable Liberalization of Foreign Investment Laws as a Concomitant of Hemispheric Integration in the Americas, 28
U. MIAMI INTER-AM. L. REV. 95, 107 n.58 (1996). Gibbs observes:
Mexico became a member of the Organisation of Economic Cooperation and
Development (OECD) and adhered to the OECD’s Code of Liberalisation of
Capital Movements on May 18, 1994. As a new member of the OECD, Mexico
committed to work toward eliminating all capital controls still preserved in the
same sectoral exemptions and restrictions on inward direct investment as in
Chapter Eleven of the NAFTA.
Id.
190. Mexico accepted chapter 11 and NAFTA more generally because it “desire[d] to
implement a radical agenda of economic restructuring within Mexico. NAFTA was the
cornerstone of this policy, and many of the measures that Mexico was called on to take in
the NAFTA were ones that Mexican leaders had already decided to undertake anyway.”
MAXWELL A. CAMERON & BRIAN W. TOMLIN, THE MAKING OF NAFTA: HOW THE DEAL
WAS DONE 123 (2000). Additionally,
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One solution to the problem of multiple causation, and probably the
best one, is to eschew the use of multivariate regression for the decidedly
less sexy but potentially far more appropriate methodologies of case
study and survey. In other words, if the hypothesis is that foreign investors really care about BITs and that BITs meaningfully influence their
decisions, why not ask them if this is indeed the case? We currently have
little real sense of what actual role, if any, BITs play in the investment
decision-making process.191
Second, empirical studies of the causes of the BIT phenomenon need
to broaden their focus beyond the current and narrowly functionalist explanation of the treaties as the inevitable consequence of a rational competition for capital. What is missing from this standard account is any
sustained comparative analysis of why the treaties, as one potential credible commitment device among several others, are better suited to performing the task. The discussion above focused on several relatively
formal ways in which host states might make such commitments, even
absent a BIT. In particular, domestic laws and investment contracts
might be used to make favorable substantive promises; to the extent that
reputational concerns alone fail to make these promises credible, binding
commitments to arbitrate disputes may be appended. Other mechanisms
for coping with the problem of the obsolescing bargain, although not discussed in detail above, should not be forgotten. The widespread availability of home state investment insurance is especially significant, as is
the availability of private ordering solutions in which the investor structures its relationship with the host state, perhaps by creating an “economic hostage,” to make breach a less attractive option.192
[t]he policies [embedded in NAFTA] were, however, policies that could have
been undertaken anyway, if not under the NAFTA, then under the auspices of
the GATT, or even in some cases unilaterally. In some ways, NAFTA was simply the culmination of a process of dramatic economic and social restructuring
that had occurred, or was occurring, . . . in each country.
Id. at 125.
191. For an example of the great potential that case studies offer in this regard and one
of the first studies to systematically document the contours of developing state competition for FDI, see STEPHEN GUISINGER & ASSOCIATES, INVESTMENT INCENTIVES AND
PERFORMANCE REQUIREMENTS 19–54 (1985).
192. See Oliver Williamson, Credible Commitments: Using Hostages to Support Exchange, 73 AMER. ECON. REV. 519, 519 (1983) (discussing use of economic hostages as
credible threats whereby one party can take advantage of its position over another, usually by means of a system of incentives, to more efficiently enforce terms of the contract
between the parties).
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CONCEPTUAL DIFFICULTIES
457
The real question, then, is what do BITs add to what was already available? BITs are hardly the inevitable solution to the insoluble problem of
obsolescing bargain that they are often made out to be. In one of the
more subtle and perceptive evaluations of the treaties, Wälde argues that:
Before the advent of [modern BITs], the treaty drafters expected investors to be able to negotiate their own dispute settlement method by way
of agreement with the host State.
. . . [T]he treaties, in effect, added a direct investor right without relation to underlying dispute settlement arrangements in order to create an
investor right that was independent of the ad hoc, individual negotiation, licensing or other parts of the investment process. This was done
under the assumption that investors should not have to rely on their
own negotiating strength and ability but be able to rely on a general
treaty-provided remedy . . . granted by law, not waivable and not dependent on an individual jurisdiction agreement with the State.
...
. . . [The treaties] thus partly replace[] the need to negotiate in the contract with the host State an internationalization regime consisting of
stabilization, arbitration and an international law clause.
Modern investment treaties have further developed this approach. They
include methods of property and contract protection which individual
investors, in an often more difficult negotiating context, might not have
been able to negotiate on their own.193
If Wälde is correct—and in my opinion, he is—what BITs bring to the
table is far different from what BIT analysts typically assume. Take, for
instance, Guzman’s claim that BITs are of great theoretical importance
principally because they “allow potential investors to negotiate for whatever protections and safeguards they feel are needed.”194 What Guzman
means, in other words, is that BITs work by supporting the enforceability
of investment contracts, a claim repeated by Bubb and Rose-Ackerman,
who, citing Guzman, argue that BITs have the potential to attract foreign
investment by supporting enforceable contracts through the establishment of a norm of pacta sunt servanda.195 This understanding of BITs is
highly misleading. As we have already seen, host states have long had
access to formal legal credible commitment devices that are, in theory,
193. Wälde, supra note 13, at 204–06 (emphasis added).
194. Elkins et al., supra note 7, at 644.
195. Ryan J. Bubb & Susan Rose-Ackerman, BITs and Bargains: Strategic Aspects of
Bilateral and Multilateral Regulation of Foreign Investment, 27 INT’L REV. L. & ECON.
291, 291–92 (2007).
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potentially as effective as BITs. The BIT phenomenon has done little to
directly enhance or promote the enforceability of contracts in particular
because investors were allowed to negotiate with states well before BITs
rose to prominence. While the enforceability of investment contracts has
certainly improved over time, that improvement is due to other institutional innovations (particularly the New York Convention and the ICSID
Convention)196 that allowed investors to secure the fruits of those negotiations with contract-based access to meaningful dispute settlement and
award enforcement procedures.197 Indeed, one could make a presentable
argument that BITs have undermined parties’ ability to contract, not
helped it, by creating considerable confusion as to the proper doctrinal
relationship between contract- and BIT-based claims.198
More fundamentally, BITs may interfere with investor-state negotiation by granting investors unwaivable protections and safeguards that
they might or might not have been able to convince a host state to grant
them in direct negotiations. This is the point that Wälde’s analysis brings
to the forefront, and it is immensely important because it suggests that
the main function of BITs is to limit host state bargaining power from the
outset. The obsolescing bargain theory, which posits that host state power is at its weakest at the time of initial contracting and that the investor
will usually have no trouble convincing the host state to promise it the
world and more, is truly turned on its head because it is precisely at this
point that there should be the least objective need for a treaty to specify
the particular terms of the deal. If an investor cares enough about a particular promise, procedural or otherwise, the investor can bargain for it.
BITs remove a good part of the bargaining space by forcing the host state
to offer particular terms to all comers, even those who would invest
without the treaty.
Why then might host states enter into BITs? Three possibilities deserve
further inquiry.
BITs as Reducing Bargaining Costs. If we are wedded to narrow economic-functionalist understandings of BITs, then it is worth considering
whether their primary useful function might be to reduce bargaining
costs rather than to permit credible commitment. Arguably, BITs elimi196. See ICSID Convention, supra note 4; New York Convention, supra note 72.
197. See supra note 72 and accompanying text (describing the enforcement tools provided by the New York Convention and the ICSID Convention).
198. See Yuval Shany, Contract Claims vs. Treaty Claims: Mapping Conflicts Between
ICSID Decisions on Multisourced Investment Claims, 99 AM. J. INT’L L. 835, 835–36
(2005). The relationship between investment contracts and BITs “expose[s] some of the
more difficult theoretical and practical uncertainties underlying modern international
investment law.” Id. at 835.
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CONCEPTUAL DIFFICULTIES
459
nate the need for investors and host states to engage in costly direct bargaining by providing the parties with default rules to govern their relationship, thereby eliminating the need to formally negotiate these rules
on a project-by-project basis.
Conceiving of BITs as default rules is attractive in large part because
recently many host states have begun dismantling or scaling back their
investment-approval institutions,199 thereby eliminating opportunities for
investors and states to easily enter into direct privity. This understanding
of BITs also raises a number of problems. First, the default rules provided by BITs are too vague for most important foreign investment projects, such as mining ventures or manufacturing facilities. In those cases,
the foreign investor will almost always bargain with host state authorities
and will be well-positioned to demand what BITs have to offer. Second,
from a default-rules perspective, it is quite difficult to justify the tendency of BITs to prevent host states and investors from bargaining
around BIT rules. If BITs require host states to extend to investors offers
that exceed the value of the investment to the host state, the host state
will reject the investment. The surprising implication is that in some cases BITs might actually be expected to discourage investment by preventing host states and investors from reaching a mutually acceptable bargain. Third, if BITs are best viewed as reducing bargaining costs, and if
bargaining costs in the absence of a BIT are slight compared to the overall value of the typical investment project, then the competitive advantage that BITs can be expected to provide to developing states is correspondingly slight, and BITs should not be associated with very significant increases in investment flows. If this is indeed the case, we should
be extremely suspicious of empirical studies that purport to find otherwise.
BITs as Ideas. A more convincing theory would emphasize the possibility that host states have simply been sold a bad bill of goods.200 They
have been advised and have accepted the idea that BITs are of decisive
importance to many foreign investors and the costs of signing the treaties
are low. For the vast majority of the history of BITs, there was no statistical or case-study evidence of the effects of the treaties on FDI flows,
and only recently have the costs of the treaties—meaning the extent to
which a wide variety of host state policies might be successfully challenged before arbitral tribunals—become clear. For example, as noted
199. Salacuse & Sullivan, supra note 10, at 76–77.
200. For an example of this approach, see generally Yackee, supra note 25 at 216–23
(discussing an “ideational approach” to explain BIT enthusiasm and describing how empirical evidence to support many of the claims made about BITs is “slim”).
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above, in 2004 Argentina faced international legal claims of approximately $16 billion.201 Argentina’s travails will likely make developing
countries think long and hard about signing new BITs containing strong
dispute settlement provisions.202
An ideational theory of BITs suggests the quasi-formal mechanisms by
which multilateral finance organizations, particularly the World Bank,
advise developing countries on FDI policy are worthy of far more scrutiny than they have so far received.203 The World Bank is deeply involved in investment arbitration (through ICSID) and in foreign investment insurance (through the Multilateral Investment Guarantee Agency
(“MIGA”)).204 It would not be surprising to find that World Bank advice
to developing countries typically emphasizes the importance of signing
BITs with pre-consents to ICSID arbitration and that developing countries that have sought World Bank advice on the subject are likely to follow it.205
BITs as Bribes. The third avenue of inquiry requires that we recognize
that BITs are by definition interstate agreements, and that host states that
201. See supra note 5 and accompanying text. See also R. Doak Bishop & Roberto
Aguirre Luzi, Investment Claims—First Lessons from Argentina, in INTERNATIONAL
INVESTMENT LAW AND ARBITRATION: LEADING CASES FROM THE ICSID, NAFTA,
BILATERAL TREATIES, AND CUSTOMARY INTERNATIONAL LAW 425, 425 (Todd Weiler ed.,
2005).
202. As a Washington, D.C.-based trade lawyer recently told the Financial Times,
“The US business community clearly still likes BITs. But why Brazil or any other country would agree to sign one after looking at Argentina defeats me.” Alan Beattie, Concern
Grows Over Global Trade Regulation, FIN. TIMES, Mar. 12, 2008, available at
http://www.ft.com/cms/s/0/1a56fc64-efd8-11dc8a170000779fd2ac.html?nclick_check=1.
203. For example, the United States Department of State notes that Ghana, as part of
its efforts to attract FDI, has set up the Ghana Investment Advisory Council (“GIAC”),
“which was established with the help of the World Bank, [and] helps shape government
policy aimed at creating an enabling investment environment. The GIAC consists of multinational and local companies and institutional observers (IMF [International Monetary
Fund], WB [World Bank], UNDP [United Nations Development Program]).” U.S. Dep‘t
of State, Ghana 2007: Investment Climate Statement, http://www.state.gov/e/
eeb/ifd/2009/1008873.htm (last visited Apr. 4, 2008).
204. The World Bank also offers FDI policy advice through its Foreign Investment
Advisory Service. Foreign Investment Advisory Service—Core Advisory Services,
http://www.ifc.org/ifcext/fias.nsf/Content/Advisory_Services (last visited Mar. 19, 2008).
205. Its investment insurance arm, the Multilateral Investment Guarantee Agency
(“MIGA”), provides host states with advice relating to “investment promotion.” See
World Bank Foreign Direct Investment Promotion Center, About FDI Promotion Center,
http://www.fdipromotion.com/index.cfm?pageID=2 (last visited Mar. 11, 2008); Press
Release, Multilateral Investment Guarantee Agency World Bank Group, MIGA
Launches Online FDI Promotion Center (Jan. 29, 2004), http://www.miga.org/news/
index_sv.cfm?stid=1506&aid=147.
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sign the treaties may in large part be attempting to please home state
governments—and not necessarily home state investors—that are in a
privileged position to control the flow of a wide range of benefits. Much
neglected in existing functionalist accounts of the treaties are the ways in
which capital exporting states have tended to make the availability of
home state insurance contingent on a host state’s willingness to sign a
BIT.206 The World Bank’s MIGA appears to have informally followed
this lead. UNCTAD reports that MIGA “has also encouraged the adoption of BITs as a test to ensure that investments are sufficiently protected” to merit the provision of insurance.207 This suggests the rather
ironic possibility that host states may have signed certain BITs not because the treaties reduce the investor’s risk, but because signing the treaties allows the investor to insure against the risk.208 The United States has
also long made the availability of foreign aid contingent upon a willingness to settle investment disputes by arbitration and in at least one case
has used its influence in a multilateral development bank to block funding for a project because the host state (Costa Rica) was resisting an investor’s demand for arbitration in an unrelated dispute.209 Whether simi206. This is (or was) the case with the German, French, Swedish, and Swiss BIT and
investment insurance programs. See MERON, supra note 164, at 40–41 (discussing the
French, German, and Swedish programs); Klebes, supra note 46, at 63 (discussing Germany); Matthias-Charles Krafft, Les Accords Bilateraux sur la Protection des Investissements Conclus par la Suisse, in FOREIGN INVESTMENT IN THE PRESENT AND A NEW
INTERNATIONAL ECONOMIC ORDER 72, 88 (Detlev Chr. Dicke ed., 1987) (Switz.); Juillard,
supra note 141, at 282–83. Klebes says that while signing a BIT was not an absolute precondition to receiving German investment insurance, it was an “important criteria,” and
apparently often a decisive one. See Klebes, supra note 46, at 63, 70–73. Klebes also
notes that signing a German BIT could also unlock access to state-sponsored “credit facilities and certain fiscal advantages.” Id. at 63. French and Swiss authorities also appear
to have had some measure of discretion in deciding whether to insure a project in the
absence of a BIT, though the extent of the discretion or its exercise is unclear.
207. UNCTAD BITS IN THE MID-1990S, supra note 2, at 1 n.3. The Convention Establishing the Multilateral Investment Guarantee Agency requires MIGA to “satisfy itself as
to . . . the investment conditions in the host country, including the availability of fair and
equitable treatment and legal protection for the investment.” World Bank: Convention
Establishing the Multilateral Investment Guarantee Agency art. 12(d)(iv), Oct. 11, 1985,
24 I.L.M. 1598.
208. See Patrick Juillard, Le réseau français des conventions bilatérales
d’investissement: à la recherché d’un droit perdu? [Bilateral Investment Treaties Entered
into by France: Remembrances of Law Past?] 13 DROIT ET PRACTIQUE DU COMMERCE
INT’L [D.P.C.I.] 9, 57–9 (1987) (Fr.).
209. Charles N. Brower & Jarrod Wong, General Valuation Principles: The Case of
Santa Elena, in INTERNATIONAL INVESTMENT LAW AND ARBITRATION: LEADING CASES
FROM THE ICSID, NAFTA, BILATERAL TREATIES AND CUSTOMARY INTERNATIONAL LAW
747 (Todd Weiler ed., 2005).
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lar pressures encourage states to sign BITs with the United States remains less than fully explored, but the U.S. business lobby, in voicing its
support for the U.S. BIT program, has explicitly urged the government to
“consider the extent to which countries’ investment policies may have
foreclosed development by private capital” before extending official aid
or supporting loans from multilateral development institutions.210
In closing, it is important to emphasize that empirical research on BITs
is admirable and welcome. Empirically minded BIT analysts have laid a
strong foundation on which future research can and should build, but
future empirical work must be carefully designed to reflect important
differences in the content of BITs and the availability of BIT substitutes.
Until the concerns highlighted above are adequately addressed, credible
commitment stories of the causes and consequences of BITs, and the statistical evidence that supports such stories, will remain much less persuasive than they otherwise might be.
210. U.S. Policy Toward International Investment: Hearings Before the Subcomm. on
International Economic Policy of the S. Comm. on Foreign Relations, 97th Cong. 173
(1981) (prepared statement of Richard W. Roberts, President, National Foreign Trade
Council, Inc., New York, N.Y.). Other kinds of linkages are plausible as well. For instance, many Belgian BITs are signed as part of a “‘package deal’ consisting of several
other treaties concerning different subjects and they are aimed at expressing the good
relationship between the two countries.” Willem Van de Voorde, Belgian Bilateral Investment Treaties as a Means for Promoting and Protecting Foreign Investment, 44
STUDIA DIPLOMATICA 87, 93 (1991). More generally, it is easy to speculate that the Eastern European states were primarily motivated to sign BITs with their Western European
neighbors in order to signal their suitability for membership in the European Union and
with the United States to signal the completeness of their rejection of Communism and
their suitability for post-Soviet foreign aid. See Kenneth J. Vandevelde, U.S. Bilateral
Investment Treaties: The Second Wave, 14 MICH. J. INT’L L. 621, 634–35 (1993) (documenting the United States’s post-1989 efforts to “encourage[]” ex-Communist states to
“negotiate and conclude” BITs as a way to advance broader U.S. foreign policy goals).
PRISONER TRANSFER BETWEEN HONG
KONG AND MAINLAND CHINA: A
PRELIMINARY ASSESSMENT
Choy Dick Wan*
INTRODUCTION
S
ince the handover of Hong Kong to the People’s Republic of China
(“PRC”), the number of cross-border crimes committed by residents of Hong Kong in mainland China (“the Mainland”) and vice versa
has increased drastically. The increase in cross-border crimes and punishments has naturally led to a rise in the number of each jurisdiction’s
residents serving sentences in the other jurisdiction. However, even
though ten years have passed since the sovereignty of Hong Kong reverted to the PRC on July 1, 1997,1 no prisoner has been transferred to
his home jurisdiction from either Hong Kong or the Mainland.
Prisoner transfer, which allows foreign prisoners to be transferred back
to their home countries to serve their remaining sentences, is internationally regarded as necessary on both humanitarian and rehabilitative
grounds.2 It also improves the administrative efficiency of prisons in jurisdictions that sentence foreigners by minimizing the costs and difficulties associated with incarcerating foreigners (such as language barriers
and different dietary habits). The principal cause of the failure to transfer
prisoners to their home jurisdictions in Hong Kong or the Mainland is the
lack of a prisoner transfer agreement (“PTA”) between the two jurisdictions.
Michal Plachta has remarked that a standing (bilateral or multilateral)
PTA is essential to international prisoner transfer because it provides “an
appropriate legal basis” for the relevant transfer and facilitates smoother
and more expedient transfers.3 However, various fundamental principles
commonly adopted in bilateral and multilateral PTAs have already
* L.L.B., P.C.L.L., L.L.M., Research Fellow, Department of Law, University of
Hong Kong. The Author would like to thank Professor Richard Cullen and Professor Fu
Hualing for their comments on earlier versions of this Article and the Editorial Board of
the Brooklyn Journal of International Law for their assistance in preparing this Article
for publication.
1. Edward A. Gargan, Hong Kong, China: The Overview; China Resumes Control of
Hong Kong, Concluding 156 Years of British Rule, July 1, 1997, N.Y. TIMES, at A1.
2. Council of Europe, Explanatory Report to the Convention on the Transfer of Sentenced Persons para. 9, available at http://conventions.coe.int/Treaty/en/Reports/Html/
112.htm [hereinafter Explanatory Report to the CTSP].
3. MICHAL PLACHTA, TRANSFER OF PRISONERS UNDER INTERNATIONAL INSTRUMENTS
AND DOMESTIC LEGISLATION: A COMPARATIVE STUDY 255 (1993).
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proved problematic in international practice. Given the fact that Hong
Kong and the Mainland are two independent jurisdictional sovereignties
under the One Country, Two Systems principle, 4 it can be anticipated
that the same problems that arise in international prisoner transfer are
likely to arise in prisoner transfer between Hong Kong and the Mainland.
Moreover, the political, legal, economic, social, and cultural differences
between the two jurisdictions can be expected to cause additional troubles and controversy. Therefore, reaching a PTA that will satisfy both
Hong Kong and the Mainland is bound to be an extremely difficult and
tedious process.
Should the prisoners in both Hong Kong and the Mainland be deprived
of the right to be transferred home to serve their remaining sentences
simply because of the lack of a PTA between the two jurisdictions? How
effective will any future Hong Kong-Mainland PTA be in facilitating
prisoner transfer between the two jurisdictions? Are there any alternatives to transfer on the basis of a standing PTA? This Article assesses the
challenges to negotiating and implementing a PTA between Hong Kong
and the Mainland and explores alternative mechanisms to facilitate prisoner transfer absent a standing PTA.
Part I of this Article briefly explains the necessity of prisoner transfer
between Hong Kong and the Mainland. Part II discusses the international
norms regarding prisoner transfer and highlights the five fundamental
principles that are commonly included in international PTAs, namely the
requirements of nationality/residence, double criminality, finality of
judgment, minimum remaining sentence, and tripartite consent. Additionally, the bilateral PTAs China and Hong Kong, respectively, have
signed with other jurisdictions will be introduced. These PTAs and the
two jurisdictions’ experiences in concluding them are useful references
in assessing the problems likely to arise in the negotiation of a PTA between Hong Kong and the Mainland. Focusing on the five fundamental
principles governing international prisoner transfer, Part III analyzes the
possible problems Hong Kong and the Mainland would face if those
principles were adopted in any future PTA between the two jurisdictions.
Part IV examines the possibility of ad hoc prisoner transfer and repatriation/deportation as alternative means to facilitate the transfer of prisoners
between Hong Kong and the Mainland, and argues that these methods
4. For detailed arguments on the jurisdictional issues between Hong Kong and the
Mainland, see, for example, H.L. Fu, The Relevance of Chinese Criminal Law to Hong
Kong and Its Residents, 27 H.K. L.J. 229 (1997); Hualing Fu, One Country and Two
Systems: Will Hong Kong and the Mainland Reach an Agreement on Rendition?, H.K.
LAWYER, Jan. 1999.
2008]
PRISONER TRANSFER
465
may be more practical, especially while a formal PTA between Hong
Kong and the Mainland has yet to be concluded.
I. THE NEED FOR A PRISONER TRANSFER MECHANISM BETWEEN HONG
KONG AND THE MAINLAND
As a direct consequence of the increase in cross-border crime between
the Mainland and Hong Kong, the Mainland-resident inmate population
in Hong Kong has soared.5 In 1999, for example, 3024 out of 11,571
prisoners in Hong Kong came from the Mainland.6 In 2003, among the
13,086 prisoners in Hong Kong, 3759 of them came from the Mainland.7
Thus, the number of Mainland prisoners increased by 24% during the
period from 1999 to 2003. 8 As of November 2005, there were 3502
Mainlanders serving sentences in Hong Kong, representing 28.8% of the
prison population.9 Despite a gradual improvement in this situation in the
last several years, Mainlanders still constituted 23% of Hong Kong’s
prison population as of mid-January 2008.10 The large Mainland prison
population in Hong Kong is particularly striking with respect to female
prisoners. Mainland women constituted about 70% of the total female
penal population in Hong Kong in 2006. 11 A majority of the female
Mainland prisoners in Hong Kong were imprisoned for breach of conditions of stay and prostitution.12
The large number of Mainland prisoners has aggravated the already
overcrowded prison conditions in Hong Kong, increasing the workload
of the penal staff and causing hardship for the inmates. 13 Given that
5. See Dennis Chong, Mainlanders Pour into Jail, THE STANDARD (H.K.), Nov. 18,
2003.
6. Id.
7. Id.
8. Id.
9. LEGISLATIVE COUNCIL SECRETARIAT, PANEL ON SECURITY, LC PAPER NO.
CB(2)755/05-06, at 5 (2005), available at http://www.legco.gov.hk/yr05-06/english/
panels/se/minutes/se051101.pdf [hereinafter LC PAPER NO. CB(2)755/05-06].
10. Jianyu jipo; Jian-guan-bu jihua chongjian Chi Ma Wan cheng-jiao-shu [Prisons
Are Overcrowded; Correction Services Department Plans to Rebuild Chi Ma Wan
Prison], WENHUI BAO [WEN HUI DAILY], Jan. 18, 2008.
11. Wendy Leung, Safety Fears for Inmates at Overcrowded Female Jails, THE
STANDARD (H.K.), Jan. 18, 2006.
12. Id.; Kristine Kwok, Jail Revamp to Create 2,600 Places in Ten Years, SOUTH
CHINA MORNING POST, Feb. 3, 2005.
13. See Kwok, supra note 12. According to the Commissioner of Correctional Services in Hong Kong, as of February 2005, prisons in Hong Kong were fourteen percent
over capacity. Id.
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Hong Kong has been a role model for the Mainland in many respects,14
the Correctional Services Department of Hong Kong has been further
stressed by the pressure to maintain the high standards of Hong Kong’s
penal system. Poor prison conditions and substandard treatment of the
inmates threatens to tarnish the image of the Hong Kong system in the
eyes of both the inmates and the Mainland authorities. Worse, it may
eventually undermine Hong Kong’s image in the international community.
Hong Kong is part of the PRC; as with most of Hong Kong’s residents,
a majority of the Mainlanders who serve sentences in Hong Kong are
ethnically Chinese.15 But there are in fact a wide range of differences
between Hong Kong residents and Mainland residents. These include
different spoken dialects, written characters, living styles, and dietary
habits.16 These differences are most palpable with respect to Mainlanders
from the northern part of China. As a result of these differences, a
Mainland prisoner in Hong Kong may have an experience not unlike a
14. For example, China drew on Hong Kong’s Independent Commission Against
Corruption as a model when considering the establishment and mode of operation of its
National Bureau of Corruption Prevention (which was established on May 31, 2007).
Xianggang dute tiwei nanyi tidai [Hong Kong’s Unique Status Is Difficult to Replace],
DAGONG BAO [DA KUNG PAO NEWS], June 29, 2007. In order to further promote
Mainland adoption of Hong Kong-style governance, Gao Siren, Director of the Liaison
Office of the Central People’s Government in the Hong Kong Special Administrative
Region (“HKSAR”), has pointed out that the Mainland could learn about economic innovation from Hong Kong. Id. In addition, Chen Cunyi, Deputy Chief of the Ministry of
Public Security’s Drug Control Bureau, has opined that Hong Kong’s anti-drug measures,
including drug use prevention and rehabilitation, and methods of combating drug-related
crimes could serve as models for counterpart measures in the Mainland. Yang Zhe, Gongan-bu gaoguan tan Xianggang jin du [High Official of Ministry of Public Security
Talked About Hong Kong’s Drug Controls], ZIJING ZAZHI WANGLUO BAN [BAUHINIA
MAGAZINE ONLINE], Mar. 2007, available at http://www.baumag.com.hk/BIG5/channel3
/03/0334.html.
15. As of January 2002, ninety percent of the inmates in Hong Kong prisons were
ethnically Chinese; 27.5% of the inmates were Mainland Chinese. See SECURITY BUREAU
OF THE HKSAR, PRISON DEVELOPMENT PLAN, LC PAPER NO. CB(2)1023/01-02(03), annex A, app. C (2002), available at http://www.legco.gov.hk/yr01-02/english/panels/se/
papers/se0207cb2-1023-3e.pdf [hereinafter LC PAPER NO. CB(2)1023/01-02(03)].
16. Faguan zhi yuyan yinshi butong zeng zuo jian zhi ku; she fei lie waiji fan huo jian
xing [Judge Pointed Out That Differences in Language and Dietary Habit Increases the
Hardship of Imprisonment; Criminals Who Illegally Entered Hong Kong Being Classified
as Foreign Prisoners and Granted Sentencing Reductions], XIN BAO [H.K. DAILY NEWS],
Sept. 15, 2001, at A5 [hereinafter Differences in Language and Dietary Habit]. For example, a majority of people in the Mainland speak Mandarin and write with simplified
Chinese characters, while a majority of the Chinese people in Hong Kong speak Cantonese and write with traditional Chinese characters.
2008]
PRISONER TRANSFER
467
non-Chinese foreign prisoner. Moreover, the strict outbound travel policy
for residents of the Mainland (though this has been substantially relaxed
in recent years)17 makes it difficult for Mainland prisoners to receive visits from their families. Overall, Mainland prisoners and foreign prisoners
face similar hardships, and both are non-locals in Hong Kong.
This similarity was captured in an opinion by a district court judge in
Hong Kong.18 In deciding a case involving a burglary by two Mainland
illegal immigrants, the judge pointed out that both Mainlanders and expatriates are “outsiders” within Hong Kong and Mainlanders should thus
be considered “foreigners.”19 Mainland prisoners, the judge noted, suffer
the same (or greater) hardships as expatriate prisoners.20 Taking this into
consideration, the judge reduced the sentences of the prisoners by two
months.21 This judgment was subsequently reversed by the Court of Appeal of the High Court on two grounds: 1) “foreignness” does not entitle
non-local prisoners, including foreign nationals and Chinese nationals, to
a reduction of sentence as a matter of right; and 2) Chinese nationals
from the Mainland are not “foreigners” because Hong Kong is a part of
China. 22 The Court of Appeal’s consideration of the “foreignness” of
both foreigners and Mainlanders as non-locals implied that both foreign
nationals and Mainlanders in Hong Kong prisons should receive equal
treatment. Furthermore, although the court emphasized that Mainlanders
should not be regarded as foreigners, it still considered the hardships that
17. One measure that relaxed the stringent outbound travel policy in the Mainland
was the Individual Visit Scheme. See Government of the Hong Kong Special Administrative Region [HKSAR], Tourism Commission, Visitor Information: Individual Visit
Scheme, http://www.tourism.gov.hk/english/visitors/visitors_ind.html (last visited Feb.
19, 2008). In the past, it was very difficult for Mainlanders to travel to Hong Kong, even
as tourists. Since the introduction of the Individual Visit Scheme on July 28, 2003, it has
become easier for Mainlanders to visit Hong Kong. As of February 2008, the scheme had
been extended to forty-nine cities in mainland China. Id.
18. Differences in Language and Dietary Habit, supra note 16.
19. Id.
20. Id. The judge noted that, as with expatriate prisoners, Mainland prisoners encounter hardships stemming from dietary differences and problems receiving visits from their
families. Id. Mainland prisoners are also discriminated against by the local prisoners in
the same way that many Mainland residents generally feel discriminated against in Hong
Kong. Id.
21. Id.; Guan zhi bi waiji jiufan geng ku; liang she ke bu guan gang jian yu huo jian
xing [Judge Pointed Out That They Suffer More Hardship Than Foreign Prisoners; Two
Illegal Immigrants Unaccustomed to Hong Kong Prison Being Granted Sentencing Reductions], SINGTAO RIBAO [SINGTAO DAILY], Sept. 15, 2001, at A13.
22. See Secretary of Justice v. Ng Kit, [2001] CAAR 14/2001, http://legalref.
judiciary.gov.hk/lrs/common/ju/judgment.jsp (C.A.).
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the two prisoners might face as Mainlanders.23 Because foreign prisoners
in Hong Kong have the right to request a transfer to their home countries
to serve their sentences (based on standing PTAs between Hong Kong
and their home countries or in the form of ad hoc transfer),24 there is no
reason, practical or theoretical, why Mainland prisoners should be deprived of such right.
II. INTERNATIONAL NORMS AND DOMESTIC LAW
A. Major Conditions for Prisoner Transfer Under International Law
The Convention on the Transfer of Sentenced Persons (“CTSP”),
drafted by the Council of Europe in 1983,25 is the foremost multilateral
treaty governing the transfer of prisoners.26 As the Explanatory Report to
the CTSP states, “[t]he purpose of the Convention is to facilitate the
transfer of foreign prisoners to their home countries by providing a procedure which is simple as well as expeditious.”27 Unlike other European
conventions, the CTSP is open to both member states and non-member
states of the Council of Europe. 28 As of February 2008, forty-seven
member states and seventeen non-member states had signed and/or ratified the CTSP.29
In 1985, almost two years after the entry into force of the CTSP, the
United Nations adopted the Model Agreement on the Transfer of Foreign
Prisoners (“Model Agreement”). 30 The Model Agreement is largely a
23. Id.
24. SECURITY BUREAU OF THE HKSAR, PROVISIONAL LEGISLATIVE COUNCIL PANEL ON
SECURITY, TRANSFER OF PRISONERS (1997), available at http://www.legco.gov.hk/yr9798/english/panels/se/papers/se2011-5.htm [hereinafter SECURITY BUREAU, TRANSFER OF
PRISONERS].
25. Council of Europe Convention on the Transfer of Sentenced Persons, Mar. 21,
1983, 1496 U.N.T.S. 92, 22 I.L.M. 530 [hereinafter CTSP].
26. Torben Akel, Barred from Jail Time at Home, N.Z. HERALD, Dec. 8, 2007, available at http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10481059&p
num=0.
27. Explanatory Report to the CTSP, supra note 2, para. 8.
28. CTSP, supra note 25, art. 19.
29. Council of Europe, Convention on the Transfer of Sentenced Persons: Status,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=112&CM=8&DF=&CL
=ENG (last visited Feb. 19, 2008) [hereinafter CTSP Status].
30. United Nations [U.N.] Dep’t of Int’l and Soc. Affairs, Seventh U.N. Congress on
the Prevention of Crime and the Treatment of Offenders, Report Prepared by the Secretariat, annex 1, Model Agreement on the Transfer of Foreign Prisoners, U.N. Doc.
A/CONF.121/22/Rev.1 (1986) [hereinafter Model Agreement]. See also Seventh U.N.
Congress on the Prevention of Crime and the Treatment of Offenders, Formulation and
Application of United Nations Standards and Norms in Criminal Justice: Model Agree-
2008]
PRISONER TRANSFER
469
simplified version of the CTSP. Both documents set out five major conditions for prisoner transfer.
1. Nationality/Residency Status. Under the CTSP and the Model
Agreement, to be eligible for a transfer, a prisoner must be a national or
resident of the state to which he requests a transfer.31
2. Double Criminality. According to international practice, a prisoner
transfer can be carried out only if the double criminality requirement is
fulfilled, i.e., the act that forms the basis of the foreign prisoner’s conviction is a crime under the laws of both the sentencing state and the receiving state. 32 The double criminality principle saves the receiving state
from imprisoning a person in its territory for an offense that is not a
crime under its law and from any possible legal or constitutional conflict
arising from the enforcement of a foreign sentence that has no basis in its
domestic laws.33
3. Finality of Judgment. Under both the CTSP and the Model Agreement, a transfer can only be conducted if the relevant judgment is final;
that is, the prisoner must have exhausted all available remedies in the
sentencing state or the time limit for seeking those remedies has expired.34
4. Minimum Remaining Sentence. Both the CTSP and the Model
Agreement set the minimum duration of sentence remaining to be served
by the prisoner at the time he applies for a transfer at six months.35 This
ment on the Transfer of Foreign Prisoners and Recommendations for the Treatment of
Foreign Prisoners, pt. 1, U.N. Doc. A/CONF.121/10 (Apr. 25, 1985) [hereinafter Explanatory Notes on the Model Agreement].
31. CTSP, supra note 25, art. 3(1)(a); Model Agreement, supra note 30, para. 1.
32. The double criminality principle does not require the act committed by the prisoner to be classified as exactly the same offense under the laws of the sentencing state
and the receiving state. The Explanatory Report to the CTSP comments:
For the condition of dual criminal liability to be fulfilled it is not necessary that
the criminal offence be precisely the same under both the law of the administering State and the law of the sentencing State. There may be differences in the
wording and legal classification. The basic idea is that the essential constituent
elements of the offence should be comparable under the law of both States.
Explanatory Report to the CTSP, supra note 2, para. 24.
33. See PLACHTA, supra note 3, at 306–07.
34. See CTSP, supra note 25, art. 3(1)(b); Model Agreement, supra note 30, para. 10.
35. CTSP, supra note 25, art. 3(1)(c); Model Agreement, supra note 30, para. 11.
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requirement is a practical necessity on three grounds. First, prisoner
transfer is a complicated and time-consuming process because of differences in political and legal systems, diplomatic considerations, and very
often language differences between the two countries or jurisdictions
involved in the transfer.36 The government authorities of the sentencing
state and the receiving state need sufficient time to process a transfer application. Second, the rehabilitation objective of prisoner transfer “can
usefully be pursued only where the length of the sentence still to be
served is sufficiently long.”37 Third, given the financial implications of a
prisoner transfer for both the sentencing state and the receiving state (and
the latter in particular), at least according to the Explanatory Report to
the CTSP, a prisoner transfer is worth implementing only if the expense
incurred is “proportionate to the purpose to be achieved” on the ground
of cost-effectiveness.38
5. Tripartite Consent. This condition embodies the humanitarian principle underlying prisoner transfers in that, in general, a transfer can only
be conducted with the consent of the sentencing state, the receiving state,
and the prisoner concerned.39 A transfer without the consent of the prisoner may only be carried out in very limited circumstances. For example,
if, due to the age, physical condition, or mental health of the prisoner,
either the sentencing state or the receiving state considers the prisoner
unfit to consent, a legal representative may give consent on his behalf.40
With the adoption of the Additional Protocol to the CTSP (“Additional
Protocol”) by the Committee of Ministers of the Council of Europe on
December 18, 1997,41 transfer in the absence of a prisoner’s consent may
36. See Explanatory Notes on the Model Agreement, supra note 30, para. 22.
37. Explanatory Report to the CTSP, supra note 2, para. 22. However, in practice
many prisoners are given parole after being transferred back to the receiving state. For
example, almost one-third of the first group of Americans to be transferred from Mexico
to the United States in December 1977 under the Mexican-American PTA were eligible
for parole as soon as they returned to the United States. Abraham Abramovsky & Steven
J. Eagle, A Critical Evaluation of the Mexican-American Transfer of Penal Sanctions
Treaty, 64 IOWA L. REV. 275, 275 (1979).
38. Explanatory Report to the CTSP, supra note 2, para. 22.
39. CTSP, supra note 25, art. 3(1)(d), (f); Model Agreement, supra note 30, para. 5.
40. See CTSP, supra note 25, art. 3(1)(d); Explanatory Report to the CTSP, supra
note 2, para. 23; Model Agreement, supra note 30, para. 9; Explanatory Notes on the
Model Agreement, supra note 30, para. 19.
41. Council of Europe Additional Protocol to the Convention on the Transfer of Sentenced Persons, Dec. 18, 1997, 37 I.L.M. 560 [hereinafter Additional Protocol to the
CTSP]. See also Council of Europe, Explanatory Report to the Additional Protocol to the
Convention on the Transfer of Sentenced Persons, available at http://conventions.coe.
2008]
PRISONER TRANSFER
471
be conducted in two more circumstances: 1) when a prisoner has fled the
sentencing state for his home country before fully serving the prison term
in the sentencing state42 and 2) when the conviction results in an expulsion or deportation order that precludes the prisoner from remaining in
the territory of the sentencing state following release from prison.43 Notwithstanding that each of the three parties has an interest in a prisoner
transfer, the ultimate aim of a prisoner transfer is to benefit the prisoner,
and a prisoner’s consent should have greater weight than that of the other
two parties. Unfortunately, as will be demonstrated in subsequent sections of this Article, the issue of prisoner consent can easily be disregarded by the sentencing state, the receiving state, or both.44
B. Bilateral PTAs
1. China’s Bilateral PTAs with Other Countries
Concluding a PTA is a relatively new experience for the PRC. According to the Ministry of Foreign Affairs, the first PTA the PRC entered into
was with Ukraine in July 2001.45 As of July 2006, the PRC had signed
only three bilateral PTAs. In addition to the one with Ukraine, two others
were signed with Russia and Spain in December 2002 and November
2005, respectively.46
While the PRC has not signed the CTSP, the contents of the bilateral
PTAs it has signed are largely consistent with the CTSP and the Model
int/Treaty/EN/Reports/HTML/167.htm [hereinafter Explanatory Report to the Additional
Protocol to the CTSP].
42. Additional Protocol to the CTSP, supra note 41, art. 2. See also Explanatory Report to the Additional Protocol to the CTSP, supra note 41, paras. 10–20.
43. Additional Protocol to the CTSP, supra note 41, art. 3. See also Explanatory Report to the Additional Protocol to the CTSP, supra note 41, paras. 21–36.
44. See infra Parts II.B.1, IV.A.
45. Zhonghua Renmin Gongheguo he Wukelan guanyu yi guan bei pan xing ren
de tiaoyue [Treaty on the Transfer of Sentenced Persons, P.R.C-Ukr.], July 21, 2001,
3 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 205 (2002), available
at http://210.82.31.30/zgrdw/common/zw.jsp?label=WXZLK&id=295150&pdmc=rdgb
[hereinafter P.R.C.-Ukr. PTA].
46. Zhonghua Renmin Gongheguo he Eluosi guanyu yi guan bei pan xing ren
de tiaoyue [Treaty on the Transfer of Sentenced Persons, P.R.C.-Russ.], Dec. 2, 2002, 1
STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 48 (2004), available at http://210.82.31.
30/zgrdw/common/zw.jsp?label=WXZLK&id=327812&pdmc=rdgb [hereinafter P.R.C.Russ. PTA]; Zhonghua Renmin Gongheguo he Xibanya guanyu yi guan bei pan xing
ren de tiaoyue [Treaty on the Transfer of Sentenced Persons, P.R.C.-Spain], Apr. 18,
2005, 5 STANDING COMM. NAT’L PEOPLE’S CONG. GAZ. 48 (2006), available
at http://210.82.31.30/zgrdw/common/zw.jsp?label=WXZLK&id=350141&pdmc=rdgb
[hereinafter P.R.C.-Spain PTA].
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Agreement, with three exceptions. First, instead of six months, the minimum duration of remaining sentence in all three of the PRC’s bilateral
PTAs is one year.47 Second, express provisions in the PTAs with Ukraine
and Russia prohibit the transfer of prisoners in the following circumstances: 1) when one party to the agreement considers that the transfer
will harm its sovereignty, security, and public order, or violate fundamental principles of its domestic law;48 2) the sentenced person has not
cleared his debt in the sentencing state or he is a party to lawsuits pending in the sentencing state;49 3) the sentenced person was convicted for
the crime of endangering national security;50 and 4) the sentenced person
received a death sentence or life imprisonment.51 Third, the PTAs with
Ukraine and Russia grant the signatories considerable discretion, providing that each state has “the autonomy to decide on its own whether to
consent to a transfer requested by the other party.”52
2. Hong Kong’s Bilateral PTAs with Other Countries
The United Kingdom ratified the CTSP on April 30, 1985.53 The CTSP
was given legal effect in the United Kingdom by virtue of the Repatriation of Prisoners Act 1984 (“RPA”), which was passed after the United
Kingdom signed the CTSP.54 As with other international agreements that
the United Kingdom had signed, the CTSP (or to be more precise, the
RPA) was extended to some of the colonies of the United Kingdom in
the form of two Orders-in-Council, namely the Repatriation of Prisoners
(Overseas Territories) Order 1986 and the Repatriation of Prisoners
(Overseas Territories) (Amendment) Order 1987.55 These two Orders-in47. P.R.C.-Ukr. PTA, supra note 45, art. 4.3; P.R.C.-Russ. PTA, supra note 46, art.
5.3; P.R.C.-Spain PTA, supra note 46, art. 2.1.1.
48. P.R.C.-Ukr. PTA, supra note 45, art. 5.1.1; P.R.C.-Russ. PTA, supra note 46, art.
6.1.1.
49. P.R.C.-Ukr. PTA, supra note 45, art. 5.1.2; P.R.C.-Russ. PTA, supra note 46, art.
6.1.3.
50. P.R.C.-Russ. PTA, supra note 46, art. 6.1.2. This clause only appears in the PTA
between the PRC and Russia.
51. P.R.C.-Russ. PTA, supra note 46, art. 6.1.4. Transfer of prisoners sentenced to
life imprisonment is possible under the PTAs the PRC has signed with Ukraine and
Spain. See P.R.C.-Ukr. PTA, supra note 45, art. 1.4; P.R.C.-Spain PTA, supra note 46,
art. 7.3.
52. P.R.C.-Ukr. PTA, supra note 45, art. 5.2; P.R.C.-Russ. PTA, supra note 46, art.
6.2.
53. CTSP Status, supra note 29.
54. See HONG KONG HANSARD, Sept. 3, 1997, available at http://www.legco.gov.hk/
yr97-98/english/counmtg/hansard/970903fe.htm.
55. Re Yung Kwan Lee & Others, [1999] 2 H.K.C.F.A.R. 245, 245 (C.F.A.); HONG
KONG HANSARD, Sept. 3, 1997, supra note 54; Janice Brabyn, Inter-Jurisdictional Co-
2008]
PRISONER TRANSFER
473
Council were the basis for prisoner transfer between Hong Kong and
twenty-five countries (including the United Kingdom) until its reunification with the PRC on July 1, 1997.56
After the sovereignty of Hong Kong reverted to the PRC, the two Orders-in-Council were no longer binding legal authority in Hong Kong.
However, before the handover, the then Colonial Government had begun
to negotiate PTAs with other countries in its own capacity in order to
prevent a legal vacuum.57 At the same time, the Colonial Government
also prepared local legislation to give effect to the PTAs it concluded.58
On April 9, 1997, the Bill on the Transfer of Sentenced Persons Ordinance (“TSPO”) was tabled in the Legislative Council (“LegCo”).59 As
the Secretary for Security explained, the aim of the bill was “to enable
Hong Kong to implement our new [transfer of sentenced persons]
agreements with other jurisdictions.”60 On May 21, 1997, the bill finally
passed, with only minor technical amendments.61 The TSPO entered into
force on June 6, 1997 and survived the handover.62 The TSPO is merely
a local recreation of the RPA, and four of the major conditions for transfer under the CTSP, namely the nationality/residency requirement, double criminality, finality of judgment, and tripartite consent, were included
in it.63
The TSPO is simply the enabling legislation that gives effect to the bilateral PTAs signed by Hong Kong and other countries. It can only operate pursuant to the bilateral arrangements. The TSPO is silent on the nature of the bilateral arrangements to which it gives effect. However, the
Secretary for Security has emphasized that they can be in the form of
Operation in Criminal Matters: Extradition, Mutual Legal Assistance, Prisoner Transfer
to and from the HKSAR, in THE NEW LEGAL ORDER IN HONG KONG 139 (Raymond
Wacks ed., 1999).
56. Re Yung Kwan Lee & Others, [1999] 2 H.K.C.F.A.R. at 245; HONG KONG
HANSARD, Sept. 3, 1997, supra note 54; HONG KONG HANSARD, Apr. 9, 1997, at 59–60,
available at http://www.legco.gov.hk/yr96-97/english/lc_sitg/hansard/970409fa.doc;
Brabyn, supra note 55, at 139–40.
57. Hong Kong signed a PTA with the United States on April 15, 1997. SECURITY
BUREAU, TRANSFER OF PRISONERS, supra note 24.
58. See HONG KONG HANSARD, Apr. 9, 1997, supra note 56, at 59–60.
59. Id. at 59.
60. Id. at 60.
61. HONG KONG HANSARD, May 21, 1997, at 159, 162, available at http://www.
legco.gov.hk/yr96-97/english/lc_sitg/hansard/970521fe.doc.
62. SECURITY BUREAU, TRANSFER OF PRISONERS, supra note 24.
63. Transfer of Sentenced Persons Ordinance, (1997) Cap. 513, § 4, translated in
http://www.legislation.gov.hk/eng/home.htm (last visited Apr. 21, 2008) (H.K.).
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standing agreements or arrangements on an ad hoc basis.64 As of April
2006, Hong Kong had signed bilateral agreements with nine jurisdictions, namely Australia, Italy, the Philippines, Portugal, Sri Lanka, Thailand, the United Kingdom, the United States, and Macau.65 As with the
TSPO, all of these PTAs were largely based on the CTSP and the Model
Agreement.
The PTA with Macau is significant because it is the first regional PTA
Hong Kong has signed with another part of the PRC. The Hong KongMacau PTA was signed on May 20, 200566 pursuant to article 95 of the
Basic Law of the Hong Kong Special Administrative Region
(“HKSAR”) and article 93 of the Basic Law of the Macau Special Administrative Region (“Macau SAR”). 67 Because section 2(a)(ii) of the
TSPO expressly limited the prisoner transfers it would govern to those
between Hong Kong and “place[s] outside the People’s Republic of
China,”68 LegCo passed the Transfer of Sentenced Persons (Amendment)
(Macau) on June 29, 2005, which expanded the scope of application of
the TSPO to Macau69 and allowed the TSPO to serve as a basis for implementing a PTA between Hong Kong and Macau.70
64. Press Release, Hong Kong Government Information Centre, LCQ8: Transfer of
Sentenced Persons (Mar. 13, 2002), available at http://www.info.gov.hk/gia/general/
200203/13/0313286.htm [hereinafter LCQ8: Transfer of Sentenced Persons].
65. See Department of Justice of the HKSAR, Treaties and International Agreements,
http://www.legislation.gov.hk/table5ti.htm (follow hyperlinks for each of the agreements); Arrangement on the Transfer of Sentenced Persons, H.K.-Mac., May 25, 2005,
translated in http://www.legislation.gov.hk/intracountry/eng/pdf/macao/tsp.pdf [hereinafter Hong Kong-Macau PTA].
66. See Hong Kong-Macau PTA, supra note 65.
67. Article 95 of the Basic Law of the HKSAR provides that “[t]he Hong Kong Special Administrative Region may, through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may
render assistance to each other.” XIANGGANG JI BEN FA [BASIC LAW OF THE HONG KONG
SPECIAL ADMINISTRATIVE REGION] art. 95, translated in http://www.info.gov.hk/basic_
law/fulltext/index.htm (last visited Apr. 21, 2008). Article 93 of the Basic Law of the
Macau Special Administrative Region (“Macau SAR”) provides that “[t]he Macao Special Administrative Region may, through consultations and in accordance with law, maintain judicial relations with the judicial organs of other parts of the country, and they may
render assistance to each other.” Basic Law of the Macau Special Administrative Region
art. 93, translated in LAWINFOCHINA (last visited Apr. 16, 2008).
68. Transfer of Sentenced Persons Ordinance, (1997) Cap. 513, § 2(a)(ii).
69. HONG KONG HANSARD, June 29, 2005, at 9128–39, available at http://www.
legco.gov.hk/yr04-05/english/counmtg/hansard/cm0629ti-translate-e.pdf.
70. Id. at 9128–39. Because this amendment was limited by its terms to transfers
between Macau and Hong Kong, it does not encompass transfers between Hong Kong
and any other areas of the PRC. To effectuate a PTA between Hong Kong and the rest of
the PRC, the Legislative Council would be required to amend the TSPO accordingly.
2008]
PRISONER TRANSFER
475
III. CHALLENGES FOR A FUTURE HONG KONG-MAINLAND PTA
Negotiation of a PTA between Hong Kong and the Mainland commenced in March 2000.71 Although the details of the discussions have
not been announced, it is generally believed that a future Hong KongMainland PTA will be consistent with international practice and will include more or less the same provisions as the international PTAs.72 The
substance of the negotiations has been concerned mainly with the major
principles and provisions underlying the TSPO and the bilateral PTAs
Hong Kong has signed with other countries.73 Under the principle of One
Country, Two Systems, Hong Kong’s jurisdiction is not subordinate to
the PRC or to any other state,74 and consequently it has been perfectly
appropriate for negotiators to examine these preexisting agreements with
a view to adopting international prisoner transfer principles and practice
in any future Hong Kong-Mainland PTA.
However, even if international principles and practices are followed,
one can anticipate many problems that would arise regarding prisoner
transfer between Hong Kong and the Mainland, given the great legal,
political, economic, and social differences between the two jurisdictions.
Focusing on the aforementioned five major conditions for prisoner transfer, the following sections examine issues arising from their inclusion in
a Hong Kong-Mainland PTA and some practical problems in their implementation.
A. Nationality/Residency Status
Consistent with international practice, the nationality requirement was
adopted in all PTAs Hong Kong has signed, excluding the one with
Macau.75 Because Hong Kong and Macau are special administrative re71. Press Release, Hong Kong Government Information Centre, LCQ20: Work on
Transfer of Sentenced Persons Arrangements with the Mainland in Progress (Nov. 16,
2005), available at http://www.info.gov.hk/gia/general/200511/16/P200511160203.htm.
72. See id.
73. Press Release, Hong Kong Government Information Centre, LCQ6: Transfer of
Sentenced Persons (June 30, 2004), available at http://www.info.gov.hk/gia/general/
200406/30/0630280.htm [hereinafter LCQ6: Transfer of Sentenced Persons]; Press Release, Hong Kong Government Information Centre, LCQ7: Discussions with Mainland
Authorities on Transfer of Sentenced Persons Continue (Dec. 1, 2004), available at
http://www.info.gov.hk/gia/general/200412/01/1201166.htm.
74. See supra note 4 and accompanying text.
75. See, e.g., Agreement on the Transfer of Sentenced Persons, H.K.-Fr., art. 3(a),
May 1, 2008, translated in http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in “France” row) [hereinafter Hong Kong-France PTA]. For additional examples, see Department of Justice of the HKSAR, Treaties and International
Agreements, supra note 65. See also Hong Kong-Macau PTA, supra note 65.
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gions within the PRC and most people in these two jurisdictions are nationals of the PRC, the determining factor for transfer eligibility is
whether the prisoner concerned is a “permanent resident” of the receiving jurisdiction.76 The term permanent resident is defined in the relevant
parts of the Basic Law of the HKSAR and the Basic Law of the Macau
SAR.77
In addition to the nationality requirement, under some bilateral PTAs
between Hong Kong and other countries, a prisoner who can prove that
he has “close ties” with the receiving state may also be eligible for transfer. 78 The close ties requirement is also included in the PTA between
Hong Kong and Macau. 79 However, unlike the permanent resident requirement, the term “close ties” has not been defined in the relevant
agreements or any law of Hong Kong.80 The Hong Kong Security Bureau
(“Security Bureau”) has said that the term will be given its ordinary
meaning, and in determining whether a prisoner has close ties with the
receiving state, the individual circumstances of each case will be taken
into account. 81 Additionally, the Security Bureau has announced that
guidelines for what constitutes close ties will be synthesized after the
accumulation of a significant number of precedents.82 However, the close
76. See Hong Kong-Macau PTA, supra note 65, art. 4(2).
77. XIANGGANG JI BEN FA [BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE
REGION] art. 24, translated in http://www.info.gov.hk/basic_law/fulltext/index.htm (last
visited Apr. 21, 2008); Basic Law of the Macau Special Administrative Region art. 24,
translated in LAWINFOCHINA (last visited Apr. 16, 2008).
78. For example, the “close ties” requirement is included in the PTAs Hong Kong
signed with Australia, the Philippines, Portugal, and the United Kingdom. See Agreement
on the Transfer of Sentenced Persons, H.K.-Austl., art. 4(b)–(c), Nov. 25, 2005, translated in http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in
“Australia” row) [hereinafter Hong Kong-Australia PTA]; Agreement on the Transfer of
Sentenced Persons, H.K.-Phil., art. 4(b), Apr. 28, 2002, translated in
http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in “Philippines” row) [hereinafter Hong Kong-Philippines PTA]; Agreement on the Transfer of
Sentenced Persons, H.K.-Port., art. 4(b)–(c), May 24, 2001, translated in
http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in “Portugal” row); Agreement on the Transfer of Sentenced Persons, H.K.-U.K., art. 4(b)–(c),
Nov. 5, 1997, translated in http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in “United Kingdom” row) [hereinafter Hong Kong-United Kingdom
PTA].
79. Hong Kong-Macau PTA, supra note 65, art. 4(2).
80. HKSAR LEGISLATIVE COUNCIL SECRETARIAT, REP. OF THE BILLS COMM. ON
TRANSFER OF SENTENCED PERSONS (AMENDMENT) (MACAU) BILL, LC PAPER NO.
CB(2)2018/04-05, at 4–5 (2005), available at http://www.legco.gov.hk/yr04-05/english/
bc/bc53/reports/bc53cb2-rpt-e.pdf [hereinafter LC PAPER NO. CB(2)2018/04-05].
81. Id. at 4.
82. Id. at 5.
2008]
PRISONER TRANSFER
477
relationship between Hong Kong and Macau may complicate the application of the close ties requirement. For example, does a convicted Hong
Kong resident who travels and works in both jurisdictions and who has
family members living in Macau have the right kind and degree of contact with Macau to satisfy the test?
As mentioned above, the PTA between Hong Kong and Macau is the
first regional PTA in “Greater China.”83 Therefore, certain aspects of this
agreement are likely to be used as a blueprint for a future Hong KongMainland PTA. The residency status of prisoners eligible for transfer is
certain to be one of the aspects considered. Although there is no concept
of permanent resident in the Mainland, according to the Law of the PRC
on Resident Identity Cards, every citizen who resides in the Mainland
and is over the age of sixteen should apply for an identity card.84 Ascertaining Mainland prisoners’ eligibility for transfer from Hong Kong may
therefore turn on possession of a PRC identity card, rather than on the
concept of permanent residency.
The uncertainties that accompany the close ties test in the Hong KongMacau PTA are likely to be even more problematic in that test’s application under a future Hong Kong-Mainland PTA. Compared with Macau
residents, the number of Mainland residents traveling to Hong Kong has
been much higher.85 Since the handover, many policies of the governments of Hong Kong and the Mainland, such as the Mainland’s opening
of more business sectors to Hong Kong residents and preferential treatment for Hong Kong business in the Mainland under the Closer Economic Partnership Arrangement (“CEPA”) on the one hand,86 and Hong
Kong’s recruitment of elite professionals and laborers from the Mainland
83. See supra notes 65–70 and accompanying text. The term “Greater China” includes Mainland PRC, the HKSAR, the Macau SAR, and Taiwan.
84. The Law on Resident Identity Cards provides that “[a]ny Chinese citizens who are
16 years old or older, and who reside within the People’s Republic of China shall apply
for the identity card; those under 16 years old may apply for it in accordance with the
present Law.” Law on Resident Identity Cards art. 2, June 28, 2003 (effective Jan. 1,
2004), translated in LAWINFOCHINA (last visited Feb. 20, 2008) (P.R.C.).
85. For example, between 2006 and 2007, while 13,777,735 Mainland residents had
visited Hong Kong, the number of visitors from Macau was only 594,450. IMMIGRATION
DEP’T OF THE HKSAR, ANNUAL REPORT 2006–2007 apps., Statistics on Incoming Visitors
by County/Territory of Residence, available at http://www.immd.gov.hk/a_report_
06-07/west/appendices/appendices08.htm.
86. For details on the Closer Economic Partnership Arrangement (“CEPA”), see
Trade and Industry Department of the HKSAR, Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA), http://www.tid.gov.hk/english/cepa/legaltext/
cepa_legaltext.html (last visited Apr. 8, 2008).
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on the other,87 have resulted in a large number of people (primarily the
working population) with ties to both jurisdictions. Most of these people
temporarily reside in one jurisdiction for work purposes and ultimately
spend more time in that jurisdiction than the jurisdiction from which they
originally came. 88 Such ties to the new jurisdiction are sometimes cemented by marriage or purchases of property. 89 Under these circumstances, how does one determine with which jurisdiction a person has
closer ties? Apart from these cross-border working populations, the close
ties test may also cause controversy with respect to Mainland one-way
permit holders who have just arrived in Hong Kong. Although these oneway permit holders are new to Hong Kong, because close family ties to
Hong Kong residents is a condition of the permit, the one-way permit is
arguably prima facie evidence of close ties with Hong Kong.90 Despite
having close ties to Hong Kong, however, in practice, given the poor
prison conditions in the Mainland, residency status eligibility requirements may largely be utilized to prevent Mainlanders serving sentences
in Mainland prisons from taking advantage of a future PTA to request
transfer to Hong Kong.
87. Hong Kong implemented the Admission Scheme for Mainland Talents and Professionals in 2003, and from 2004 to 2005, 4320 applicants were admitted to work in
Hong Kong. IMMIGRATION DEP’T OF THE HKSAR, ANNUAL REPORT 2004–2005, at 31
(2005) (on file with author).
88. See, e.g., CENSUS AND STATISTICS DEP’T OF THE HKSAR, GENERAL HOUSEHOLD
SURVEY: SUMMARY OF SURVEY FINDINGS: HONG KONG RESIDENTS WORKING IN THE
MAINLAND OF CHINA (2005). According to a survey of the Census and Statistics Department of the HKSAR, about 237,500 Hong Kong residents worked in the Mainland in
2004. Id.
89. See Jin nian Gang ren zai neidi zhi ye qingkuang [The Situation of Hong Kong
Residents Purchasing Property in the Mainland in Recent Years], XINXI SHIBAO
[INFORMATION TIMES], June 15, 2007, available at http://www.hkcna.hk/doc/2007/200706-15/14978.shtml; Zhang Ming, Gang ren bei shang ying qu zhe zhong; liang di kua
jing hunyin qunian da 1.1 wan zong [Many Hong Kong Men Head to the Mainland to
Find a Wife, Cross-Border Marriages Last Year Reached 11,000], ZHONGGUO XINWEN
WANG [CHINA NEWS NET], Oct. 14, 2004, available at http://www.cns.hk:89/news/2004/
2004-10-14/26/494236.shtml.
90. According to the immigration policy of Hong Kong, a Mainlander who wants to
settle in Hong Kong must obtain approval from the relevant Public Security Bureau Office in the Mainland. XIANGGANG JI BEN FA [BASIC LAW OF THE HONG KONG SPECIAL
ADMINISTRATIVE REGION] art. 22, translated in http://www.info.gov.hk/basic_law/
fulltext/index.htm (last visited Apr. 21, 2008); Immigration Department of the HKSAR,
Arrangement for Entry to Hong Kong from Mainland China, http://www.immd.
gov.hk/ehtml/hkvisas_9.htm (last visited Feb. 21, 2008). The document issued by the
office approving a Mainlander’s stay in Hong Kong is commonly known as a “One-way
Permit,” and only children, spouses, elderly relatives, and heirs of Hong Kong residents
are granted One-way Permits. Immigration Department of the HKSAR, supra.
2008]
PRISONER TRANSFER
479
B. Double Criminality
The Basic Law of the HKSAR guarantees that, except for those laws
listed in its annex III, national laws of the PRC are not applicable in
Hong Kong so that Hong Kong is allowed to continue to enforce its own
bodies of law.91 Because the Criminal Law of the People’s Republic of
China (“Criminal Law”) is not listed in annex III, it cannot be enforced
in Hong Kong.92 As a result, within the sovereign territory of the PRC,
Hong Kong and the Mainland have distinct criminal laws. Given the different political, social, and economic conditions in Hong Kong and the
Mainland, there are some notable differences in the two bodies of criminal law. Certain acts are crimes only in one jurisdiction and not in the
other. Due to such differences, the principle of double criminality will
limit prisoner transfer between Hong Kong and the Mainland. The offense involved in Li Guangqiang’s case illustrates this point.
On January 28, 2002, Li, a Hong Kong resident, was sentenced to two
years’ imprisonment and a fine of ¥150,000 by the Fuqing City People’s
Court in Fuzhou for an “illegal business operation” (engaging in the unauthorized trading of overseas publications)93 under article 225(1) of the
Criminal Law.94 The publications involved in this case were 16,280 Bi91. XIANGGANG JI BEN FA [BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE
REGION] arts. 8, 18, translated in http://www.info.gov.hk/basic_law/fulltext/index.htm
(last visited Apr. 21, 2008).
92. H.L. Fu, Comment, The Battle of Criminal Jurisdictions, 28 H.K. L.J. 273, 275
(1998).
93. Hong Kong Businessman Li Guangqiang Obtains Medical Parole, BBC ONLINE,
Feb. 9, 2002, available at http://www.chinaaffairs.org/gb/detail.asp?id=11623.
94. Article 225 of the Criminal Law of the People’s Republic of China (“Criminal
Law”) provides that:
Whoever, in violation of state stipulations, has one of the following illegal
business acts, which disrupts the market order and when the circumstances are
serious, is to be sentenced to not more five years of fixed-term imprisonment,
criminal detention, and may in addition or exclusively be sentenced to a fine
not less than 100 percent and not more than 500 percent of his illegal income
and, where the circumstances are particularly serious, be sentenced to not less
than five years of fixed-term imprisonment and a fine not less than 100 percent
and not more than 500 percent of his illegal income or the confiscation of his
property:
(1) engage in the monopoly business or monopolized commodities
stipulated in laws and administrative regulations, or other commodities whose purchase and sale are controlled, without permission;
(2) purchase and sell import-export licenses, certificates of origin,
and operation permits or approved documents stipulated by other
laws and administrative regulations;
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bles, and they were alleged to have been shipped to a Mainland underground Christian sect considered by the Chinese government to be an
illegal cult.95
Even if there were a PTA between Hong Kong and the Mainland,
given the double criminality condition, Li would not have qualified for
transfer because the act he was imprisoned for (i.e., transporting Bibles)
is not a crime under the laws of Hong Kong. Similarly, Mainland prisoners imprisoned in Hong Kong for offenses like cruelty to non-endangered
animals (such as dogs and cats) 96 or claiming to be triad members, 97
which are not offenses under Chinese criminal law, will not benefit from
any future prisoner transfer arrangement because there are no analogous
offenses in the Mainland. Li’s case highlights the fact that in certain circumstances the application of the double criminality requirement may
lead to absurd results and injustice.98
(3) conduct other illegal business activities that seriously disrupt the
market order.
Criminal Law art. 225, translated in LAWINFOCHINA (last visited Apr. 16, 2008) (P.R.C.).
95. Hong Kong Businessman Li Guangqiang Obtains Medical Parole, supra note 93.
Li’s conviction was much more lenient than was expected, for he was originally charged
with using superstitious societies to undermine the implementation of laws and regulations under article 300(1) of the Criminal Law, a more serious offense punishable by
more than seven years’ imprisonment. Id. Li returned to Hong Kong on February 9, 2002
(within two weeks of his conviction) on medical grounds because he was infected with
hepatitis B. Id.
96. Currently, China only has legislation to protect rare and endangered animals,
namely the Law on the Protection of Wildlife. See Law on the Protection of Wildlife,
translated in LAWINFOCHINA (last visited Apr. 16, 2008) (P.R.C.); Guan ai dong wu you
zhu ti sheng cheng shi wen ming chengdu [Compassion for Animals Helps Promote the
City’s Level of Culture], NANFANG DUSHI BAO [SOUTH METROPOLITAN DAILY], Jan. 18,
2008, available at http://www.nanfangdaily.com.cn/southnews/dd/dsb/sz36/2008011
80518.asp. In Hong Kong, the maximum penalty for cruelty to animals under the Prevention of Cruelty to Animals Ordinance is a fine of HK$200,000 and imprisonment for
three years. Prevention of Cruelty to Animals Ordinance, (2006) Cap. 169, § 3, translated
in http://www.legislation.gov.hk/eng/home.htm (last visited Apr. 21, 2008) (H.K.).
97. The term “triad societies” refers to crime syndicates, similar to mafia, in Hong
Kong. Under section 20 of the Societies Ordinance, the maximum penalty for any person
who claims to be a member of a triad society is HK$100,000 and imprisonment for three
years in the case of a first conviction for that offense, and HK$250,000 and imprisonment
for seven years in the case of a second or subsequent conviction for that offense. Societies Ordinance, (1997) Cap. 151, § 20(2), translated in http://www.legislation.gov.hk/
eng/home.htm (last visited Apr. 21, 2008) (H.K.).
98. A similar argument has been made by Justice J. Dowd of Australia. See KAREN
SAMPFORD, THE PRISONERS INTERNATIONAL TRANSFER (QUEENSLAND) BILL 1997, LEGIS.
BULL. NO 11/97, at 12–13 (1997), available at http://www.parliament.qld.gov.au/view/
publications/documents/research/legislationBulletins/1997/lb1197ks.pdf.
2008]
PRISONER TRANSFER
481
The transfer of political offenders presents an even more controversial
situation. There is much less tolerance for political speeches and acts in
the Mainland than in Hong Kong.99 The same acts and speeches that are
totally lawful when made in Hong Kong might be regarded as criminal in
the Mainland.100 This poses a dilemma for the authorities in Hong Kong:
to adopt the double criminality condition would lead to the absurd results
described above; to forego the condition may give rise to constitutional
issues when a returned Hong Kong resident is jailed in a Hong Kong
prison for an act that is not a crime under Hong Kong law.
C. Finality of Judgment
Finality of judgment is one of the essential conditions for prisoner
transfer under both the CTSP and the Model Agreement, but it can also
provide an excuse to reject a transfer request. The ordeal of two American teenage girls who were imprisoned in Peru is the best illustration of
the detrimental effect of the requirement.101
On September 25, 1996, two teenage American girls were arrested for
drug trafficking in Peru.102 Soon after their arrest, the two girls were detained without charge in a deplorable Peru prison for one and a half
years.103 Although the PTA between the United States and Peru entered
into force in 1980,104 the agreement failed to offer any help to the two
girls at that stage because they had not been sentenced and thus failed to
satisfy the condition of finality of judgment as provided for in the agree-
99. China’s low tolerance for political speech is clearly reflected in its persistent persecution of political dissidents. See, e.g., CONG.-EXEC. COMM’N ON CHINA, 109TH CONG.,
ANNUAL REPORT 2006, at 25–42, available at http://www.cecc.gov/pages/annualRpt/
annualRpt06/CECCannRpt2006.pdf [hereinafter CONG.-EXEC. COMM’N ON CHINA,
ANNUAL REPORT 2006]. Hong Kong’s law provides for broad freedoms of speech and
association. See XIANGGANG JI BEN FA [BASIC LAW OF THE HONG KONG SPECIAL
ADMINISTRATIVE REGION] art. 27, translated in http://www.info.gov.hk/basic_law/
fulltext/index.htm (last visited Apr. 21, 2008).
100. Because transfer of political offenders between Hong Kong and the Mainland is
anticipated to be a very complicated and controversial issue, the Author considers that it
should be discussed in detail in a separate paper.
101. For a detailed discussion of this case, see Ralph Ruebner & Lisa Carroll, The
Finality of Judgment and Sentence Prerequisite in the United States-Peru Bilateral Prisoner Transfer Treaty: Calling Congress and the President to Reform and Justifying Jurisdiction of the Inter-American Human Rights Commission and Court, 15 AM. U. INT’L
L. REV. 1071, 1072–78 (2000).
102. Id. at 1073.
103. Id. at 1074.
104. Treaty on the Execution of Penal Sentences, U.S.-Peru, July 6, 1979, 32 U.S.T.
1471, available at http://untreaty.un.org/unts/60001_120000/6/27/00011307.pdf.
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ment. 105 Consequently, no transfer could be arranged. Within a month
after the girls filed a complaint with the Inter-American Commission on
Human Rights (“IACHR”), a trial was finally held and the two girls were
convicted and sentenced. 106 The conviction and sentence rendered the
two girls eligible to apply for a transfer back to the United States to serve
the remainder of their sentences. Unfortunately, however, the relevant
judgment was subsequently overruled by the Peruvian Supreme Court
and the case was remanded for reinvestigation and retrial.107 This turnaround arose because some Peruvian co-defendants in the case appealed.108 Peruvian law required the two American girls to join the appeal,109 which caused the original judgment to lose its finality. Failing to
satisfy the condition of finality, the two girls were again ineligible for
transfer. They were forced to undergo a retrial, and both were sentenced
to six years’ imprisonment.110 After serving about two months of their
sentences in a Peruvian prison, the two girls were released on parole;
about four months later they finally secured a transfer back to the United
States to complete their parole.111 By the time they were transferred back
to the United States, they had been subject to the control of the Peruvian
criminal justice system for three years and two months.112
The repeated failure of the U.S.-Peru PTA to address the extended detention of the two American girls in Peru was due to the Peruvian authorities’ non-compliance with the universally recognized human rights
principle of due process—they failed to charge, try, and sentence the defendants promptly.113 Perversely, however, this deprivation of due process also resulted in a failure to satisfy the condition of finality of judg105. Ruebner & Carroll, supra note 101, at 1076–77.
106. Id. at 1074–75.
107. Id. at 1075.
108. Id.
109. Id.
110. Id.
111. Id.
112. See id. at 1073–75.
113. For example, paragraph 3 of article 9 of the International Covenant on Civil and
Political Rights (“ICCPR”) provides that:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and
shall be entitled to trial within a reasonable time or to release. It shall not be the
general rule that persons awaiting trial shall be detained in custody, but release
may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
International Covenant on Civil and Political Rights art. 9(3), Dec. 16, 1966, 999
U.N.T.S. 171.
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ment. If the finality of judgment condition is included in a future PTA
between Hong Kong and the Mainland, bearing in mind the deep-rooted
problem of extended and arbitrary detention in the Mainland, predicaments similar to that of the two American girls may arise for Hong Kong
residents charged with crimes in the Mainland.114
Although China claims to espouse the principle that the second trial is
final,115 China’s system of judicial supervision makes this principle illusory in practice. In China, judicial supervision is a procedure that aims to
uncover and rectify irregularities in the trial process.116 Under this system, a judgment that is final in effect may nonetheless be challenged as
defective.117 This procedure may be invoked by various parties. Parties to
the case, including the defendant, a near relative of the defendant, the
prosecution, and the victim (if there is one), may petition the People’s
Court or the People’s Procuratorate. 118 The president of the court in
which the judgment was made, higher level People’s Courts, and the Supreme People’s Court (“SPC”) may exercise their respective horizontal
and vertical supervisory functions to challenge a judgment.119 The Supreme People’s Procuratorate and higher level People’s Procuratorates
may also challenge a judgment in accordance with the judicial supervision system.120 The consequence of an exercise of judicial supervision is
a retrial of the case concerned.121
Given that so many parties have the power to request a retrial, judgments of the Chinese courts, even those pronounced by the second instance courts, are subject to challenge and thus not final. The case of Liu
Yong is one such example. This triad ringleader was sentenced to death
by an intermediate court, given a suspended death sentence by a higher
court on appeal, and finally given the death penalty by the SPC in a retrial.122
114. See CONG.-EXEC. COMM’N ON CHINA, ANNUAL REPORT 2006, supra note 99, at
49–51 (discussing the pattern of extended and arbitrary detention in China).
115. See Criminal Procedure Law art. 10, translated in LAWINFOCHINA (last visited
Apr. 16, 2008) (P.R.C.) (“In trying cases, the People’s Courts shall apply the system
whereby the second instance is final.”).
116. For details on judicial supervision, see, for example, CHENG RONGBIN, XING SHI
SU SONG FA [CRIMINAL PROCEDURE LAW] 361–76 (2000).
117. Id.
118. See Criminal Procedure Law arts. 203–204, translated in LAWINFOCHINA (last
visited Apr. 16, 2008) (P.R.C.).
119. Id. art. 205.
120. Id.
121. Id. arts. 204–205.
122. For the details of Liu Yong’s case, see Zhongguo Fayuan Wang [China Court
Net], Criminal Judgment of the Supreme People’s Court on the Retrial of Liu Yong’s
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The complexity of the finality of judgment requirement also hindered
the conclusion of an agreement on mutual recognition and enforcement
of civil and commercial judgments (“Reciprocal Recognition Agreement”) between Hong Kong and the Mainland. 123 Both jurisdictions’
experiences resolving the finality of judgment issue in concluding the
Reciprocal Recognition Agreement provide insight as to how the same
issue could be resolved for a Hong Kong-Mainland PTA. Under the Reciprocal Recognition Agreement, the uncertain finality of Mainland
judgments is controlled by two methods. First, recognizing that only certain courts can make an “enforceable final judgment,” the party who requests enforcement of a Mainland judgment in Hong Kong is required to
produce a certificate issued by the Mainland court that made the final
decision certifying that the decision was final.124 Second, if a case is to
be retried after an application for enforcement of judgment in the same
case is filed, the retrial should be conducted by the court at the next
highest level rather than the court that made the judgment in question.125
D. Minimum Remaining Sentence
The minimum remaining sentence requirement commonly appears in
PTAs in one of the following two ways. In the first method, the PTA
specifies the minimum duration of sentence that must be served in the
sentencing state before a prisoner is transferred back to the receiving
state (“the first method”).126 In the second method, the PTA specifies the
minimum duration of remaining sentence to be served by the prisoner
Case, http://www.chinacourt.org/public/detail.php?id=96393 (last visited Jan. 21, 2008);
Liu, Yong gai pan si huan neimu diaocha [Investigation into the Inside Story of Liu
Yong’s Commuted Death Sentence], BEIJING QINGNIAN BAO [BEIJING YOUTH POST], Aug.
28, 2003, available at http://news.xinhuanet.com/legal/2003-08/28/content_1049028.htm.
123. For details on the “finality of judgment” condition in the recently concluded
Agreement on Reciprocal Recognition and Enforcement of Judgments in Civil and
Commercial Matters between Hong Kong and the Mainland, see Twin Concessions
Clinch Judicial Deal, SOUTH CHINA MORNING POST, Apr. 15, 2006; Graeme Johnston,
China Cross-Border Litigation E-Bulletin, Cross-Border Enforcement of Judgments (July
17, 2006), http://www.herbertsmith.com/NR/rdonlyres/2D4DE729-E18F-4B48-9CC7E18D8A381F78/2316/Chinacrossborderlitigationebulletin170706.htm (last visited Feb.
20, 2008); Patrick Bourke & Jim James, Law in Business: China: New Deal,
LEGALWEEK.COM, June 29, 2006 (on file with author). The issue was finally solved and
an agreement was concluded in July 2006. Arrangement on Reciprocal Recognition and
Enforcement of Judgments in Civil and Commercial Matters, P.R.C.-H.K., July 14, 2006,
translated in http://www.legislation.gov.hk/intracountry/eng/pdf/mainlandrej2006071
9e.pdf [hereinafter Reciprocal Recognition Agreement].
124. Reciprocal Recognition Agreement, supra note 123, arts. 2, 6.
125. Id. art. 2.
126. PLACHTA, supra note 3, at 334.
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concerned at the time of application for transfer (“the second
method”).127
The first method has been used rarely, but has been adopted in PTAs to
which Thailand is a party.128 For example, in the bilateral PTAs Thailand
has signed with Australia, Canada, Hong Kong, and the United Kingdom, in addition to a one-year minimum remaining sentence requirement
in accordance with the second method noted above, there is a prohibitive
clause stating that “an offender may not be transferred unless he has
served in the transferring State any minimum period of imprisonment,
confinement or deprivation of liberty stipulated by the law of the transferring State.” 129 According to Michal Plachta, the Thai government’s
insistence on the inclusion of such a provision is due to “historic sensitivity regarding interference by foreign courts in Thai judicial decisions.”130
Similarly, Japan has mandated that a U.S. prisoner must serve at least
one-third of his sentence in Japan before applying to be transferred back
to the United States under the CTSP.131
The second method is the most commonly adopted method for implementing a minimum remaining sentence condition in international practice, and the minimum sentence duration required is normally six months
127. Id.
128. Id.
129. See Agreement on the Transfer of Offenders and on Cooperation in the Enforcement of Penal Sentences art. 3, U.K.-Thail., Jan. 22, 1990, 1656 U.N.T.S. 133; Agreement between the Government of Australia and the Government of the Kingdom of Thailand on the Transfer of Offenders and Cooperation in the Enforcement of Penal Sentences art. 3, Aust.-Thail., July 26, 2001, available at http://frli.law.gov.au/s97.vts?
action=View&VdkVgwKey=2002B00241&Collection=FRLI&ViewTemplate=frliview.h
ts. The exact wording of the limiting clause in the PTA with Canada differs slightly: “[I]n
the case of imprisonment, confinement or other form of deprivation of liberty, the offender shall, at the time of transfer, have served in the Transferring State any minimum
period of the sentence stipulated by the law of the Transferring State.” Treaty on Cooperation in the Execution of Penal Sentences art. 2, Can.-Thail., Jan. 5, 1983, 1851
U.N.T.S. 245, available at http://untreaty.un.org/unts/120001_144071/27/7/0002
2667.pdf. The language is also slightly different in the PTA with Hong
Kong. Agreement on the Transfer of Offenders and on Co-operation in the
Enforcement of Penal Sentences, H.K.-Thail., art. 3, Apr. 25, 2000, translated in
http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in “Thailand” row) (“an offender may not be transferred unless he has served in the jurisdiction of
the transferring Party any minimum period of imprisonment, confinement or any other
form of deprivation of liberty stipulated by the law of the transferring Party”).
130. PLACHTA, supra note 3, at 243.
131. Embassy of the United States in Japan, U.S. Citizen Services, Prisoner Transfer,
http://japan.usembassy.gov/e/acs/tacs-transfer.html (last visited Feb. 22, 2008). Japan,
which ratified the CTSP in February 2003, is one of the non-member states of the Council of Europe that has ratified the CTSP. CTSP Status, supra note 29.
486
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to one year. Both the CTSP and the Model Agreement set the minimum
duration of remaining sentence at six months.132 However, insofar as the
requirement is intended to ensure authorities have adequate time to process applications, a six-month minimum remaining sentence requirement
has already proved to be unrealistic in light of prisoners’ experiences
with the United Kingdom. As reported by Prisoners Abroad, an international prisoner transfer conducted by the United Kingdom normally takes
twelve to eighteen months to complete,133 but in certain circumstances, it
may take two years or longer. For example, two prisoners in Spain
waited for two years before being transferred back to the United Kingdom, and one prisoner from Portugal waited two and a half years for a
similar transfer.134 Delays in transfer are also common among other signatories of the CTSP,135 and as a survey by the Irish Commission for
Prisoners Overseas revealed, prisoner transfers in those countries surveyed generally take one year to two and a half years to complete.136 Factors leading to delays are numerous, including the huge amount of documentation required, the government bureaucracies involved, certain uncooperative interactions between the sentencing state and the receiving
state, and the inability of the sentencing state and the receiving state to
agree on how the remaining sentence should be enforced.137
Unlike the CTSP and the Model Agreement, eight out of nine PTAs
Hong Kong has signed with other jurisdictions (including the one with
Thailand) and all three PTAs China has signed stipulate that at the time
of application, a prisoner should have at least one year of his sentence
132. CTSP, supra note 25, art. 3(1)(c); Model Agreement, supra note 30, para. 11.
133. Prisoners Abroad, Factsheet: Prisoner Transfer to the U.K., http://www.
prisonersabroad.org.uk/Downloads/Factsheets/Prison_transfer.pdf (last visited Nov. 5,
2007).
134. GINNY GREENLAW & DIANA PARKINSON, BRINGING PRISONERS HOME:
INTERNATIONAL PRISONER TRANSFER IN THE 21ST CENTURY 45 (2002), available at
http://www.prisonersabroad.org.uk/Downloads/Research/Bringing_prisoners_home.pdf.
135. Eur. Parl. Ass., Operation of the Council of Europe Convention on the Transfer of
Sentenced Persons—Critical Analysis and Recommendations: Report of the Comm. on
Legal Affairs and Human Rights, Doc. 9117 (June 1, 2001), available at http://assembly.
coe.int/main.asp?Link=/documents/workingdocs/doc01/edoc9117.htm [hereinafter Council of Europe, Doc. 9117]. The average length of time needed to process a transfer application in some CTSP signatory countries are as follows: one year in both the United
Kingdom and the Netherlands, eighteen months in both Spain and Germany, and two
years in Ireland. Id. n.13.
136. Id. nn.11–13.
137. Id. The combined effect of these factors caused one Spanish national with serious
health problems to wait two years before being transferred from the United Kingdom
back to Spain. Id. app. I. Although humanitarian grounds (based on the prisoner’s illness)
could have provided a basis for expedited transfer, no such effort was made. Id.
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remaining.138 The only exception is the PTA between Hong Kong and
Macau. In that agreement, the minimum remaining sentence is set at six
months.139 The Hong Kong government explained that due to the geographical proximity between Hong Kong and Macau, the procedures for
handling an application for transfer could be completed within a shorter
period of time.140 The prisoner transfer arrangement between Hong Kong
and Macau went into effect on December 1, 2005.141 During the first six
days of its operation, the Macau prison authority received over fifty
transfer applications.142 As of June 2006, however, only one Hong Kong
resident had been successfully transferred from Macau back to Hong
Kong.143 This suggests that, notwithstanding the geographical proximity,
setting the remaining sentence at six months is inappropriate, even in the
context of prisoner transfers between Hong Kong and Macau. Similarly,
138. Hong Kong’s PTAs with Australia, Italy, the Philippines, Portugal, Sri Lanka,
Thailand, the United States, and the United Kingdom all include a one year requirement.
For the text of these treaties, see Department of Justice of the HKSAR, Treaties and International Agreements, supra note 65. The PTA with France is the exception; it includes
a six month remaining sentence requirement. Hong Kong-France PTA, supra note 75, art.
3(1)(c). The PTA between Hong Kong and the Philippines, in addition to the one-year
remaining sentence requirement, also limits eligibility to prisoners sentenced to a minimum of three years’ imprisonment. Hong Kong-Philippines PTA, supra note 78, art.
4(d). With respect to the China PTAs, see P.R.C.-Ukr. PTA, supra note 45, art. 4.1.3;
P.R.C.-Russ. PTA, supra note 46, art. 5.1.3; P.R.C.-Spain PTA, supra note 46, art. 2.1.1.
139. Hong Kong-Macau PTA, supra note 65, art. 4(4)(i).
140. LC PAPER NO. CB(2)2018/04-05, supra note 80, at 3.
141. 50 Aomen qiu qiu fan Gang fuxing [Fifty Prisoners in Macau Request to Return to
Hong Kong to Serve Their Sentences], SINGTAO RIBAO [SINGTAO DAILY], Dec. 6, 2005, at
A18.
142. Id. As of March 29, 2006, sixty-nine out of the 107 Hong Kong residents who
were serving sentences in Macau had applied for transfer. 69 Aomen zai qiu Gang ren
shenqing fan Gang fuxing [Sixty-nine Hong Kong Prisoners in Macau Have Applied to
Return to Hong Kong to Serve Their Sentences], DAGONG BAO [DA KUNG PAO NEWS],
Mar. 30, 2006.
143. Liangdi dacheng xieyi shuhuan Aomen jianyu jipo; Aomen shou ming Gang qiu
ziyuan hui Gang fuxing [Agreement Reached to Alleviate Overcrowding in Macau Prisons; First Hong Kong Prisoner in Macau Was Voluntarily Sent Back to Hong Kong to
Serve His Sentence], PINGGUO RIBAO [APPLE DAILY], June 8, 2006, at A24. The prisoner
was a twenty-three-year-old Hong Kong resident who was sentenced to eight and a half
years’ imprisonment by a Macau court in December 2004 for drug trafficking. Aomen
shou du yijiao qiufan hui Gang [Macau Transferred Prisoner Back to Hong Kong for the
First Time], MING BAO [MING PAO DAILY NEWS], June 8, 2006, at A24. The prisoner
consented to the transfer and the transfer application was approved by the Chief Executive of Macau on April 9, 2006. Agreement Reached to Alleviate Overcrowding in Macau
Prisons, supra. The prisoner had already served one and a half years of his sentence in
Macau when the transfer was completed. Id. He was still required to serve his remaining
seven years in Hong Kong. Id.
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geographical proximity failed to facilitate the process of prisoner transfer
between the United Kingdom and Ireland. In one case, a prisoner was
transferred back to Ireland from England after forty-two months had
passed since he had applied for transfer.144
As discussed above, performing the “close ties” analysis with respect
to the nationality/residency condition is a potentially complicated and
time consuming exercise in prisoner transfer between Hong Kong and
the Mainland. In addition, the different political and legal considerations
of Hong Kong and the Mainland (as revealed by the numerous political
and legal controversies between the two jurisdictions since the handover),145 the relative lack of mutual trust between Hong Kong and the
Mainland,146 and the significant lack of respect for law in the Mainland147
may further lengthen the transfer process. Therefore, setting the minimum remaining sentence at six months will be equally impracticable in
the context of prisoner transfers between Hong Kong and the Mainland.
The fact that the Security Bureau estimates that the procedure to handle a
prisoner transfer between Hong Kong and the Mainland would take
about ten months to one year to complete reinforces this argument.148
144. Council of Europe, Doc. 9117, supra note 135, app. I.
145. Two of the most controversial political/legal issues between Hong Kong and the
Mainland after the handover were the right of abode of children born to Hong Kong residents in the Mainland and the HKSAR government’s proposed enactment of national
security legislation to implement article 23 of the Basic Law of the HKSAR. For the details of these two issues, see, for example, JOHANNES M.M. CHAN, H.L. FU & YASH GHAI,
HONG KONG’S CONSTITUTIONAL DEBATE: CONFLICT OVER INTERPRETATION (2000); FU
HUALING, CAROLE J. PETERSEN & SIMON N.M. YOUNG, NATIONAL SECURITY AND
FUNDAMENTAL FREEDOMS: HONG KONG’S ARTICLE 23 UNDER SCRUTINY (2005).
146. The lack of mutual trust between Hong Kong and the Mainland was reflected in
the controversy over the national security legislation mentioned supra note 145. While
the HKSAR government emphasized the need to enact the relevant legislation, many
Hong Kong residents worried that the government would make use of the legislation to
undermine the rights and freedoms they had enjoyed. FU HUALING, PETERSEN & YOUNG,
supra note 145.
147. China has been severely criticized by the international community for its lack of
respect for law, and this situation is particularly apparent and acute with respect to human
rights. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], Comm. on Human Rights, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment: Mission to China, E/CN.4/2006/6/Add.6 (Mar. 10, 2006)
(prepared by Manfred Nowak) [hereinafter Mission to China].
148. See Zhong-Gang hu huan qiufan nan shuhuan jianyu ji po [China-Hong Kong
Prisoner Transfer Unlikely to Alleviate Prison Overcrowding], CHENG BAO [SING PAO
DAILY NEWS], Nov. 26, 2004, at A8; Yijiao neidi qiufan miandui san nanti [Three Difficulties in Transferring Mainland Prisoners], TAIYANG BAO [THE SUN], Nov. 26, 2004, at
A8.
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If a six month requirement is inappropriate, why not adopt the one year
minimum remaining sentence requirement reflected in the other Hong
Kong PTAs? Although such a proposal obviates the problem of administrative delay in application processing, it raises yet another issue: such a
requirement would substantially reduce the number of prisoners qualified
to apply for a transfer. According to the Security Bureau, as of November 2005, 48.9% of the Mainlanders serving sentences in Hong Kong had
a remaining sentence term of less than one year.149 These Mainland prisoners would automatically be excluded from a prisoner transfer arrangement if the minimum remaining sentence was set at one year. In fact,
even the Security Bureau has candidly noted that: “In overall terms, we
envisage that the long-term effect of the two-way transfer of sentenced
persons between Hong Kong and the Mainland on our total penal population would be insignificant.”150
While setting the minimum duration of remaining sentence at six
months or one year would have a substantial impact on the number of
eligible Mainland prisoners in Hong Kong prisons, the same issue would
not be as significant for Hong Kong residents serving sentences in
Mainland prisons. As of November 2005, there were about 600 Hong
Kong residents serving sentences in Guangdong Province in the
Mainland.151 Although individual prisoner sentencing data is not available, the Hong Kong and Mainland news media report that the crimes
committed by these Hong Kong residents are often serious and punishable by a relatively long period of imprisonment.152 This suggests that a
149. LC PAPER NO. CB(2)755/05-06, supra note 9, at 5. In January 2002, it was even
reported that ninety percent of the Mainlanders serving sentences in Hong Kong had a
remaining sentence term of less than one year. LC PAPER NO. CB(2)1023/01-02(03),
supra note 15, annex A.
150. LC PAPER NO. CB(2)1023/01-02(03), supra note 15, annex A.
151. LC PAPER NO. CB(2)755/05-06, supra note 9, at 5.
152. Between 1998 and 2006, 120 Hong Kong residents received a death sentence or a
suspended death sentence in the Mainland. Liu Yaoling, Gang ren zai dalu bei pan sixing
yinqi guanzhu [Hong Kong Residents Sentenced to Death in the Mainland Arouses Concerns], VOICE OF AMERICA NEWS, Mar. 3, 2006, available at http://www.voanews
.com/chinese/archive/2006-03/w2006-03-03-voa57.cfm. According to the Director of
Public Prosecutions of Hong Kong, the crimes most frequently committed by Hong Kong
residents in the Mainland are “financial crimes perpetrated in the guise of legitimate
businesses, and which often involve an element of corruption.” Press Release, Hong
Kong Government Information Centre, Speech by Director of Public Prosecutions (Apr.
30, 2002), available at http://www.info.gov.hk/gia/general/200204/30/0430103.htm.
Similarly, the Director of the Office of HKSAR Government in Beijing said that “fraud,
misappropriation of funds and falsely making out invoices for value-added tax” were the
crimes most frequently committed by Hong Kong people in the Mainland. Gang ren neidi
qiuzhu zeng yu san cheng [Requests from Hong Kong Residents in the Mainland for As-
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PTA between Hong Kong and the Mainland would likely be more beneficial to Hong Kong residents serving sentences in the Mainland than it
would be for Mainland residents serving sentences in Hong Kong.
It is clear that the relevant authorities would not have sufficient time to
process a transfer application if the minimum remaining sentence requirement is too short. However, the number of eligible prisoners would
be substantially reduced and the original intent of prisoner transfer would
be undermined if the minimum remaining sentence requirement is too
long. How should the authorities in Hong Kong and the Mainland solve
this problem?
To give both jurisdictions some flexibility in handling this minimum
remaining sentence requirement, a Hong Kong-Mainland PTA should
incorporate a clause that allows the remaining sentence requirement to be
waived upon mutual consent of both jurisdictions. If both jurisdictions
agree to a waiver, even if a prisoner’s remaining sentence is less than the
duration set in the agreement at the time when he applies for a transfer,
his application may still be processed. In fact, many agreements already
incorporate such a waiver clause, including the CTSP,153 four of Hong
Kong’s bilateral PTAs,154 and at least two of China’s PTAs.155
Undoubtedly, giving the relevant authorities of both jurisdictions the
discretion to invoke the waiver when in their judgment the special circumstances of an individual prisoner require it complies with the humanitarian principle behind prisoner transfer. However, given that prisoners who benefit from this clause may only need to serve a very short
sentence remainder in their home jurisdictions after transfer, the extent to
which the objective of rehabilitation can be achieved is in serious doubt.
This highlights the importance for the relevant authorities of Hong Kong
and the Mainland to use restraint in exercising any discretion to waive
the minimum remaining sentence requirement provided in a future Hong
sistance Increased by Thirty Percent], TAIYANG BAO [THE SUN], Apr. 13, 2005, at A11.
Moreover, drug offenses, such as drug trafficking and drug manufacturing, are another
category of offenses commonly committed by Hong Kong residents in the Mainland, and
these offenses often carry the death penalty. See id; Liu Yaoling, supra.
153. CTSP, supra note 25, art. 3(2).
154. Hong Kong incorporated waiver clauses in its PTAs with Australia, the United
Kingdom, the United States, and Macau. Hong Kong-Australia PTA, supra note 78, art.
4(d)(iii); Hong Kong-United Kingdom PTA, supra note 78, art. 4(d)(iii); Agreement on
the Transfer of Sentenced Persons, H.K.-U.S., art. 4(2), Apr. 15, 1997, translated in
http://www.legislation.gov.hk/table5ti.htm (follow “English(pdf)” hyperlink in “United
States” row); Hong Kong-Macau PTA, supra note 65, art. 4(4)(i).
155. P.R.C.-Ukr. PTA, supra note 45, art. 4.2; P.R.C.-Russ. PTA, supra note 46, art.
5.2.
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PRISONER TRANSFER
491
Kong-Mainland PTA, so as to ensure the proper balance between human
rights protection and rehabilitation.
E. Tripartite Consent
One practical issue concerning tripartite consent is the willingness of
Mainland prisoners to be transferred from Hong Kong back to the
Mainland. China’s prison conditions are notorious.156 Chinese prisons are
overcrowded,157 as are most prisons in other countries,158 and suffer from
low hygienic standards. 159 In addition, the abuse of power by prison
guards and the brutality of some inmates (who are often backed by the
prison guards) are well known.160 Cases of severe injury or death of prisoners are reported by the media from time to time.161 China has also been
denounced by human rights advocates for inhumane prison labor programs.162 Such poor conditions in Mainland prisons (when compared to
156. For a detailed description of the prison conditions in the Mainland, see generally
Mission to China, supra note 147.
157. The state of Guangdong’s prisons sheds light on the seriousness of overcrowding
in Chinese prisons. According to one report in 2003, almost thirty percent of the prisons
in Guangdong Province were overcrowded. Yue san cheng kanshou suo baoman; yi fan
zhan; shui sheshi buzu yi sheng oudou [Thirty Percent of the Detention Centers in
Guangdong Are Overcrowded; Suspects Keep Standing While Sleeping; Insufficient Facilities Easily Lead to Fighting], MING BAO [MING PAO DAILY NEWS], Nov. 5, 2003, at
A24. The prison population in the Baoan District Detention Center in Shenzhen was three
times greater than its available capacity. Id. As a result, seventy to eighty prisoners were
housed in one cell that was intended to house only twenty people. Id. Due to the lack of
space, every night prisoners were divided into three groups in order to take turns lying
down to sleep; while one-third slept, another one-third sat, and the remaining one-third
stood. Id.
158. See Penal Reform International, Prison Overcrowding, http://www.penalreform.
org/prison-overcrowding.html (last visited Feb. 21, 2008).
159. See Philip P. Pan, China’s Prison Laborers Pay Price for Market Reforms, WASH.
POST, June 14, 2001, at A1.
160. See id.; Mission to China, supra note 147, ¶¶ 44–45.
161. See, e.g., Sichuan jianyu ye nue qiu: yu jing yong jing gun dianxian huohuo dasi
qiufan [Sichuan Prison also Mistreats Prisoners: Prison Guard Beats a Prisoner to
Death with a Baton], SICHUAN XINWEN WANG [SICHUAN NEWS NET], Nov. 4, 2004, available at http://prison.com.cn/Press/2004-11-4/35F4E62D-2937-4925-A5F9-93AC2362
A5EF.html; Qin Zuoquan, Fuxing renyuan yu zhong bei da can; huo pei jin 6 wan yuan
[Inmate Who Becomes Disabled After Being Beaten Is Awarded Nearly 60,000 RMB
Compensation], FUZHOU RIBAO [FUZHOU DAILY], Aug. 24, 2007, available
at http://www.chinalawedu.com/news/1000/2/2007/8/li395026349428700220160-0.htm;
Ren Feilin, Jilin fuxing fan bei jingcha ouda zhi guzhe; jiancha jiguan jie ru diaocha
[Jilin Inmate Suffered from Bone Fracture After Being Beaten by the Police; Procurator
Intervenes in the Investigation], ZHONGGUO JILIN WANG [CHINA JILIN NET], Oct. 27,
2006, available at http://news.1488.com/news/legality/2006/10-27/9-47-42-1.shtml.
162. See Pan, supra note 159.
492
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those in Hong Kong prisons) are likely to be a major factor affecting
whether many Mainland prisoners in Hong Kong prisons even apply for
a transfer.
Moreover, many Mainland prisoners may not want their families,
friends, neighbors, and other fellow citizens to know that they engaged in
criminal activities in Hong Kong. This is particularly true for Mainland
women imprisoned for prostitution in Hong Kong. A transfer home under such circumstances not only brings shame on oneself, but also embarrasses one’s family. In consideration of both the conditions in
Mainland prisons and the shame that can accompany a prisoner’s transfer
back home, a PTA between Hong Kong and the Mainland is unlikely to
be an attractive mechanism for most, if not all, Mainland prisoners in
Hong Kong.
IV. ALTERNATIVES TO TRANSFER ON THE BASIS OF A STANDING PTA
A. The Need for Alternatives to a Hong Kong-Mainland PTA
Notwithstanding that the purpose of a PTA is to facilitate prisoner
transfer, the above discussions reveal that instead of safeguarding the
interests of foreign prisoners, many conditions in PTAs often present
obstacles for prisoner transfer. In practice, many prisoner transfer applications are rejected because of failure to fulfill those conditions, and
even more are delayed because of the lengthy verification process that
ensures the conditions are fulfilled.163
For example, between 1986 and 1990, among the 270 requests for
transfer to which the United Kingdom was a party (either as a sentencing
state or a receiving state), only sixty-three (23.3%) were successful.164
For the other 207 requests, fifty-one (18.9%) were rejected while 156
were either withdrawn or the prisoners were released before the transfers
were carried out.165 Similarly, between 1988 and 1990, only 101 (37.5%)
of the 269 requests for transfer to which the Netherlands was a party
were successful. 166 Sixty-six (24.5%) were rejected and 102 (37.9%)
were either withdrawn or the prisoners were released before the transfers
were carried out.167
163. See Council of Europe, Doc. 9117, supra note 135.
164. See Désirée Paridaens & Christopher Harding, The Transfer of Prisoners with
Special Reference to the Netherlands and the UK, in CRIMINAL JUSTICE IN EUROPE: A
COMPARATIVE STUDY 375 (Phil Fennell, Christopher Harding, Nico Jörg & Bert Swart
eds., 1995).
165. See id.
166. See id. at 376.
167. See id.
2008]
PRISONER TRANSFER
493
Hong Kong’s record on prisoner transfer is even bleaker. Between June
1997 and March 2002, among the eighty-eight prisoner transfer applications in which Hong Kong was the sentencing state, seventeen (19.3%)
were rejected because the Hong Kong government was “[u]nable to conclude satisfactory ad hoc arrangements or reach consensus on transfer”
with the receiving state and thirty-three (37.5%) were unsuccessful because the applications were not processed before the prisoners were discharged.168 Only five (5.7%) applications were successful.169
The low success rate of international prisoner transfer raises questions
about the operational effectiveness of a prospective PTA between Hong
Kong and the Mainland. It is also worth noting that China has included a
clause in its PTAs with Ukraine and Russia that empowers the signatories to refuse a prisoner transfer even if all other requirements are satisfied. The clause states: “Except in the situations stated in the preceding
paragraph [which includes cases implicating national security, life imprisonment, and the death penalty], any party has the autonomy to decide
on its own whether to consent to a transfer requested by the other
party.”170 Whether China will insist on adding the same clause to a future
PTA with Hong Kong is uncertain. The inclusion of such a discretionary
clause would effectively render all other conditions for transfer meaningless, as the ultimate decision will depend on the subjective views of the
signatories.
In light of the foregoing, even if Hong Kong and the Mainland successfully conclude a PTA according to international practice, it does not necessarily mean that non-resident prisoners serving sentences in either jurisdiction will actually benefit from, or voluntarily make use of, such an
agreement. This calls into question the necessity of a Hong KongMainland PTA. While negotiations for such an agreement are still underway, and in light of reservations as to the practicability of a Hong
Kong-Mainland PTA drafted according to international practice, it is
prudent to consider other methods to facilitate prisoner transfer between
the two jurisdictions.
B. Ad Hoc Transfer: Another Form of Prisoner Transfer
The Hong Kong government has claimed that, at present, prisoner
transfer between Hong Kong and the Mainland is impossible because of
168. See LCQ8: Transfer of Sentenced Persons, supra note 64, annex.
169. See id. The remaining thirty-three applications received between June 1997 and
March 2002 were still being processed as of March 2002. See id.
170. P.R.C.-Ukr. PTA, supra note 45, art. 5.2; P.R.C.-Russ. PTA, supra note 46, art.
6.2.
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the lack of a PTA between the two jurisdictions. 171 However, the absence of a PTA does not in fact preclude prisoner transfers.
Ad hoc prisoner transfer is commonly used in circumstances in which
there is no standing PTA between the sentencing state and the receiving
state.172 Due to the lack of an established mechanism in such cases, the
parties involved must determine eligibility for transfer, the procedure for
transfer, and the execution of the remaining sentence on a case-by-case
basis. This ad hoc method of prisoner transfer has already been used by
both the Hong Kong government and the Chinese government.
According to information provided by the Security Bureau in March
2002, Hong Kong had received eighty-eight prisoner transfer applications since the handover.173 Among these eighty-eight applications, only
thirty-two involved prisoners from countries that had a PTA with Hong
Kong at that time.174 Only five out of the eighty-eight applications were
successful, and of these five prisoner transfers, while four were transfers
under standing agreement with the United Kingdom, one was an ad hoc
transfer to Nigeria.175
The ad hoc transfer to Nigeria aroused some controversy.176 This is because the prisoner involved in that case was the son of the Consul General of Nigeria in Hong Kong. The twenty-two-year-old man was convicted of assaulting police in September 2001 and was sentenced to two
years’ imprisonment.177 After serving two and a half months of his prison
term in Hong Kong, he was transferred back to Nigeria to serve his remaining sentence.178 The quick transfer aroused suspicions that his father
had exercised his consular privileges to pressure the Hong Kong government to release him.179 There was also speculation that the so-called
171. See LCQ6: Transfer of Sentenced Persons, supra note 73.
172. See LCQ8: Transfer of Sentenced Persons, supra note 64.
173. See id.
174. See id.
175. Id.
176. For the details of this ad hoc prisoner transfer, see Ni lingshi zi bei pan liangnian;
fuxing liangyue hou li Gang [Son of Nigerian Consul General Sentenced to Two Years’
Imprisonment Left Hong Kong After Having Served Two Months of Sentence], TAIYANG
BAO [THE SUN], Feb. 11, 2002, at A2 [hereinafter Son of Nigerian Consul General, THE
SUN]; Ni Guo lingshi zi huo tizao chuyu [Son of Nigerian Consul General Being Granted
Early Release], CHENG BAO [SING PAO DAILY NEWS], Feb. 11, 2002, at A11 [hereinafter
Early Release, CHENG BAO].
177. Son of Nigerian Consul General, THE SUN, supra note 176; Early Release, CHENG
BAO, supra note 176.
178. Son of Nigerian Consul General, THE SUN, supra note 176; Early Release, CHENG
BAO, supra note 176.
179. According to the Prisoners’ Friends’ Association, a prisoner transfer application
normally takes at least a few months to process. See Early Release, CHENG BAO, supra
2008]
PRISONER TRANSFER
495
“transfer” was actually an early release, because whether he would be
required to serve his remaining sentence after being transferred back to
Nigeria was unknown.180
China signed its first PTA in July 2001, but it had in fact conducted ad
hoc prisoner transfers with other countries some years before. The first
prisoner transfer with China was conducted with Ukraine in 1997. 181
Bearing in mind both the humanitarian interests (in allowing foreign
prisoners to serve their sentences in their home jurisdictions) and in consideration of the administrative inconvenience of incarcerating foreign
prisoners,182 China transferred, at the request of the Ukraine government
and with the consent of the prisoners, two Ukrainians sentenced to ten
years’ imprisonment for theft by a Mainland court in 1994.183 The transfer was initiated by the Embassy of Ukraine, which issued an express
request to the Chinese government.184 The two prisoners were transferred
to the custody of the relevant Ukraine officials at Beijing Capital Airport
and sent home by plane.185 The transfer process took about six months to
complete.186
China’s most recent prisoner transfer took place on February 22, 2004
when the Ministry of Justice in China transferred a Cameroonian pris-
note 176. The lengthy processing time is in fact one of the factors that may cause a transfer application to be unsuccessful. For example, between June 1997 and March 2002,
thirty-three out of eighty-eight prisoner transfer applications were unsuccessful because
of “insufficient time to complete the processing of the applications or the negotiation of
ad hoc arrangements before discharge . . . of the prisoners concerned.” See LCQ8: Transfer of Sentenced Persons, supra note 64. The transfer of this Nigerian prisoner, which
only took two and a half months to process, was conducted much faster than other applications. See Early Release, CHENG BAO, supra note 176.
180. Ni Lingshi zi mimi huoshi re zhengyi [The Secret Release of the Son of Nigerian
Consul General Arouses Controversy], DONGFANG RIBAO [ORIENTAL DAILY], Feb. 11,
2002, at A22.
181. For the details of this transfer, see BEIPANXINGREN YIGUAN GUOJI JI OUYU HEZUO
[INTERNATIONAL AND INTER-TERRITORIAL COOPERATION ON THE TRANSFER OF SENTENCED
PERSONS] 567 (Zhao Bingzhi & Huang Feng eds., 2004) [hereinafter Zhao Bingzhi &
Huang Feng].
182. See id. at 568. The Harbin Prison Administration (where the Ukrainians were
imprisoned) specifically designed prison cells with advanced administrative and living
facilities for the foreign prisoners. Id. Special arrangements were also made to accommodate the foreign prisoners’ habits and dietary requirements. Id. However, problems such
as the language barrier remained unsolved. The language difference made it difficult for
the foreign prisoners to participate in group activities with local inmates. Id.
183. Id. at 568–69.
184. Id. at 570–71.
185. Id. at 570, 576–77.
186. Id. at 569–70.
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oner to the Cameroonian government at Beijing Capital Airport.187 The
prisoner had been sentenced to twelve years’ imprisonment for theft in
1999 and was serving his sentence in the Qingdao Prison in Shandong
Province. 188 This transfer, which took about eight months to complete
starting in June 2003, was made at the request of the Cameroonian government because of the health problems of the prisoner concerned.189
While ad hoc transfer may be an alternative to transfers under a standing agreement, based on the outcomes of the eighty-eight applications
handled by Hong Kong between the handover and March 2002, it is clear
that the likelihood of success is even less than transfer based on a standing agreement. This is a natural consequence because ad hoc transfers
require the negotiation of a new arrangement for every application.
Given the different political, legal, and other considerations in each case,
negotiating the conditions for transfer, the procedure for transfer, and the
method of enforcement for the remaining sentence between the two jurisdictions is certain to be tedious. The lengthy negotiations may render
an application unsuccessful, as the parties may not be able to reach an
agreement before the prisoner concerned is discharged, or they may be
unable to reach an agreement at all.
Although there are many uncertainties when a transfer is conducted on
the basis of a standing agreement, a PTA at least ensures both parties
have negotiated the principal issues, have some understanding of each
other’s concerns, and have reached agreement on certain issues. From
this point of view, prisoners’ rights are likely to be better protected if
there is a PTA. As Michal Plachta remarks:
While it would seem a sensible precaution to make provisions in the
domestic legislation for ad hoc agreements, they should be regarded as
a second-best when compared with regular treaties. Provided that there
is some expectation that regular use will be made of it, a treaty is much
187. For the details of this transfer, see id. at 580. In addition to this transfer and the
transfer of Ukrainian prisoners mentioned above, the Department of Judicial Assistance
and Foreign Affairs of the Ministry of Justice disclosed that the PRC has conducted prisoner transfers with Russia and the Republic of Mali. Zhonghua Renmin Gongheguo Sifa
Bu [Department of Judicial Assistance and Foreign Affairs, Ministry of Justice of the
PRC], Renzhen guanche dang de 16 jie 4 zhong quanhui jingshen, jinyibu tigao sifa
xiezhu wai shi gongzuo shuiping [Seriously Implementing the Spirit of the Fourth Plenum of the Sixteenth Party Congress of the Chinese Communist Party, Further Raising
the Standard of the Work of Judicial Assistance and Foreign Affairs],
http://www.legalinfo.gov.cn/moj/moj/2004-12/13/content_167329.htm (last visited Jan.
21, 2008). However, details of these two transfers are not available.
188. Zhao Bingzhi & Huang Feng, supra note 181, at 580.
189. Id.
2008]
PRISONER TRANSFER
497
the more economical approach; it gives certainty and stability to both
(or all) parties; and it settles the question of reciprocity.190
However, because both Hong Kong and the Mainland have experience
with ad hoc prisoner transfers and the two parties have not yet concluded
a PTA (and in fact, it is uncertain when or if an agreement could be concluded), Hong Kong and the Mainland should accommodate the needs of
prisoners requesting transfers home to serve their sentences by using an
ad hoc transfer system. Nevertheless, given the relatively large number
of potential applications (when compared to the applications from prisoners who are residents of jurisdictions other than the Mainland), ad hoc
transfer from Hong Kong prisons may only be a short term solution. In
the long term, a PTA between Hong Kong and the Mainland may well be
indispensable because it will save time and resources and provide predictability.
C. Immediate Repatriation/Deportation After Sentencing: Another Option for the Sentencing State?
Given that the proportion of Mainland prisoners in Hong Kong who
have a remaining sentence term of less than one year has been close to
fifty percent,191 a PTA, regardless of whether the minimum remaining
sentence requirement is set at six months or one year, is unlikely to benefit this group of prisoners (especially from the rehabilitative perspective).
Because a majority of these Mainland prisoners were imprisoned for
immigration offenses (mainly illegal entry, breach of conditions of stay,
and entering Hong Kong with forged travel documents),192 repatriation,
which does not require the consent of the prisoner, is likely to be a more
effective method to transfer them back to the Mainland.
Under the current immigration policy of Hong Kong, once a Mainland
illegal immigrant is arrested by the police, depending on the duration of
his illegal stay in Hong Kong, the Immigration Department may employ
one of two possible procedures. Under the first option, an illegal immigrant who has been in Hong Kong for less than two months will be interrogated shortly after his arrest to determine whether his entry into Hong
Kong was illegal and, if so, whether he should be allowed to remain in
190. PLACHTA, supra note 3, at 258.
191. See supra note 149 and accompanying text.
192. As of September 19, 2003, 1812 out of 3473 Mainlanders serving sentences in
Hong Kong were imprisoned for immigration offenses. Out of these 1812 persons, almost
eighty percent (1433) had a sentence term of less than one year. Press Release, Hong
Kong Government Information Centre, LCQ18: Mainlanders Serving Sentences in Hong
Kong (Oct. 8, 2003), available at http://www.info.gov.hk/gia/general/200310/08/
1008173.htm.
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Hong Kong on humanitarian grounds.193 After making these determinations, if the Immigration Department decides to remove him, a “Refusal
Notice” will be issued against him, and he will be detained until repatriation.194 The repatriation is normally carried out within one week.195 Under the second option, an illegal immigrant who, at the time he is arrested, has been in Hong Kong for more than two months will be placed
in detention shortly after his arrest.196 A “Notice of Removal Order” will
be issued against him either before or after his detention.197 If the detained immigrant intends to challenge the removal order, he has to give
written notice to the Immigration Department within twenty-four hours
of his receipt of the Notice of Removal Order; if he accepts the removal
order, he will be repatriated.198
The two aforementioned repatriation methods only apply to Mainlanders who have illegally entered (or stayed in) Hong Kong and have committed no other offense.199 Mainlanders who have committed any other
offense (other than illegal entry or stay), regardless of whether they also
entered or stayed in Hong Kong illegally, must go through the formal
judicial process in Hong Kong courts. Given the lack of any prisoner
transfer arrangement between Hong Kong and the Mainland, normally
these Mainland offenders would have to complete their sentences before
being sent home. However, in certain circumstances the Chief Executive
of the HKSAR does have the power to deport a non-Hong Kong prisoner
after sentencing.200
193. SECURITY BUREAU OF THE HKSAR, POLICY AND PRACTICE ON REMOVAL AND
DEPORTATION, LC PAPER NO. CB(2)848/99-00(03), at 2 (2000), available at http://www.
legco.gov.hk/yr99-00/english/panels/ajls/papers/b848e03.pdf [hereinafter LC PAPER NO.
CB(2)848/99-00(03)].
194. Id. at 3, annex D.
195. Xinwen gongbao [Press Release], Xianggang Tequ Zhengfu [Hong Kong Government Information Centre], Lifahui san ti: denghou dijie huo qiansong li jing ren shi de
liu shiyi [LCQ3: Matters Regarding the Detention of People Subject to Repatriation and
Deportation] (Mar. 29, 2000), available at http://www.info.gov.hk/gia/general/200003/
29/0329153.htm.
196. LC PAPER NO. CB(2)848/99-00(03), supra note 193, at 3–4.
197. Id. at 3–4, annex F.
198. Id. at 5.
199. See id.
200. Immigration Ordinance, (1997) Cap. 115, § 20, translated in http://www.
legislation.gov.hk/eng/home.htm (last visited Apr. 21, 2008) (H.K.) (“The Governor may
make a deportation order against an immigrant if . . . (a) the immigrant has been found
guilty in Hong Kong of an offence punishable with imprisonment for not less than 2
years; or (b) the Governor deems it to be conducive to the public good.”); see also LC
PAPER NO. CB(2)848/99-00(03), supra note 193, at 5.
2008]
PRISONER TRANSFER
499
While deportation of foreign criminals is an administrative measure in
Hong Kong, it may constitute criminal punishment in the Mainland. Article 35 of the Criminal Law provides that “Deportation may be applied
in an independent or supplementary manner to a foreigner who commits
a crime.”201 The Chinese government commonly subjects foreigners who
committed crimes in the Mainland to deportation.202
The term “deportation” (quzhu chujing) in Chinese refers to expelling
someone from the territory of a country.203 The term “territory” under the
Criminal Law should be read as jurisdictional territory, not the sovereign
territory of the PRC, because the Criminal Law is not applicable to the
HKSAR204 by virtue of the principle of One Country, Two Systems.205
Also, because Hong Kong residents are “foreigners” with regard to the
jurisdictional territory of the Mainland, the term “foreigner” under article
35 of the Criminal Law should include Hong Kong residents.206 Thus, it
naturally follows that a Hong Kong resident may be expelled by the
Mainland authorities from the jurisdictional territory of the Mainland to
the jurisdictional territory of Hong Kong. In other words, the criminal
punishment of deportation under article 35 of the Criminal Law may be
applied to Hong Kong residents.207
Thus, repatriation/deportation of prisoners in Hong Kong and the
Mainland is possible under the laws of both jurisdictions and it is likely
to be a more effective and expedient method for Hong Kong to transfer
many Mainland prisoners back to the Mainland. The only problem with
this method is that it fails to serve the deterrent purpose of punishment
201. Criminal Law art. 35, translated in LAWINFOCHINA (last visited Apr. 16, 2008)
(P.R.C.).
202. See, e.g., Foreign Swindlers Convicted in Beijing, PEOPLE’S DAILY, Feb. 1, 2002,
available at http://english.peopledaily.com.cn/200202/01/print20020201_89748.html;
Jiang Zhuqing, Japanese Snakehead Deported from China, CHINA DAILY, Aug. 18, 2004,
available at http://www.chinadaily.com.cn/english/doc/2004-08/18/content_366424.htm;
Wang Zhuoqiong, American DVD Piracy Convict Deported Home, CHINA DAILY, Sept.
30, 2005, available at http://www.chinadaily.com.cn/english/doc/2005-09/30/content_
482005.htm.
203. The term “quzhu” is defined as “expelling” and the term “chujing” is defined as
“leaving the territory of a country.” See ZHONGGUO SHE HUI KE XUE YUAN YU YAN YAN JIU
SUO CI DIAN, XIAN DAI HAN YU CI DIAN [MODERN CHINESE DICTIONARY: CHINA SOCIAL
SCIENCE INSTITUTE LINGUISTIC DEPARTMENT EDITION] 197, 1125 (2005).
204. See supra note 4 and authorities cited therein.
205. For a discussion of the definition of the word “territory” under the Criminal Procedure Law, see, for example, H.L. Fu, Comment, The Battle of Criminal Jurisdictions,
supra note 92.
206. See Criminal Law art. 35, translated in LAWINFOCHINA (last visited Apr. 16,
2008) (P.R.C.).
207. Id.
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because the repatriated/deported criminal would be sent back to his home
country soon after sentencing, and there is no guarantee that any (administrative or criminal) punishment would be imposed by his home jurisdiction after his return.
Because the rehabilitation and deterrent purposes are unlikely to be
achieved (especially without the cooperation of the receiving state) when
a prisoner is repatriated or deported immediately after sentencing, this
transfer method is unsuitable for most prisoners. However, from the perspective of criminal justice policy, such measures may be justified in
cases in which Mainlanders have been convicted for the crimes of prostitution or working without permission in Hong Kong. Both of these offenses are really victimless crimes; however, they may result in a
maximum punishment of three years’ imprisonment. 208 Mere repatriation/deportation may be sufficient punishment. Moreover, imprisonment
has already proved to be an ineffective deterrent (especially for those
who come to Hong Kong for prostitution)—many come back to Hong
Kong and commit the same crime again. The Hong Kong Police have
acknowledged that some Mainland prostitutes they arrest have been arrested in and repatriated from Hong Kong many times.209
CONCLUSION
This Article has demonstrated that concluding a PTA between Hong
Kong and the Mainland that is practical in the context of prisoner transfer
208. For Mainland women who travel to Hong Kong with valid travel documents but
are arrested for engaging in prostitution in Hong Kong, the most common charge is “soliciting for an immoral purpose,” an offense under the Crimes Ordinance with a maximum punishment of a fine of HK$10,000 and six months’ imprisonment. Press Release,
Hong Kong Government Information Centre, LCQ1: Women from Mainland Engage in
Prostitution (Dec. 20, 2000), available at http://www.info.gov.hk/gia/general/200012/
20/1220187.htm. An alternative charge against Mainlanders who come on valid travel
documents but are arrested for prostitution is “breach of conditions of stay,” an offense
under the Immigration Ordinance with a maximum punishment of a fine of HK$50,000
and two years’ imprisonment. Id. On the other hand, if the Mainland prostitutes are found
to be illegal immigrants, they may be charged with “illegal remaining,” an offense under
the Immigration Ordinance with a maximum punishment of a fine of HK$25,000 and
three years’ imprisonment. Id. The charges of “breach of conditions of stay” and “illegal
remaining” are also applicable to Mainlanders arrested for working illegally in Hong
Kong. See Press Release, Hong Kong Government Information Centre, LCQ4: Guangdong Province Residents to Visit Hong Kong in Personal Capacity (Apr. 30, 2003),
available at http://www.info.gov.hk/gia/general/200304/30/0430292.htm.
209. Dalu lan fa shuang cheng zheng, Xianggang ji nü sao bu wan [Mainland
Arbitrarily Issues “Two-way Permits,” Prostitutes in Hong Kong Can Never Be
Cleared], LIANHE ZAOBAO WANG [ZAOBAO.COM], Aug. 1, 2006, available at
http://www.zaobao.com.sg/special/newspapers/2006/08/others060801c.html.
2008]
PRISONER TRANSFER
501
between the two jurisdictions is not an easy task. It is anticipated that the
relevant authorities of the two jurisdictions will encounter many problems in concluding a Hong Kong-Mainland PTA and implementing such
an agreement in the future, even if the internationally recognized prisoner transfer conditions are adopted. The negotiation process is therefore
bound to be tedious.
Prisoners serving sentences in foreign jurisdictions should not be deprived of the right to transfer to their home jurisdictions simply because
of the lack of a standing PTA. While negotiations are still underway between Hong Kong and the Mainland, alternative methods of prisoner
transfer should be employed. Ad hoc transfer, a method that has been
utilized by Hong Kong and the Mainland in facilitating prisoner transfers
with other countries, is a viable solution for the short term. Even if a
Hong Kong-Mainland PTA is concluded, ad hoc transfer should be a
fallback method to conduct prisoner transfer on humanitarian grounds in
cases where the normal conditions of prisoner transfer are not satisfied.
Repatriation and deportation should also be considered as more practical methods for Hong Kong to transfer the large number of Mainland
prisoners with short sentence terms (particularly those imprisoned for
immigration offenses and engaging in prostitution) back to the Mainland.
This does not mean a PTA between Hong Kong and the Mainland is unnecessary. Rather, a Hong Kong-Mainland PTA remains important for
Mainland prisoners in Hong Kong who have longer sentence terms and
for Hong Kong residents who are serving sentences in Mainland prisons.
TERRITORIAL INTEGRITY AND THE
“RIGHT” TO SELF-DETERMINATION: AN
EXAMINATION OF THE CONCEPTUAL
TOOLS
Joshua Castellino*
INTRODUCTION
T
he determination and demarcation of fixed territories and the subsequent allegiance between those territories and the individuals or
groups of individuals that inhabit them is arguably the prime factor that
creates room for individuals and groups within international and human
rights law.1 In this sense, “international society”2 consists of individuals
and groups that ostensibly gain legitimacy and locus standi in international law by virtue of being part of a sovereign state.3 For example, although it has been argued that notions of democratic governance have
become widespread (or even a norm of customary international law),4
this democracy—in order to gain international legitimacy—is assumed to
be expressed within the narrow confines of an identifiable territorial
unit.5 While this state-centered model has been eroded by international
* Professor of Law and Head of Law Department, Middlesex University, London,
England. Ph.D., International Law, University of Hull, England (1999); M.A., International Law and Politics, University of Hull, England (1996); B. Comm., Bombay University, India (1995).
1. See BRAD R. ROTH, GOVERNMENTAL ILLEGITIMACY IN INTERNATIONAL LAW 2
(2001) (examining the process through which this “legitimacy” is validated in international law). See also JAMES L. BRIERLY, THE BASIS OF OBLIGATION IN INTERNATIONAL
LAW AND OTHER PAPERS 47 (Hersch Lauterpacht & C.H.M. Waldock eds., 1958) (explaining the nexus between the individual and the state, defined on the basis of a fixed
“territorial compartment”).
2. See HEDLEY BULL, THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD
POLITICS 74–94 (2d ed. 1995).
3. See Vernon Van Dyke, The Individual, the State and Ethnic Communities in Political Theory, in WILL KYMLICKA, THE RIGHTS OF MINORITY CULTURES 31 (1st ed.
1995); Vernon Van Dyke, Human Rights and the Rights of Groups, 18 AM. J. POL. SCI.
725 (1974). See, e.g., Cindy L. Holder & Jeff J. Corntassel, Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights, 24 HUM. RTS. Q. 126
(2002).
4. Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J.
INT’L L. 46 (1992).
5. See generally Lea Brilmayer, Secession and Self-Determination: A Territorial
Interpretation, 16 YALE J. INT’L L. 177 (1991) (explaining the importance of the territorial state, especially the clash between self-determination and territorial integrity).
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criminal law developments that eliminate the state action requirement,6
nationality remains central to personal identity within the international
system.7
The acquisition of defined and fixed territoriality is prerequisite to the
recognition of statehood.8 The quest for recognition has widespread
manifestations in contemporary society, from indigenous peoples who
seek control over the destiny of their ancestral lands to struggles for selfdetermination in places such as Kosovo, Iraq, the Basque Country, and
many others.9 Since states are primarily entrusted with the privilege of
norm creation in international law, the emphasis on territoriality affects
many who would lay claim to such recognition.10 However, the notion of
territoriality itself remains contested in international law. The implication
6. The rapid growth of international criminal law since the signature of the Rome
Statute of the International Criminal Court has established that an individual can be held
accountable for his or her actions beyond the veil of the state. See FROM NUREMBERG TO
THE HAGUE: THE FUTURE OF INTERNATIONAL CRIMINAL JUSTICE (Philippe Sands ed.,
2003). See generally LEILA NADYA SADAT, THE INTERNATIONAL CRIMINAL COURT AND
THE TRANSFORMATION OF INTERNATIONAL LAW: JUSTICE FOR THE NEW MILLENNIUM
(2002); WILLIAM A. SCHABAS, INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT
(2d ed. 2001) (elaborating on the court and its activities); THE INTERNATIONAL CRIMINAL
COURT: THE MAKING OF THE ROME STATUTE (Roy S. Lee ed., 1999); THE ROME STATUTE
OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY (Antonio Cassese, Paola
Gaeta & John R.W.D. Jones eds., 2002); M. Cherif Bassiouni, Historical Survey: 1919–
1998, in THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1 (1998).
7. See generally Simon Caney, Individuals, Nations and Obligations, in NATIONAL
RIGHTS, INTERNATIONAL OBLIGATIONS 119–38 (Simon Caney, David George & Peter
Jones eds., 1996). Cf. WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL
THEORY OF MINORITY RIGHTS (1995) (arguing against a strict linkage between territory
and identity).
8. See Montevideo Convention on the Rights and Duties of States art. 1, Dec. 26,
1933, 49 Stat. 3097, T.S. 881 [hereinafter Montevideo Convention].
9. See MORTON H. HALPERIN & DAVID J. SCHEFFER WITH PATRICIA L. SMALL, SELFDETERMINATION IN THE NEW WORLD ORDER (1992); ALEXIS HERACLIDES, THE SELFDETERMINATION OF MINORITIES IN INTERNATIONAL POLITICS (1991). See also LUIS NÚÑEZ
ASTRAIN, THE BASQUES: THEIR STRUGGLE FOR INDEPENDENCE (Meic Stephens trans.,
1997) (discussing the Basque claim to self-determination); DENISA KOSTOVICOVA,
KOSOVO: THE POLITICS OF IDENTITY AND SPACE (2005) (discussing the claim to statehood
in Kosovo); KERIM YILDIZ, THE KURDS IN IRAQ: THE PAST, PRESENT AND FUTURE (2004)
(discussing the claim of the Kurds in the context of Iraq).
10. See generally JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL
LAW (2d ed. 2006) (1979); R.Y. JENNINGS, THE ACQUISITION OF TERRITORY IN
INTERNATIONAL LAW (1963); OBIORA CHINEDU OKAFOR, RE-DEFINING LEGITIMATE
STATEHOOD: INTERNATIONAL LAW AND STATE FRAGMENTATION IN AFRICA (2000); NII
LANTE WALLACE-BRUCE, CLAIMS TO STATEHOOD IN INTERNATIONAL LAW (1994); Ruth
Lapidoth, Sovereignty in Transition, 45 J. INT’L AFF. 325 (1992).
2008]
TERRITORIAL INTEGRITY
505
of this contest is most visible in the treatment of the right to selfdetermination.11
To ascertain the manner in which the legal treatment of territory affects
groups seeking self-determination, this Article seeks to identify the international legal regime that governs the treatment of territory, trace its evolution and purpose, and unpack the doctrinal tools that lie at the foundation of territoriality in international law. By analyzing the interpretation
of these norms by international judicial bodies, this Article will question
the validity and measure the effectiveness of their application.
This analysis will illustrate the dichotomy between the right to selfdetermination and the issue of land rights. In order to retain its legitimacy, international law must reconceptualize the doctrines of territoriality and self-determination. This Article posits that this can be achieved
by reconciling the traditional state-centered approach, which views selfdetermination as an issue about the legitimacy of the state,12 with the
human rights approach, which views self-determination13 as a foundational right on which the edifice of human rights can be built.14
11. See generally ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL
REAPPRAISAL (1995); HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELFDETERMINATION (1990); Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43 INT’L & COMP. L.Q. 857 (1994).
12. See, e.g., supra note 11 (illustrating that Antonio Cassese, Hurst Hannum, and
Martti Koskenniemi are overtly concerned with the international process-oriented issues
of state formation).
13. See generally PATRICK THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS
58–59 (“In any assessment of who or what is indigenous, the nature of self-organisation
should be borne in mind, and group aspirations to a certain set of rights.”); S. James
Anaya, Self-Determination as a Collective Human Right Under Contemporary International Law, in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELFDETERMINATION 3 (Pekka Aikio & Martin Scheinin eds., 2000); Benedict Kingsbury,
Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in
International & Comparative Law, 34 N.Y.U. J. INT’L L. & POL. 189, 190 n.4 (2001);
Martin Scheinin, The Right to Self-Determination Under the Covenant on Civil and Political Rights, in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELFDETERMINATION 179 (Pekka Aikio & Martin Scheinin eds., 2000). The more contemporary works of S. James Anaya, Martin Scheinin, Benedict Kingsbury, and Patrick Thornberry express greater concern over internal processes or democratic entitlement issues
vis-à-vis state formation.
14. See generally OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELFDETERMINATION (Pekka Aikio & Martin Scheinin eds., 2000) (examining the ways in
which indigenous peoples’ right to self-determination is expressed and received in various fora); Michael Holley, Recognizing the Rights of Indigenous Peoples to Their Traditional Lands: A Case Study of an Internally Displaced Community in Guatemala, 15
BERKELEY J. INT’L L. 119 (1997) (examining the Mayan claim to their traditional lands);
W. Michael Reisman, Protecting Indigenous Rights in International Adjudication, 89
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This Article is divided into five main analytical parts. Part I explains
the importance of the territorial state and the notion of territory in international law. Part II briefly outlines the laws governing the acquisition of
territory in international society, identifies their historical antecedents,
and provides a brief exposé of the methods legitimized by these doctrines. Against the more theoretical backdrop of Part II, Part III plots the
development of the doctrinal tools that govern issues of territoriality in
international law, tracing the reemergence of: (1) the doctrine of uti possidetis juris, with its attendant concept of the “critical date,” and (2) the
principle of terra nullius, exemplified by the Creole emancipation from
European rule. Part IV then reflects on the extent to which international
tribunals have subsequently developed these doctrinal tools, with a focus
on their treatment by the International Court of Justice (“ICJ”). Lastly,
Part V examines how the international laws governing territoriality can
impact the right to self-determination.
I. STATEHOOD, TERRITORIAL RIGHTS, AND SELF-DETERMINATION
The sovereign state is enshrined at the heart of the international legal
system, where it functions as the primary actor in international law and
politics.15 In recognition of the rights of sovereign states, article 2(7) of
the United Nations (“U.N.”) Charter enunciates:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter; but this principle shall
AM. J. INT’L L. 350 (1995) (analyzing how the right to self-determination is being expressed in various domestic jurisdictions); Glen St. Louis, The Tangled Web of Sovereignty and Self-Governance: Canada’s Obligation to the Cree Nation in Consideration of
Québec’s Threat to Secede, 14 BERKELEY J. INT’L L. 380 (1996) (raising the selfdetermination question in the specific context of Québec).
15. See JOSHUA CASTELLINO, INTERNATIONAL LAW AND SELF-DETERMINATION: THE
INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH FORMULATIONS OF POSTCOLONIAL “NATIONAL” IDENTITY 75–108 (2000). See also J.A. Andrews, The Concept of
Statehood and the Acquisition of Territory in the Nineteenth Century, 94 L.Q. REV. 408
(1978) (providing insight into how the state was perceived in the context of colonization);
David Armstrong, Globalization and the Social State, 24 REV. INT’L STUD. 461 (1998)
(discussing the impact of globalization on the state); J. Samuel Barkin & Bruce Cronin,
The State & the Nation: Changing Norms and the Rules of Sovereignty in International
Relations, 48 INT’L ORG. 107 (1994) (analyzing the pressures on the sovereign state as a
concept and actor in international society).
2008]
TERRITORIAL INTEGRITY
507
not prejudice the application of enforcement measures under Chapter
VII.16
Article 1 of the Montevideo Convention on the Rights and Duties of
States of 1934 sets out the key attributes of sovereignty: “[t]he State as a
person of international law should possess the following qualifications:
(a) a permanent population; (b) a defined territory; (c) government; and
(d) capacity to enter into relations with the other states.”17 Though each
of these concepts is problematic,18 “a defined territory” remains fundamental to the recognition of statehood and the trappings of sovereignty
that accompany it.19
To identify such fixed territory, international law uses the doctrinal
tools of uti possidetis juris and its older companion principle terra nullius. Despite ancient origins in Roman law,20 the periodic restatement of
the doctrine of uti possidetis juris perpetuates its salience in the international law governing territory.21
The doctrine of uti possidetis juris guarantees the rights of existing
stakeholders to the land,22 and posits “that new States will come to inde16. U.N. Charter art. 2(7). See also 1 THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY 148–163 (Bruno Simma, Hermann Mosler & Andreas Paulus eds., 2002)
(discussing the interpretation of article 2(7)).
17. Montevideo Convention, supra note 8, art. 1.
18. See CASTELLINO, INTERNATIONAL LAW AND SELF-DETERMINATION: THE
INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH FORMULATIONS OF POSTCOLONIAL “NATIONAL” IDENTITY, supra note 15, at 77–89. See also Charles G. Fenwick,
The Inter-American Conference for the Maintenance of Peace, 31 AM. J. INT’L L. 201
(1937) (providing a more detailed exposé of the issues germane to the Montevideo Convention).
19. See TITLE TO TERRITORY (Malcolm Shaw ed., 1986). See generally SIBA
N’ZATIOULA GROVOGUI, SOVEREIGNS, QUASI SOVEREIGNS AND AFRICANS: RACE AND
SELF-DETERMINATION IN INTERNATIONAL LAW 185–96, 205–06 (1996) (addressing sovereignty in the context of decolonization in Africa).
20. See generally H.F. JOLOWICZ & BARRY NICOLAS, HISTORICAL INTRODUCTION TO
THE STUDY OF ROMAN LAW 259–63 (3d ed. 1972) (discussing the possessory interdicts).
21. See Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second
Breath for the Self-Determination of Peoples, 3 EUR. J. INT’L L. 178 (1998) (discussing
more recent enunciations of the doctrine of uti possidetis juris in the context of the Badinter Commission). See also Peter Radan, Post-Succession International Orders: A Critical Analysis of the Workings of the Badinter Commission, 24 MELB. U. L. REV. 50
(2000) (providing a detailed analysis of the Commission, its working, and its impact on
the disintegration of the state of Yugoslavia).
22. See Malcolm N. Shaw, The Heritage of States: The Principle of Uti Possidetis
Juris Today, 67 BRIT. Y.B. INT’L L. 97, 97–101 (1996). See generally Kaiyan H. Kaikobad, Some Observations on the Doctrine of Continuity and Finality of Boundaries, 49
BRIT. Y.B. INT’L L. 119, 126–27 (1983); Steven R. Ratner, Drawing a Better Line: Uti
Possidetis and the Borders of New States, 90 AM. J. INT’L L. 590 (1996).
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[Vol. 33:2
pendence with the same boundaries that they had when they were administrative units within the territory or territories of one colonial power.”23
The centrality of “order” to the propagation of international law cannot
be underestimated, least of all at a time of transition when the fear of
chaos and insurgence is uppermost in the new rulers’ minds.24 While
Hugo Grotius did not refer to the doctrine of uti possidetis juris in De
Pacis Juris Bella, his tacit support can be gleaned from his emphasis on
the concept of order, which he considered to be a prime requirement
within international law.25
The doctrine itself traces its roots directly to the jus civile in the Roman
law norm of uti possidetis ita possidetis, which forms the basis of the
modern doctrine.26 Translated, uti possidetis ita possidetis reads, “as you
possess, so you possess.”27 This possessory interdict was available to a
praetor to prevent the “disturbance of the existing state of possession of
immovables, as between two individuals.”28 Thus, it was a tool to promote and maintain order.29 According to the jus civile, the object of the
interdict was to recognize the status quo in any given dispute involving
immovable property,30 and was therefore designed to protect existing
arrangements of possession without regard to the merits of the dispute.31
Nevertheless, possession had to be acquired from the other party nec vi,
nec clam, nec precario, i.e., without force, secrecy, or permission.32
23. Shaw, supra note 22, at 97.
24. See generally ORDER & JUSTICE IN INTERNATIONAL RELATIONS (Rosemary Foot,
John Lewis Gaddis & Andrew Hurrell eds., 2003) (discussing the importance of order).
25. See BENYAMIN NEUBERGER, NATIONAL SELF-DETERMINATION IN POSTCOLONIAL
AFRICA 4 (1986); Rosalyn Higgins, Grotius and the Development of International Law in
the United Nations Period, in HUGO GROTIUS AND INTERNATIONAL RELATIONS 267 (Hedley Bull, Benedict Kingsbury & Adam Roberts eds., 1992).
26. See generally JAMES MUIRHEAD, HISTORICAL INTRODUCTION TO THE PRIVATE LAW
OF ROME 89–212 (Henry Goudy & Alexander Grant eds., 3d ed. 1916); JOLOWICZ &
NICOLAS, supra note 20, at 259–63 (discussing the possessory interdicts).
27. Joshua Castellino & Steve Allen, The Doctrine of Uti Possidetis: Crystallization
of Modern Post-Colonial Identity, 43 GERMAN Y.B. INT’L L. 205, 205 (2000).
28. John Bassett Moore, Memorandum on Uti Possidetis: Costa Rica-Panama Arbitration 1911, in THE COLLECTED WORKS OF JOHN BASSETT MOORE 328, 328 (1944).
29. In the late Republic, the Praetor Urbanus was responsible for the administration
of jus civile and the Praetor Peregrinus held the same position with regard to jus gentium. See MUIRHEAD, supra note 26, at 219.
30. See W.W. BUCKLAND, A TEXT-BOOK OF ROMAN LAW FROM AUGUSTUS TO
JUSTINIAN 205–08 (3d ed. 1963). This passage also discusses the extent to which res
nullius can come under private ownership through occupatio, or occupation. See id.
31. See JOSHUA CASTELLINO & STEVE ALLEN, TITLE TO TERRITORY IN INTERNATIONAL
LAW: A TEMPORAL ANALYSIS 5 (2003).
32. See JOLOWICZ & NICOLAS, supra note 20, at 259 n.2; MUIRHEAD, supra note 26, at
315–39.
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TERRITORIAL INTEGRITY
509
These restrictions on the acquisition of property by prescriptive claims
were generally developed to ensure that the de facto possessor exercised
his or her claim to the property as of right, and was thereby open to challenge by other interested parties.33
In contrast, the principle of terra nullius has limited contemporary significance.34 Initially employed to designate territory that was empty and
33. See BUCKLAND, supra note 30, at 205–08.
34. The doctrine of uti possidetis juris has been referred to as recently as 1992 in the
Badinter Commission’s treatment of the disintegration of Yugoslavia. See Matthew C.R.
Craven, The European Community Arbitration Commission on Yugoslavia, 66 BRIT. Y.B.
INT’L L. 333 (1995); Marc Weller, The International Response to the Dissolution of the
Socialist Federal Republic of Yugoslavia, 86 AM. J. INT’L L. 569 (1992). Moreover, uti
possidetis juris has continued salience in the ICJ’s docket of contentious cases. See Territorial and Maritime Dispute (Nicar. v. Colom.) (Dec. 13, 2007), available at
http://www.icj-cij.org/docket/files/124/14305.pdf (last visited Feb. 5, 2008); Territorial
and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v.
Hond.) (Oct. 8, 2007), available at http://www.icj-cij.org/docket/files/120/14075.pdf (last
visited Feb. 5, 2008); Frontier Dispute (Benin/Niger), 2005 I.C.J. 90 (July 12); Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El. Sal. v. Hond.), 2002 I.C.J. 392 (Dec. 18); Sovereignty over Pulau Ligitan and
Pulau Sipadan (Indon./Malay.), 2001 I.C.J. 575 (Oct. 23); Kasikili/Sedudu Island
(Bots./Namib.), 1999 I.C.J. 1045 (Dec. 13); Request for Interpretation of Judgment of 11
June 1998 in the Case Concerning the Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nig. v. Cameroon) 1999
I.C.J. 31 (Mar. 25); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.: Eq. Guinea intervening), 1998 I.C.J. 275 (June 11); Maritime Delimitation
and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 1994 I.C.J. 112
(July 1); Territorial Dispute (Libya/Chad), 1994 I.C.J. 6 (Feb. 3); Maritime Delimitation
in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 38 (June 14);
Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992
IC.J. 351 (Sept. 11); Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 I.C.J.
53 (Nov. 12); Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554 (Dec. 22); Application
for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahirya) (Tunisia v. Libya), 1985
I.C.J. 192 (Dec. 10); Continental Shelf (Libya /Malta), 1985 I.C.J. 13 (June 3); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 I.C.J. 246
(Oct. 12); Continental Shelf (Tunis./Libya), 1982 I.C.J. 18 (Feb. 24); Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19); Fisheries Jurisdiction (F.R.G. v.
Ice.), 1973 I.C.J. 56 (Feb. 3); Fisheries Jurisdiction (U.K. & N. Ir. v. Ice.), 1973 I.C.J. 3
(Feb. 2); North Sea Continental Shelf (F.R.G./Den.), 1969 I.C.J. 3 (Feb. 20); North Sea
Continental Shelf (F.R.G./Neth.), 1969 I.C.J. 3 (Feb. 20); Northern Cameroons (Cameroon v. U.K.), 1963 I.C.J. 15 (Dec. 2); South West Africa (Eth. v. S. Afr.), 1962 I.C.J. 319
(Dec. 21); South West Africa (Liber. v. S. Afr.), 1962 I.C.J. 319 (Dec. 21); Temple of
Preah Vihear (Cambodia v. Thail.), 1961 I.C.J. 17 (May 26); Arbitral Award Made by the
King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 I.C.J. 192 (Nov. 18); Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 I.C.J. 209 (June 20); Right of Pas-
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therefore free for colonization,35 terra nullius gradually took on racist
overtones.36 In 1975, the ICJ applied terra nullius to a territory in which
the people who inhabited it were not “socially and politically organized.”37 The ICJ provided legal sanction to a radically expanded definition of terra nullius—from its original meaning as “blank territory,” to
an understanding that encompassed territory that was not empty or void
of inhabitants.
This broad definition of terra nullius served historically to legitimize
the acquisition of large tracts of land throughout the nineteenth and early
twentieth centuries and had a particularly adverse effect on indigenous
sage over Indian Territory (Port. v. India), 1957 I.C.J. 125 (Nov. 26); Minquiers and
Ecrehos (Fr./U.K.), 1953 I.C.J. 47 (Nov. 17); Fisheries (U.K. v. Nor.), 1951 I.C.J. 116
(Dec. 18); Dispute Regarding Navigational and Related Rights of Costa Rica on the San
Juan River (Costa Rica v. Nicar.) (Application Instituting Proceedings) (Sept. 29, 2005),
available at http://www.icj-cij.org/docket/files/133/8268.pdf (last visited Feb. 5, 2008);
Maritime Delimitation in the Black Sea (Rom. v. Ukr.) (Application Instituting Proceedings) (Sept. 16, 2004), available at http://www.icj-cij.org/docket/files/132/1697.pdf (last
visited Feb. 5, 2008); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks
and South Ledge (Malay./Sing.) (Special Agreement) (July 24, 2003), available at
http://www.icj-cij.org/docket/files/130/1785.pdf (last visited Feb. 5, 2008); Maritime
Delimitation Between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.) (Application
Instituting Proceedings) (Mar. 12, 1991), available at http://www.icj-cij.org/docket/
files85/6843.pdf (last visited Feb. 5, 2008); Antarctica (U.K. v. Chile) (Application Instituting Proceedings) (Mar. 16, 1956), available at http://www.icj-cij.org/docket/
files/27/10783.pdf (last visited Feb. 5, 2008); Antarctica (U.K. v. Arg.) (Application Instituting Proceedings) (May 4, 1955), available at http://www.icj-cij.org/docket/
files/26/9065.pdf (last visited Feb. 5, 2008).
The principle of terra nullius has had continued significance in the limited context
of ownership of the Antarctic and outer space. See Philip C. Jessup & Howard J.
Taubenfeld, Outer Space, Antarctica, and the United Nations, 13 INT’L ORG. 363, 363
(1959) (“Such is the case with both Antartica and with outer space. In both instances the
absence of an indigenous population and the present inability to exploit what might be
called natural resources serve to distinguish them from historical examples like that of
Africa in the nineteenth century.”); Friedrich Kratochwil, Of Systems, Boundaries, and
Territoriality: An Inquiry into the Formation of the State System, 39 WORLD POL. 27
(1986) (discussing how resource regimes created by the Antarctic Treaty carefully
avoided territorial issues between states laying claim to the land); Peter A. Toma, Soviet
Attitude Towards the Acquisition of Territorial Sovereignty in the Antarctic, 50 AM. J.
INT’L L. 611 (1956) (“[N]otably after the second World War, claims and counterclaims to
sovereignty over these bleak lands have been numerous.”).
35. See Tomáš Bartoš, Uti Possidetis. Quo Vadis? 18 AUSTL. Y.B. INT’L L. 37, 44
(1997).
36. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 230–33.
37. Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 39 (Oct. 16).
2008]
TERRITORIAL INTEGRITY
511
communities.38 Once land was acquired, boundary lines were drawn to
demarcate ownership between settlers.39 These boundaries were eventually recognized as territorial demarcations on the basis of which valid
statehood—and its accompanying right of territorial integrity—could be
awarded.40 The system was then buffered from change in a period of
transition by the doctrine of uti possidetis juris, which sought to maintain
order by freezing the boundaries.41
The cumulative effect of the two doctrines of terra nullius and uti possidetis juris has been to create rigid geographic entities in a relatively
short period of time, within which dialogue based on ownership of territory had to be framed.42 To validate and legitimize an acquisition, international law brings into play the intertemporal rule, which buffers actions committed in previous eras from the scrutiny of more modern
norms and principles.43 In this way, international law is precluded from
raising legal questions and seeking self-correction with regard to the
well-documented woes of colonialism.44
38. See S.J. ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed. 2004) (locating the position of indigenous peoples within international legal discourse). See, e.g.,
Michael Asch, From Calder to Van Der Peet: Aboriginal Rights and Canadian Law,
1973–96, in INDIGENOUS PEOPLES’ RIGHTS IN AUSTRALIA, CANADA & NEW ZEALAND 428
(Paul Havemann ed., 1999) (examining the impact of case law and legislation concerning
indigenous people in Canada); Willem Assies, Indigenous Peoples and Reform of the
State in Latin America, in THE CHALLENGE OF DIVERSITY: INDIGENOUS PEOPLES AND
REFORM OF THE STATE IN LATIN AMERICA 15 (Willem Assies, Gemma van der Haar &
André J. Hoekema eds., 1998) (examining cases studies concerning indigenous peoples in
South America).
39. See C.H. Alexandrowicz, The Role of Treaties in the European-African Confrontation in the Nineteenth Century, in AFRICAN INTERNATIONAL LEGAL HISTORY 27 (A.K.
Mensah-Brown ed., 1975) (illustrating this process in the African context).
40. See, e.g., PARTITIONED AFRICANS: RELATIONS ACROSS AFRICA’S INTERNATIONAL
BOUNDARIES 1884–1984 (A.I. Asiwaju ed., 1985) (examining the implication of territorial divisions on African identities and nations).
41. See Bartoš, supra note 35, at 41 (“The essence of uti possidetis is to secure respect for the territorial boundaries of a newly independent State at the moment when
independence from a colonial power is achieved.”).
42. See Kaikobad, Some Observations on the Doctrine of Continuity and Finality of
Boundaries, supra note 22 (discussing the impact of the doctrine on state creation); Ravi
L. Kapil, On the Conflict Potential of Inherited Boundaries in Africa, 18 WORLD POL.
656 (1966); Jesse S. Reeves, International Boundaries, 38 AM. J. INT’L L. 533 (1944).
43. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 234–35.
44. See EDWARD MCWHINNEY, CONFLICT AND COMPROMISE: INTERNATIONAL LAW
AND WORLD ORDER IN A REVOLUTIONARY AGE 26–27, 65–66 (1981) (discussing selfcorrection in the context of territoriality in international law and the Western Sahara
Case). See also ELAZAR BARKAN, THE GUILT OF NATIONS: RESTITUTION AND
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[Vol. 33:2
The international regime was reinforced by domestic legal regimes.
Laws governing private property were simply not extended to annexed
territories.45 An infamous statement by Winston Churchill in 1937 captures the phenomenon in relation to the Palestinian claim to land:
I do not agree that the dog in a manger has the final right to the manger
even though he may have lain there for a very long time. I do not admit
that right. I do not admit for instance, that a great wrong has been done
to the Red Indians of America or the black people of Australia. I do not
admit that a wrong has been done to these people by the fact that a
stronger race, a higher-grade race, a more worldly wise race to put it
that way, has come in and taken their place.46
The statement reflects the racist underpinnings of the colonial impulse,
which was justified by recourse to law and artificially created title
deeds.47
Objective analyses of the temporal rule demonstrate that rigid application of the rule effectively precludes domestic courts from resolving
questions over native titles48 and reduces the principle into the handNEGOTIATING HISTORICAL INJUSTICES (John Hopkins Univ. Press 2001) (2000); KENNETH
ROBERTS-WRAY, COMMONWEALTH AND COLONIAL LAW (1966) (documenting the laws
that governed the Anglophone territories); William J. Aceves, Actio Popularis: The Class
Action in International Law, U. CHI. LEGAL F. 353 (2003); William Bradford, “With a
Very Great Blame on Our Hearts”: Reparations, Reconciliation, and an American Indian
Plea for Peace With Justice, 27 AM. INDIAN L. REV. 1 (2002); Lorie Graham, Reparations
and the Indian Child Welfare Act, 25 LEGAL STUD. F. 619 (2001) (showing the difficulty
of achieving reconciliation in the American Indian context); Byoungwook Park, Comfort
Women During World War II: Are U.S. Courts a Final Resort for Justice?, 17 AM. U.
INT’L L. REV. 403 (2002) (analyzing the possibility of raising such issues before American courts); World Conference Against Racism (Aug. 31, 2001–Sept. 7, 2001),
http://www.un.org/WCAR (discussing reparations for racial discrimination).
45. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 229–38.
46. Arundhati Roy, Lannan Reading and Conversation: Come September (Sept. 18,
2002) (quoting Winston Churchill’s statement in 1937), transcript available at
http://www.lannan.org/docs/arundhati-roy-020918-trans-read.pdf). An early discussion
concerning the treatment of native indigenous populations in the Americas arose and has
been referred to as the Las Casas-Sepúlveda Controversy (1550–1551). See JEANCLAUDE CARRIÈRE, THE CONTROVERSY OF VALLADOLID (Richard Nelson trans., Dramatist
Play Service 2005) (capturing the issues in a play by Jean-Claude Carrière, which is set in
a sixteenth-century Spanish monastery).
47. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 229–38.
48. See Taslim O. Elias, The Doctrine of Intertemporal Law, 74 AM. J. INT’L L. 285
(1980). See generally Matthew Chapman, Indigenous Peoples and International Human
Rights: Towards a Guarantee for the Territorial Connection, 26 ANGLO-AM. L. REV. 357
(1997); Siegfried Wiessner, Rights and Status of Indigenous Peoples: A Global Com-
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maiden of the imperial states and their global conquests, accentuating the
need to reexamine the legal system that legitimized these practices.
The right to self-determination has engaged a wide range of jurists.
However, despite the volumes written from various disciplinary perspectives, the right to self-determination remains an essentially contested
right with several meanings attributable to it. Koskenniemi sought to distinguish “romantic self-determination” from “classical selfdetermination.”49 However, even this broad-based analysis does not fully
encompass the aspirations that the term conjures up, nor does it address
the extent to which international law should play a role in catering to
these aspirations. As a result, the more that is written about selfdetermination, the more it seems to evade consensus.
Most authorities agree that the right to self-determination derives from
the Enlightenment era, where Jaccobean followers saw the right to determine their collective destiny as an extension of the individual liberties
each individual was assumed to have.50 The right arguably came to
prominence in international society through America’s declaration of
independence from the British Crown and the rising up of the French
Revolution under of the slogan of liberté, égalité, fraternité in the last
few decades of the eighteenth century.51
parative and International Legal Analysis, 12 HARV. HUM. RTS. J. 57 (1999) (discussing a
legacy of conquest of various indigenous peoples).
49. See Koskenniemi, supra note 11, at 249–53. The “classical school” is based on
patriotic values and on a Hobbessean reading of international society—where a nation is
a collection of individuals linked by a decision undertaken through a specific process,
yielding the fruit of a mechanism that would enable it to participate in the daily affairs of
an entity. See id. at 249. On the other hand, the “romantic” or secessionist model views
the nation as something more fundamental than merely a decision-making procedure. See
id. at 250. It is therefore less concerned with procedural aspects of how popular will is
expressed and more concerned with the objective to which this will is exercised and
whether it pertains to an appropriate manifestation of an authentic community. See id.
50. See KAREN KNOP, DIVERSITY AND SELF-DETERMINATION IN INTERNATIONAL LAW
91–109 (2002) (discussing the origin of the discourse). See also Thomas M. Franck, The
Emerging Right to Democratic Governance, 86 AM. J. INT’L L. 46 (1992) (discussing the
founding principles of self-determination in the context of democratic entitlement); Thomas M. Franck, Postmodern Tribalism and the Right to Secession, in PEOPLES AND
MINORITIES IN INTERNATIONAL LAW 3 (Catherine Brölmann, René Lefeber & Marjoleine
Zieck eds., 1993) (examining the doctrine in a modern and problematic context).
51. Franck, The Emerging Right to Democratic Governance, supra note 4 (illustrating
the impact of the American declaration of independence on the doctrine of selfdetermination). See generally EDWARD DUMBAULD, THE DECLARATION OF INDEPENDENCE
AND WHAT IT MEANS TODAY (1950) (regarding the American Revolution); THE FRENCH
IDEA OF FREEDOM: THE OLD REGIME AND THE DECLARATION OF RIGHTS OF 1789 (Dale
Van Kley ed., 1994) (discussing the French Revolution).
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Inspired by these events, the Creoles sought to forge independent states
out of the administrative territories created under Spanish and Portuguese
rule in South America.52 In severing their ties to Madrid and Lisbon, the
Creoles established the basis for the modern states of Latin America, and
unwittingly contributed to the creation of a model that would henceforth
be used in decolonization.53
In the aftermath of World War I, U.S. President and former professor
of political science Woodrow Wilson resuscitated the right to selfdetermination, suggesting that it would be a useful indicator for recognizing the democratic consent of smaller entities and nations.54 He determined the will of the people through a string of plebiscites in territories whose fates remained in the balance after the defeat of the AustroHungarian and Ottoman empires.55
Subsequently, self-determination reemerged on the international stage
in yet another guise during the period of decolonization. Despite use of
the term in the U.N. Charter56 and the strength of two particularly
52. See HERMAN G. JAMES & PERCY A. MARTIN, THE REPUBLICS OF LATIN AMERICA
79–109 (1923) (explaining the Creole motivations in seeking independence). See also
WHAT JUSTICE? WHOSE JUSTICE? FIGHTING FOR FAIRNESS IN LATIN AMERICA (Susan Eva
Eckstein & Timothy P. Wickham-Crowley eds., 2003) (providing a contemporary take on
the success of the Creole motivations).
53. JAMES & MARTIN, supra note 52 at 79–109 (discussing the modalities of this
change and the impact on future decolonization processes).
54. See SHARON KORMAN, THE RIGHT OF CONQUEST: THE ACQUISITION OF TERRITORY
BY FORCE IN INTERNATIONAL LAW AND PRACTICE 135–78 (1996).
55. See WOODROW WILSON, THE NEW DEMOCRACY: PRESIDENTIAL MESSAGES,
ADDRESSES, AND OTHER PAPERS (1913–1917) (Ray Stannard Baker & William E. Dobbs
eds., 1926); Anthony Whelan, Wilsonian Self-Determination and the Versailles Settlement, 43 INT’L & COMP. L.Q. 99 (1994).
56. See U.N. Charter art. 1(2) (“To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace . . . .”). In addition, article 55
states:
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 cooperation; and
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strongly worded General Assembly resolutions,57 the meaning of selfdetermination remained contested58 until General Assembly Resolution
1541 (XV).59 The General Assembly explained that self-determination
was a decolonization process that could result in: (1) secession of a territory to form a new state; (2) association of a territory with an existing
state; or (3) integration of a territory into an already existing state.60 As a
result, self-determination became the vehicle of choice for the decolonization process, even though it treated an emerging unit’s territory as coextensive with boundaries established during colonial rule.61
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language,
or religion.
Id. art. 55.
57. See G.A. Res. 1514 (XV), at 67, U.N. Doc. A/4684 (Dec. 14, 1960) (“All people
have the right to self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social, and cultural development.”)
[hereinafter G.A. Res. 1514 (XV)]; Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/8028 (Oct. 24, 1970)
[hereinafter G.A. Res. 2625 (XXV)].
58. See Koskenniemi, supra note 11. See also DAVID RAIČ, STATEHOOD AND THE LAW
OF SELF-DETERMINATION (2002) (providing a more thorough and contemporary analysis
of self-determination).
59. See G.A. Res. 1541 (XV), U.N. Doc. A/Res/1541 (XV) (Dec. 15, 1960) [hereinafter G.A. Res. 1541 (XV)]. G.A. Res. 1541 (XV) was adopted at the 15th session of the
U.N. General Assembly as a companion resolution to G.A. Res. 1514 (XV). Id. See also
W. OFUATEY-KODJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW
115–28 (1977) (discussing the resolutions).
60. See G.A. Res. 1541 (XV), supra note 59, at 29. See also G.A. Res. 2625 (XXV),
supra note 57, at 124 (“The establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of
self-determination by that people.”). See also RUPERT EMERSON, SELF-DETERMINATION
REVISITED IN THE ERA OF DECOLONIZATION 28–30 (Harvard Univ. Occasional Papers in
International Affairs, No. 9, 1964) (discussing G.A. Res. 1514). See generally U.N. Econ.
& Soc. Council [ECOSOC], Sub-Comm. on Prevention of Discrimination & Prot. of
Minorities, The Right to Self-Determination: Implementation of United Nations Resolutions, U.N. Doc. E/CN.4/Sub.2/405/Rev.1 (1980) (prepared by Héctor Gros Espiell)
(commenting on self-determination within the U.N.); U.N. ECOSOC, Sub-Comm. on
Prevention of Discrimination & Prot. of Minorities, The Right to Self-Determination:
Historical and Current Developments on the Basis of United Nations Instruments, U.N.
Doc. E/CN.4/Sub.2/Rev.1 (1981) (prepared by Aureliu Cristescu) (commenting on selfdetermination within the U.N.).
61. See G.A. Res. 1541 (XV), supra note 59, at 19. See generally G.A. Res. 1514
(XV), supra note 57, at 67 (“[A]ll peoples have an inalienable right to complete freedom,
the exercise of their sovereignty and the integrity of their national territory . . . .”); G.A.
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The right to self-determination was transformed from an indicator of
political process to a right in law when it was included as the foundational right in article 1 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) and the International Covenant on
Civil and Political Rights (“ICCPR”).62 However, despite this primacy,
the land rights ownership component was not made explicit.63
The inclusion of the right to self-determination in the Declaration on
Principles of International Law Concerning Friendly Relations and CoOperation among States in Accordance with the Charter of the United
Nations further reflected the ascent of self-determination in public international law.64 Many classify the right to self-determination as a norm of
jus cogens, even though the phrasing of the Declaration itself clearly limits application of the doctrine to decolonization, with certain other clawbacks over territorial integrity that leave the real application relatively
ambiguous.65
Despite these points of consensus, vital questions remain: (1) whether
the right to self-determination has any validity in post-colonial international society;66 (2) who is entitled to claim a right to self-determination;
Res. 2625 (XXV), supra note 57, at 123 (“[A]ll peoples have the right freely to determine, without external interference, their political status and to pursue their economic,
social and cultural development, and every State has the duty to respect this right in accordance with the provisions of this Charter.”).
62. See International Covenant on Economic, Social, and Cultural Rights art. 1, Dec.
16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR]; International Covenant on Civil and
Political Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
63. See DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE 14–16 (1991) (discussing the initial reluctance to accept self-determination as a legal rather than a political
right due to its vague and undefined nature). See generally SARAH JOSEPH ET AL., THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS AND
COMMENTARY (2000).
64. See G.A. Res. 2625 (XXV), supra note 57, at 123. See also Ian Sinclair, The Significance of the Friendly Relations Declarations, in THE UNITED NATIONS AND THE
PRINCIPLES OF INTERNATIONAL LAW: ESSAYS IN MEMORY OF MICHAEL AKEHURST 1
(Vaughan Lowe & Colin Warbrick eds., 1994) (explaining the importance of the 1970
Declaration); Patrick Thornberry, The Principle of Self-Determination, in THE UNITED
NATIONS AND THE PRINCIPLES OF INTERNATIONAL LAW: ESSAYS IN MEMORY OF MICHAEL
AKEHURST 175 (Vaughan Lowe & Colin Warbrick eds., 1994) (giving insight into the
inclusion of self-determination as one of the identified principles).
65. See G.A. Res. 2625 (XXV), supra note 57. See generally Sinclair, supra note 64
(explaining the importance of the 1970 Declaration).
66. “Colonization” appears to refer to European subjugation of non-European peoples. “Decolonization” is therefore the process whereby European countries ceded this
dominance over non-European peoples. These concepts, narrowly defined, do not directly
extend to the context of indigenous peoples. See F. VAN LANGENHOVE, THE QUESTION OF
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and (3) how the legal norm may need to be tempered to the political realities.67
II. THE THEORY AND LAW GOVERNING THE ACQUISITION OF TERRITORY
IN INTERNATIONAL LAW
To understand the legal framework governing the acquisition of territory, it is worthwhile to recall the historical antecedents fundamental to
the development of jus gentium, or the law of nations, itself.68 In assessing Greek and Roman contributions to the development of international
law, MacIver stated in 1926:
The Greeks made very important advances in the science of law, but
they never attained to the consistent doctrine or the logical practice
which the Romans built up. To begin with, they did not possess . . . a
term corresponding to the Roman ius, the ordered system of which an
individual lex is merely an example. . . . Moreover, the universality of
law was far from being recognized. . . . The idea that law has a common application to all persons within a political territory was alien to
the Greeks. The idea of a universal ius gentium was not yet born.
...
It was Rome that liberated the universality of law, that transcended the
sophistic antithesis between nature and convention, and that first embodied in one comprehensive and unified code the distinctive order of
the state.69
For MacIver, the first real departure point for the emergence of jus
gentium occurred when Rome liberated itself from the famous Twelve
Tablets.70 While Rome may have premised the liberation on the need to
preserve the special rights of Roman citizens in distinction to aliens,71 the
ABORIGINES BEFORE THE UNITED NATIONS: THE BELGIAN THESIS (1954) (discussing the
Belgian Thesis and its relation to indigenous peoples).
67. See CASTELLINO, INTERNATIONAL LAW AND SELF-DETERMINATION: THE
INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH FORMULATIONS OF POSTCOLONIAL “NATIONAL” IDENTITY, supra note 15, at 43.
68. For a historical analysis of the development of international law in the context of
title to territory, see GEORG SCHWARZENBERGER, 1 INTERNATIONAL LAW 289–309 (3d ed.
1957) and GEORG SCHWARZENBERGER, THE FRONTIERS OF INTERNATIONAL LAW 43–59
(1962).
69. R.M. MACIVER, THE MODERN STATE 103–05 (1926).
70. See MUIRHEAD, supra note 26, at 89–97. The Twelve Tablets were inscribed in
stone as the first form of codified Roman law after a study of the laws of Greece and
Greek cities of Italy. See id. at 89–90. They became the basis of jus civile in Rome and
were applicable to all Roman citizens. See id. at 82.
71. See MACIVER, supra note 69, at 106.
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principles under the jurisdiction and judgment of the Praetor Peregrinus
gradually took on a complexity that made them superior in many respects
to jus gentium.72 However, like much colonial law, jus gentium developed in the intellectual circles of the capital and was accepted as universal simply by virtue of its having been so deemed.73
It is important to understand these origins of jus gentium in order to
understand the doctrines that have subsequently become fundamental
constraints governing the treatment of territory under international law.
These doctrines originated in a distinct cultural context that is not the
same in all the diverse communities across the globe. As a result, the
doctrines inevitably fail to take into account complexities that are particularly germane to notions of identity and territory. Oppenheim’s International Law highlights the lack of unanimity among members of the
international community vis-à-vis the modes of territorial acquisition.
This, however, is attributed to the fact that the concept of state territory
has changed considerably from the times of Grotius, through the Middle
Ages, and to contemporary society.74 Therefore:
[T]he acquisition of territory by a state normally means the acquisition
of sovereignty over such territory. In these circumstances the Roman
law scheme of “modes” concerning the acquisition of private property
are no longer wholly appropriate.75
Irrespective of the distinction between historical acquisition of territory—based more on private modes of acquisition—and contemporary
acquisition of territory—occurring under greater international scrutiny—
the modes of acquisition remain the same in the annals of public international law:76
72. See id. at 107.
73. See id. at 106; Alexandrowicz, The Role of Treaties in the European-African Confrontation in the Nineteenth Century, supra note 39, at 35–36, 61–63. Also like the colonial law that was to follow in later centuries, distinctions were made between the rights of
citizens and the rights of subjects. See id. Perhaps the most explicit example of these
distinctions concern the system of capitulations that were put in place to safeguard the
rights of citizens of the metropolitan states (i.e., the colonizing state) when working
abroad. See id.
74. OPPENHEIM’S INTERNATIONAL LAW, PEACE 678–79 (Robert Jennings & Arthur
Watts eds., 9th ed. 1992) [hereinafter OPPENHEIM’S INTERNATIONAL LAW, PEACE].
75. Id. at 679.
76. See IAN BROWNLIE, AFRICAN BOUNDARIES: A LEGAL AND DIPLOMATIC
ENCYCLOPAEDIA (1979) (providing an authoritative and comprehensive view of the theory and practice behind the acquisition of African territory and boundaries in public international law). Compared to territorial acquisition, territory can be lost through six
modes—the corresponding five modes of acquisition and, in addition, the loss of territory
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(1) Cession: A state acquires territory through transfer of sovereignty by the “owner state;”77
(2) Occupation: A state appropriates territory over which another
state is not sovereign;78
(3) Accretion: A state acquires territory through natural or artificial formations, without violating another state’s sovereignty;79
(4) Subjugation: A state acquires territory through conquest and
subsequent annexation, where war-making is a sovereign right,
and not illegal;80
through revolt or dereliction. See also OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra
note 74, at 716–18.
77. See JENNINGS, supra note 10, at 16–19; J.H.W. VERZIJL, 3 INTERNATIONAL LAW IN
HISTORICAL PERSPECTIVE 11–13 (1970). See also OPPENHEIM’S INTERNATIONAL LAW,
PEACE, supra note 74, at 679–82 (explaining that cession may take different forms, including the sale of territory, as occurred in Alaska in 1867 and the Danish West Indies in
1916). One example of a cession is the giving of Bombay by the Portuguese to the British
in 1661 as part of the dowry of Catherine of Braganza, who married Charles II. See Anthony Farrington, Trading Places: The East India Company and Asia, 52 HIST. TODAY
40, 40 (2002).
78. See generally ARTHUR S. KELLER, OLIVER J. LISSITZYN & FREDERICK J. MANN,
CREATION OF RIGHTS OF SOVEREIGNTY THROUGH SYMBOLIC ACTS 1400–1800 (1938);
NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 146–49
(1944).
79. See OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 696–98. Accretion would include the construction of embankments, breakwaters, and dykes while also
covering the augmentation of territory through natural processes such as alluvions, deltas,
emerging islands, and abandoned river beds. Id.
80. See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 112–
22 (1963). See also Application for Revision of the Judgment of 11 September 1992 in
the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El. Sal. v. Hond.), 2002 I.C.J. 392 (Dec. 18)
(illustrating a modern revision claim based on avulsion). El Salvador’s revision claim
was based on the avulsion of the river Gaoscorán, in addition to the Carta Esférica and
the report of the 1794 El Activo expedition. Id. at 401. To open revision proceedings, all
the conditions contained in article 61 of the Statute of the ICJ need to be fulfilled. See
Statute of the International Court of Justice art. 61, June 26, 1945, 59 Stat. 1055, 33
U.N.T.S. 933. The application must be based on “discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment was given, unknown . . .
not due to negligence.” Id. art. 61(1). In addition, the application must be made within six
months after the new fact is discovered and within ten years after the original judgment.
Id. art. 61(4)–(5). In the application for revision of the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), the Chamber found that El
Salvador’s request for revision did not satisfy the conditions set down in article 61 on the
basis that the facts alleged were not new facts in the sense intended by article 61. Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the
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(5) Prescription: A state acquires territory through continuous
and undisturbed exercise of sovereignty over the territory.81
Of these modes of acquisition, the two that merit further discussion in
terms of the doctrinal tools governing territoriality—especially in examining the nexus between self-determination and territoriality—are occupation and subjugation.
“Occupation,” as discussed in this context, is considered an original
mode of acquisition, and is therefore different from the mode whereby a
state takes control of a territory by military force.82 Rather, occupation
must be performed by the state while serving a state function, or the state
must acknowledge the act upon performance.83 Occupation has two essential elements: possession and administration.84 First, the territory in
question must be terra nullius, or unoccupied by a state, at the moment
of possession:85
The only territory which can be the object of occupation is that which
does not already belong to any state, whether it is uninhabited, or inhabited by persons whose community is not considered to be a state;
for individuals may live on a territory without forming themselves into
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El. Sal. v. Hond.), 2002 I.C.J. at 409–11.
81. See OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 705–08 (reflecting the views of leading international jurists in the historical evolution of this concept).
82. See id. at 686–87. Interestingly, the discussion of occupation during times of war
is contained in an altogether separate volume of these legal annals. See OPPENHEIM’S
INTERNATIONAL LAW, DISPUTES, WAR AND NEUTRALITY (Robert Jennings & Arthur Watts
eds., 9th ed. 1992).
83. OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 687.
84. Id. at 688. “Real” occupation is differentiated from “fictitious” occupation with
the former labeled “effective” occupation. Id.
85. The possession element is reflected in recent Australian case law. See, e.g., Mabo
v. Queensland II (1992), 175 C.L.R. 1 (Austl.) (discussing the status of Australian territory and its relationship to the aboriginal populations that lived on it at the time of colonization, in the specific context of a case raised by Eddie Mabo). The reasoning in this case
was central to the overturning of 200 years of precedent. See ESSAYS ON THE MABO
DECISION (1993); Julie Cassidy, Observations on Mabo & Ors v. Queensland, 1 DEAKIN
L. REV. 37 (1994); Michael Legg, Indigenous Australians and International Law: Racial
Discrimination, Genocide and Reparations, 20 BERKELEY J. INT’L L. 387, 408–10 (2002)
(capturing a discussion that began when the U.N. Committee for the Elimination of Racial Discrimination took objection to Australia’s Native Title Act); Gary D. Meyers &
John Mugambwa, The Mabo Decision: Australian Aboriginal Land Rights in Transition,
23 ENVTL. L. 1203, 1204–05 (1993) (providing an analysis of the impact of the Mabo
decision); Gerry Simpson, Mabo, International Law, Terra Nullius and the Stories of
Settlement: An Unresolved Jurisprudence, 19 MELB. U. L. REV. 195 (1993). See also
PETER BUTT & ROBERT EAGLESON, MABO, WIK & NATIVE TITLE (3d ed. 1998) (1993)
(providing a plain English explanation of the court’s reasoning).
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521
a state proper exercising sovereignty over such territory. The territory
of any state however is obviously not a possible object of occupation;
and it can only be acquired through cession or, formerly, by subjugation.86
Thus, individuals may live on a territory without organizing themselves
into proper states that exercise sovereignty over the territory. Therefore,
the relatively objective criterion concerning occupation, i.e., terra nullius, has been altered by a subjective element that considers the kind of
social and political organization that may exist within a territory. This
reading of the doctrine of occupation has dominated cases concerning
territoriality in international law. For example, in the Western Sahara
Case, the ICJ determined that the Saharawis were not “socially and politically organized,”87 and therefore were not occupants of the western
part of the Sahara.88
Even when possession by the occupying state has been recognized, the
occupying state must also establish administration over the entire territory.89 Thus, for an occupation to be an effective title-generating acquisition, “it is necessary that . . . [the occupying state] should take the territory under its sway (corpus) with the intention of acquiring sovereignty
over it (animus).”90 There must be some degree of settlement, accompanied by a formal act that announces the act of occupation and the determination to extend sovereignty over the territory.91 The second element
then flows from the first; the occupying state must establish a form of
administration that reveals the occupying state’s exercise of sovereignty
in the territory. The failure to extend administrative regimes over the territory would bring into question the effectiveness of the occupation and,
in theory, would leave the territory open to acquisition by other sovereigns.92
In many circumstances, twentieth century colonial flags were raised
over newly demarcated territories without effective control over all inhabitants,93 and thus acquisition of inhabited territory based on a subjec86. OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 687 (internal citations omitted).
87. Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 39 (Oct. 16).
88. See id. at 83–102 (separate opinion of Judge Ammoun).
89. OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 688–89.
90. Id. at 689. This notion itself derives directly from the Roman law governing private property. See generally W.W. BUCKLAND & A. MCNAIR, ROMAN LAW AND COMMON
LAW: A COMPARISON OUTLINE 70 (2d ed. 1952).
91. OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 689.
92. See id.
93. See KORMAN, supra note 54, at 41–66 (discussing the rights of so-called European states and “barbarian” political communities.). Robert Jackson has advanced a simi-
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tive determination of the inhabitants’ society was compounded by a failure to respect the conditions necessary to generate titular or possessory
rights. While it could be argued that the colonization of Africa and, to a
lesser extent, of Asia94 occurred in the shadow of the dubious rule
adopted by the Berlin West Africa Congress of 1899, which permitted
claims to contiguous territories based on possession of the coast, the action in the Americas clearly predates this rule.95
Subjugation, the other principal means of acquisition, occurs through
conquest and subsequent acquisition, where war is a sovereign right. To
acquire a territory through subjugation: (1) the conquering power must
establish conquest, (2) the state of war must have ended, and (3) the conquering power must formally annex the territory.96 This method of acquilar point in a more contemporary context, suggesting that many states in Africa could be
considered quasi-states on very similar grounds. See Robert Jackson, Juridical Statehood
in Sub-Saharan Africa, 46 J. INT’L AFF. 17 (1992). Jackson’s work on this issue in the
context of the African state was controversial. See GROVOGUI, supra note 19, at 182–84.
However, it has salience in terms of indigenous peoples who live in isolatation and are
therefore only notionally subjects of the territorial states that claim jurisdiction over
them. The classic examples of this are the indigenous peoples in the Amazon. See Gavney Moore & Maria Carmen Lemos, Indigenous Policy in Brazil: The Development of
Decree 1775 & the Proposed Raposa/Serra do Sol Reserve, Roraima, Brazil, 21 HUM.
RTS. Q. 444 (1999); Maria G. M. Rodrigues, Indigenous Rights in Democratic Brazil, 24
HUM. RTS. Q. 487 (2002).
94. For a treatise on the colonization of Asia, see HARRY G. GELBER, NATIONS OUT OF
EMPIRES: EUROPEAN NATIONALISM AND THE TRANSFORMATION OF ASIA (2001) (linking
the events taking place in Europe with their impact in Asian colonization and concluding
with some well thought-out ironies).
95. See infra notes 77–79 and accompanying text. See also THE SCRAMBLE FOR
AFRICA: DOCUMENTS ON THE BERLIN WEST AFRICAN CONFERENCE AND RELATED
SUBJECTS 1884/1885 (R.J. Gavin & J.A. Betley eds., 1973); Antony Allott, Boundaries in
Africa: A Legal and Historical Survey, in AFRICAN INTERNATIONAL LEGAL HISTORY 69
(A.K. Mensah-Brown ed., 1975).
96. OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 699. Subjugation is
explained as follows:
At no period did conquest alone and ipso facto make the conquering state the
territorial sovereign of the conquered territory, even though such territory came
through conquest for the time being under the sway of the conqueror. Conquest
was a mode of acquisition only if the conqueror, after having firmly established
the conquest, and the state of war having come to an end, then formally annexed the territory. If a belligerent conquered part of the enemy territory and
afterwards made the vanquished state cede the conquered territory in the treaty
of peace the mode of acquisition was not subjugation but cession. Such a treaty
of cession, however, would now be qualified by article 52 of the Vienna Convention on the Law of Treaties . . . .
Id. (internal citations omitted).
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sition predominated in Latin America, but was not otherwise frequently
employed. Title by subjugation was rare because the conquering power
typically enforced a treaty of cession and article 10 of the League of Nations Covenant outlawed war waged for territorial acquisition.97 While
not suggesting that wars occurring before the passage of article 10 of the
League of Nations Covenant were legal,98 many jurists appear to assume
that such events are beyond blame since they are subject to the intertemporal rule of law.99 Although the tendency to borrow principles from
domestic law has pervaded and developed much of international law,100
respect for property, central to property law regimes in colonial states,
was not extended to cover the acquisition of territories beyond the metropolitan state.101 It has been suggested that the signing of treaties ceding
subjugated territories would only now be qualified by article 52 of the
Vienna Convention on the Law of Treaties, which invalidates any treaty
produced through the threat or use of force in violation of international
law.102
97. Id. See also League of Nations Covenant art. 10.
98. See Christine Gray, The Use of Force and the International Legal Order, in
INTERNATIONAL LAW 589 (Malcolm D. Evans ed., 2d ed. 2006). See generally CHRISTINE
GRAY, INTERNATIONAL LAW & THE USE OF FORCE 24–50 (2000).
99. Literature on international law is surprisingly silent on the aftermath of colonization. While there are considerable sources that comment on the self-determination aspect
of this process, very few seek to examine the impact of this principle on the domestic
polities created. This is perhaps justifiable because it is a greater concern for human
rights literature. However, even a glance at the index pages of human rights journals
shows that relatively scant attention is paid to the extent to which effective political participation, or true decolonization, has actually occurred within post-colonial states. In
sharp contrast, in the 1960s international society scrutinized decolonization almost as
intensely as the current development of modern international criminal law.
100. See infra Part III.A (discussing the injection of jus civile principles into jus gentium in the context of the origins of the doctrine of uti possidetis juris).
101. See generally CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL
LAW: A TEMPORAL ANALYSIS, supra note 31, at 29–56. It could be argued that the development of domestic property regimes, along with international law principles as framed
here, would have prevented the acquisition of territory through wars. If such wars were
nonetheless waged, any unequal or unfair treaties of cession would be similarly invalidated based on domestic contract law, which frames the laws governing treaties.
102. See Vienna Convention on the Law of Treaties art. 52, May 23, 1969, 1155
U.N.T.S. 331. Article 52 of the Vienna Convention on the Law of Treaties is titled “Coercion of a State by Threat or Use of Force,” and states: “A treaty is void if its conclusion
has been procured by the threat or use of force in violation of the principles of international law embedded in the Charter of the United Nations.” Id. In the context of colonization, colonial powers could argue that the entity coming under colonization was not a
state, and therefore beyond the remit of such protection. However, this defense, and the
argument that the Vienna Convention of 1969 differs from the standard prevailing at the
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III. THE EMERGENCE AND IMPACT OF THE DOCTRINES OF UTI POSSIDETIS
JURIS AND THE PRINCIPLE OF TERRA NULLIUS
Though the principle of terra nullius was derived from jus gentium and
has been inscribed in the annals of international law, it came to prominence in the context of the European expansion into the Americas.103
This episode in human history also contributed to the evolution of the
doctrine of uti possidetis juris.104 However, uti possidetis juris was borrowed from jus civile rather than jus gentium.105 Uti possidetis juris became the cornerstone of the right to self-determination in the aftermath
of the Creole struggle, in which the Creoles, of European descent, sought
Latin American emancipation from the aegis of colonial rule from Madrid and Lisbon.106
Alejandro Alvarez, writing in the early part of the last century, expressed the relationship between Europe and the states of the New
World, while also revealing the racism that underpinned the project:
Europe is formed of men of a single race, the white; while Latin America is composed of a native population to which in colonial times was
added in varying proportions an admixture of the conquering race and
emigrants from the mother country, negroes imported from Africa, and
the creoles, that is those born in America but of European parents. Out
of this amalgamation of races (the aborigines, the whites, and the negroes, together with the creole element), the Latin-American continent
presented an ethnical product which was no less peculiar than its physical environment. The resultant colonial society . . . is completely sui
generis; in it the whites, born in the mother country, although in the
minority, exercised the control and guided a multitude which was in
great part illiterate and ignorant.107
time of colonization, remain unconvincing in light of the intent of the drafters. See generally THE VIENNA CONVENTION ON THE LAW OF TREATIES: TRAVAUX PRÉPARATOIRES 361–
69 (1978).
103. See generally BEATRIZ PASTOR BODMER, THE ARMATURE OF CONQUEST: SPANISH
ACCOUNTS OF THE DISCOVERY OF AMERICA 1492–1589 (Lydia Longstreth Hunt trans.,
Stanford Univ. Press 1992) (1983).
104. See CARLOS A. PARODI, THE POLITICS OF SOUTH AMERICAN BOUNDARIES 5–8
(2002) (outlining the genesis of the application of the doctrine to the Americas).
105. See Bartoš, supra note 35, at 39. See generally COLEMAN PHILLIPSON, 1 THE
INTERNATIONAL LAW AND CUSTOM OF ANCIENT GREECE AND ROME 69–72 (1911) (explaining jus civile and jus gentium).
106. See generally MARIANO PICÓN-SALAS, A CULTURAL HISTORY OF SPANISH
AMERICA FROM CONQUEST TO INDEPENDENCE (Irving A. Leonard trans., Univ. of Cal.
1962) (1944).
107. Alejandro Alvarez, Latin America and International Law, 3 AM. J. INT’L L. 269,
271 (1909) (reflecting the prevalent attitudes of the time).
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Nearly one hundred years later, the fault lines identified by Alvarez
persist in the form of “preferential hiring and credit practices, racial profiling by law enforcement agencies and insufficient allocation of government resources in the public sector.”108 With some important token
exceptions in Brazil, Cuba, and Venezuela, the indigenous and AfricanAmerican populations make up the poorest strata of the region’s national
societies.109 These populations grapple with limited access to key socioeconomic rights, such as education, health, and employment.110 AfricanAmerican populations are additionally disadvantaged because many
emerging states fail to recognize them as distinct minorities.111
108. See MAURICE BRYN, MINORITY RIGHTS GROUP INT’L, STATE OF THE WORLD’S
MINORITIES 2007: EVENTS OF 2006, at 62 (2007).
109. See id. This is consistently recorded in state reports that are submitted to the
Committee on the Elimination of Racial Discrimination (“CERD”) and the Human Rights
Committee (“HRC”). See U.N. Comm. On the Elmination of Racial Discrimination
[CERD], Eighteenth Periodic Reports of States Parties Due in 2004: Venezuela, U.N.
Doc. CERD/C/476/Add.4 (Oct. 7, 2004) (regarding Venezuela); U.N. CERD, Seventeenth Periodic Reports of States Parties Due in 2002: Brazil, U.N. Doc.
CERD/C/431/Add.8 (Oct. 16, 2003) (regarding Brazil); U.N. CERD, Thirteenth Periodic
Report of States Parties Due in 1997: Cuba, U.N. Doc. CERD/C/319/Add.4 (Oct. 7,
1997) (regarding Cuba). See also U.N. CERD, Concluding Observations of the Committee for the Elimination of Racial Discrimination: Venezuela, U.N. Doc.
CERD/C/VEN/CO/18 (Mar. 27, 2007); U.N. CERD, Concluding Observations of the
Committee for the Elimination of Racial Discrimination: Brazil, U.N. Doc.
CERD/C/64/CO/2 (Apr. 28, 2004) (reiterating CERD’s concern as expressed in its previous concluding observations of “the persistence of deep structural inequalities affecting
black and mestizo communities and indigenous peoples”); U.N. CERD, Concluding Observations of the Committee for the Elimination of Racial Discrimination: Cuba, U.N.
Doc. CERD/C/304/Add.60 (Feb. 10, 1999).
110. See BRYN, supra note 108, at 62.
111. See id. at 63 (“[T]his is essentially a reflection of their de facto invisibility as a
population group.”). None of the national constitutions of Bolivia, Brazil, Mexico, Peru,
Venezuela, Argentina, Chile, and Paraguay recognize African descendants living in
America as distinct cultural groups. See id. Interestingly, the indigenous autonomous
regime in Oaxaca, Mexico is one of the first to provide such recognition for the community, officially recognizing Afro-Mexicans as a distinct group. See generally Alejandro
Anaya-Muñoz, Multicultural Legislation and Indigenous Autonomy in Oaxaxa, Mexico,
in INTERNATIONAL LAW AND INDIGENOUS PEOPLES 225 (Joshua Castellino & Niamh
Walsh eds., 2005).
More recently, advocacy groups have made a concerted effort to push for such
recognition, and there has been increased political participation. African-American
groups are beginning to exert some pressure on governments to remedy the lack of recognition in Venezuela, Bolivia, Costa Rica, Ecuador, Honduras, and Peru. See BRYN,
supra note 108, at 63. In 2002, Brazil appointed four Afro-Brazilian national ministers.
Id. In 2004, three Afro-Peruvians were elected to the Congress of Peru. In 2005, Suriname voters elected eight Afro-descendant Maroon representatives, including three cabi-
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European entry into South America was facilitated by the expanded
understanding of terra nullius characteristic of the colonial era, which
was premised on the notion that the indigenous peoples inhabiting the
continent were not socially and politically organized.112 However, in
their attempted emancipation from European influence, the Creoles
formed an intellectual élite.113 The Creoles who struggled for the right to
self-determination relied on their European values and education, and
were inspired by eighteenth century philosophical writings.114 This élite
mobilized and took advantage of the setbacks to Spain in its bid for independence in the Napoleonic Wars.115 In asserting and achieving their independence, the new Creole élite maintained that their actions were a
natural consequence of their individual liberty, giving them the right to
form sovereign states.116 This “right” was distinguished from a struggle
for civil liberties; in their eyes, the struggle was instead an act of international war.117
The Creole action does not really fit within the theoretical modes of
acquisition described in the previous section. Rather, it could be argued
that the Creole emancipation of South American territories was constituted under the norm of freedom from subjugation. No new territory was
acquired; it was merely the ousting of a previous regime by its subjects.118 The international law precedent was captured in jus resistendi ac
net positions. Id. Afro-Ecuadorians have also gained more visibility in Ecuadorian politics. Id.
However, the risk of racial profiling remains high. Id. at 65–66. Moreover, there
is significant incarceration of African-American populations across the region, id., and
incarcerated African-Americans are at higher risk of torture. See, e.g., id. (discussing a
U.N. Special Rapporteur’s report on torture in Brazilian prisons). See also U.N.
ECOSOC, Comm’n on Hum. Rts., Civil and Political Rights, Including the Questions of
Torture and Detention, U.N. Doc. E/CN.4/2001/66/Add.2 (Mar. 30, 2001) (prepared by
Nigel S. Rodley). Furthermore, African-Americans are often more affected in times of
conflict than the rest of the population. See, e.g., id. at 66–67 (explaining the effects of
conflict in Colombia, Guyana, Trinidad, the Dominican Republic, and the Bahamas).
112. See, e.g., Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16). See also
CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A TEMPORAL
ANALYSIS, supra note 31, at 66–67; supra notes 37–38 and accompanying text.
113. See MARK A. BURKHOLDER & LYMAN L. JOHNSON, COLONIAL LATIN AMERICA 196
(3d ed. 1998).
114. See generally id. at 195–98 (discussing the Creole motivations).
115. See D.A. BRADING, CLASSICAL REPUBLICANISM AND CREOLE PATRIOTISM: SIMÓN
BOLÍVAR (1783–1830) AND THE SPANISH AMERICAN REVOLUTION 1 (1983).
116. See Alvarez, supra note 107, at 274–75.
117. See id.
118. See generally PARODI, supra note 104 (outlining how the Creoles saw the need to
create boundaries as a crucial part of the ousting of the old regime and the ushering in of
the new).
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secessionis, i.e., the right of resistance and the right of secession.119
While it is questionable whether this principle provides an adequate basis
for the Creole action, the Creole action must nevertheless be distinguished from the French Revolution, from which the Creoles drew inspiration.120 While the French Revolution was a struggle to establish liberté,
égalite, fraternité among all French subjects,121 Latin American decolonization should be viewed as a triumph of territoriality over identity.122
Further, this model of self-determination—rather than the French or
American Revolutions, which are often touted as precursors of modern
self-determination—truly became the modus operandi of modern decolonization.123
The doctrine of uti possidetis juris and the principle of terra nullius
were invoked following the Creole emancipation as the newly emerging
regimes sought to consolidate the territory within their jurisdiction, while
sending out a clear message against reconquista.124 The Creoles worked
together to create a strong legal buttress against further European interest
on the continent, despite two fundamental challenges: (1) the difficulty
of boundary demarcation between the emerging states (the intracontinental threat to territory); and (2) the threat that parts of the territory that
were not effectively occupied by the new sovereigns could fall prey to
119. See NEUBERGER, supra note 25, at 4 (regarding jus resistendi ac secessionis).
120. See generally Alvarez, supra note 107, at 274–75 (discussing the Creole action).
121. See Joshua Castellino, Liberty, Fraternity and Equality: The Dubious Fruits of
“National” Self-Determination in International Law, 1 TURKU L.J. 1 (1999) (discussing
the relationship between the French Revolution and the international notion of selfdetermination). See generally EDMUND BURKE, FURTHER REFLECTIONS ON THE
REVOLUTION IN FRANCE (Daniel E. Ritchie ed., 1992) (illustrating the guiding spirit of the
French Revolution); Charles Tilly, Revolutions and Collective Violence, in 3 HAND BOOK
OF POLITICAL SCIENCE, METROPOLITICAL POLITICAL THEORY 483 (Fred I. Greenstein &
Nelson W. Polsby eds., 1975) (discussing what constitutes a revolution).
122. In the U.N. decolonization process, the closest triumph would be the attempt by
the Ian Smith regime in Southern Rhodesia (precursor to the modern Zimbabwe) to seize
power from the British. See also In re Southern Rhodesia [1919] A.C. 211 (P.C. 1918).
The English Court of Appeals’ application of terra nullius to indigenous peoples was
based on the notion of native peoples that were “so low in the scale of social organization” that “it would be idle to impute to such people some shadow of the rights known to
our law and then to transmute it into the substance of transferable rights of property as we
know them.” Id. at 234–34.
123. See generally A. RIGO SUREDA, THE EVOLUTION OF THE RIGHT TO SELFDETERMINATION: A STUDY OF THE UNITED NATIONS PRACTICE (1973).
124. That is, against being colonized again. See Alvarez, supra note 107, at 290, 310–
12.
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external interest and conquest (or the intercontinental threat to territory).125
A. The Doctrine of Uti Possidetis Juris: A Sword Against IntraContinental Territorial Rivalries
In response to the first challenge, the newly emerging states sought to
demarcate geographical boundaries within their constitutions, so they
could rely on codified law in any subsequent challenge.126 Through this
process, it was believed that title could be extended to parts of the state
that may or may not have been under effective control, but were believed
to be integral to the new state. Fully aware that territorial disputes were
likely to arise, the newly emerging states also attempted to create genuine cooperation among the new community of states in the form of regional defense and cooperation pacts.127
The adoption of the doctrine of uti possidetis juris was fundamental to
these agreements in terms of understanding the territorial regimes that
were inherited by the new sovereigns.128 The Creole adoption of the doc-
125. See id.
126. See BURKHOLDER & JOHNSON, supra note 113, at 315–39 (detailing how this codification manifests itself in the context of each of the emerging states).
127. See, e.g., Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 IC.J. 351, 357 (Sept. 11) (discussing the Constitution of El Salvador 1981);
Charles G. Fenwick, The Third Meeting of Ministers of Foreign Affairs at Rio de Janeiro,
36 AM. J. INT’L L. 169, 183 (1942) (“[T]he Meeting of Foreign Ministers had been called
primarily with the object of discussing practical measures to be taken for continental
defense.”); Josef L. Kunz, Guatemala vs. Great Britain: In re Belice, 40 AM. J. INT’L L.
383 (1946) (discussing a treaty that established the frontiers between British Honduras
and Guatemala in 1859); The First Pan-American Scientific Congress, 2 AM. POL. SCI.
REV. 441, 442 (1908) (identifying territorial boundaries as one theme of the congress);
William Manger, The Pan American Union at the Sixth International Conference of
American States, 22 AM. J. INT’L L. 764 (1928).
128. The interim nature of this co-operation is particularly visible in the recent volume
of cases concerning territoriality and contested boundary delimitations in the context of
South America. See Territorial and Maritime Dispute (Nicar. v. Colom.) (Dec. 13, 2007),
available at http://www.icj-cij.org/docket/files/124/14305.pdf; Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.) (Oct. 8,
2007), available at http://www.icj-cij.org/docket/files/120/14075.pdf (last visited Feb. 5,
2008); Dispute Regarding Navigational and Related Rights of Costa Rica on the San Juan
River (Costa Rica v. Nicar.) (Application Instituting Proceedings) (Sept. 29, 2005),
available at http://www.icj-cij.org/docket/files/133/8268.pdf (last visited Feb. 5, 2008);
Application for Revision of the Judgment of 11 September 1992 in the Case Concerning
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El. Sal. v. Hond.), 2002 I.C.J. 392 (Dec. 18); Land, Island and Maritime Frontier
Dispute (El Sal./Hond.: Nicar. intervening), 1992 IC.J. 351 (Sept. 11); Arbitral Award
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trine of uti possidetis juris in terms of international property resolved
issues of jus gentium by recourse to a norm developed in jus civile that
sought to arbitrate between individuals.129 Thus, the notion of national
territory was reduced to the realm of a contest between two individuals to
private property. In a further misinterpretation of the original doctrine,
the distinction between uti possidetis de jure and uti possidetis de facto
was lost.130 Under jus civile, disputed property was considered to be in
the incumbent’s de facto possession while a determination of the de jure
claim to that property’s title was undertaken.131 Thus, uti possidetis de
facto merely recognized the incumbent’s actual possession of the property, which may or may not have been later deemed uti possidetis de
jure, depending on the resolution of the dispute. Thus, uti possidetis de
facto was merely a position in abeyance of the Roman praetor’s final
decision.132
The Creole adoption of the doctrine of uti possidetis juris, however,
did not contain such a nuanced interpretation. Rather, it treated the territory within the inherited boundaries as being within the de facto, as well
as de jure, possession of the new incumbent. In so doing, the doctrine
established the all-important notion of the “critical date,”133 which became the cut-off point that crystallized possession of a territory and determined the identity of its de jure possessor.134 The critical date has beMade by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 I.C.J. 192
(Nov. 18).
Cases over claims to the Antarctic by South American states, while not directly
relevant, nonetheless show the extent to which these states envision the notion of territoriality. See Antarctica (U.K. v. Chile) (Application Instituting Proceedings) (Mar. 16,
1956), available at http://www.icj-cij.org/docket/files/27/10783.pdf (last visited Feb. 5,
2008); Antarctica (U.K. v. Arg.) (Application Instituting Proceedings) (May 4, 1955),
available at http://www.icj-cij.org/docket/files/26/9065.pdf (last visited Feb. 5, 2008).
It is instructive to note that in each of the cases, the parties either explicitly or
implicitly accepted the importance of the uti possidetis juris line. Indeed, it could be argued that the entrenchment of the doctrinal package in modern jurisprudence concerning
territoriality derives from this large-scale acceptance of the application of the doctrine in
times of transition.
129. See generally CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL
LAW: A TEMPORAL ANALYSIS, supra note 31, at 29–89 (discussing Roman property regimes and the Creole action in Latin America).
130. See Shaw, The Heritage of States: The Principle of Uti Possidetis Juris Today,
supra note 22, at 100.
131. Ratner, supra note 22, at 592–93.
132. See Castellino & Allen, The Doctrine of Uti Possidetis: Crystallization of Modern
Post-Colonial Identity, supra note 27, at 209.
133. For an early articulation of this principle, see L.F.E. Goldie, The Critical Date, 12
INT’L & COMP. L.Q. 1251 (1963).
134. Frontier Dispute (Burk. Faso v. Mali), 1996 I.C.J. 554, 586–87 (Dec. 22).
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come a central feature in territorial disputes between states, and its modern interpretation follows the line first articulated by Judge Huber in Island of Palmas (or Miangas) (United States v. Netherlands)135 nearly a
century after its first use in Latin American decolonization:
If a dispute arises as to the sovereignty over a portion of territory, it is
customary to examine which of the States claiming sovereignty possesses a title—cession, conquest, occupation, etc.—superior to that
which the other State might possibly bring forward against it. However,
if the contestation is based on the fact that the other Party has actually
displayed sovereignty, it cannot be sufficient to establish the title by
which territorial sovereignty was validly acquired at a certain moment;
it must also be shown that the territorial sovereignty has continued to
exist and did exist at the moment which for the decision of the dispute
must be considered as critical.136
When read in conjunction with the critical date—determined in the case
of the Creole emancipation as the departure of the colonial ruler—the de
jure title to the new territories was handed over to the new incumbents
based on the administrative lines drawn by the departing colonial regimes. The new sovereign exercised sovereignty over the territory, and
the claim of any aspirant sovereign was dismissed as being disruptive of
the peace.137 This constituted a clear deviation from the Roman law diktat, which merely estopped aspirant claims until they could be analyzed.138 Instead, the doctrine of uti possidetis juris is more akin to the
children’s playground justice of “finder’s keepers,”139 or its more sophisticated legal sobriquet, “possession is nine-tenths of the law.”140
The interpretation of the doctrine of uti possidetis juris in its current
guise offers the international community a useful bulwark for the protection of order.141 The ICJ and other judicial bodies142 have consistently
135. Island of Palmas (or Miangas) (U.S. v. Neth.), 2 R. Int’l Arb. Awards 829 (Perm.
Ct. Arb. 1928).
136. Id. at 839. See also Legal Status of the South-Eastern Territory of Greenland Case
(Nor. v. Den.), 1932 P.C.I.J. (ser. A/B) No. 53 (Aug. 3) (an early interpretation illustrating the ICJ’s subsequent articulation of the idea).
137. See JOSHUA CASTELLINO & STEVE ALLEN, TITLE TO TERRITORY IN INTERNATIONAL
LAW: A TEMPORAL ANALYSIS, supra note 31, at 10.
138. See id.
139. See Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722) (the leading case on the
“finder’s keepers” rule).
140. See generally CHARLES C. CALLAHAN, ADVERSE POSSESSION (1961); Henry W.
Ballantine, Title by Adverse Possession, 32 HARV. L. REV. 135 (1919).
141. See BULL, supra note 2, at 4. Bull defines order as an arrangement of life that
promotes given goals and values. Three goals essential to order are: (1) security against
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used the doctrine in cases concerning territoriality. With its clear emphasis on maintaining the status quo, the doctrine of uti possidetis juris can
be used to restrict conflict and consolidate de facto positions in a moment
of transition or at the end of hostilities, even sanctifying them with the
grant of territorial sovereignty.143 The fate of territories can be judicially
determined on the grounds of physical evidence of possession at the
critical date, rather than on more complicated factors, such as contested
histories, tribal affiliations, or social cohesion within a territorial unit.144
However, the inevitable result is that the critical date, usually an arbitrary point based on when the colonial ruler departed, becomes the determining factor for modern statehood,145 even though the emerging
state’s territory may have been unified by a colonial power through the
belligerent use of force for a limited period of time.146 No flexibility is
violence, (2) assurance that promises are maintained, and (3) stable possession of property. See id.
142. Most notably, the Badinter Arbitration Committee was first set up to arbitrate
between the different Yugoslav Republics, but ended up as the body charged with the
dissolution of the state. See generally STEVE TERRETT, THE DISSOLUTION OF YUGOSLAVIA
AND THE BADINTER ARBITRATION COMMISSION (2000); Peter Radan, Secession and SelfDetermination: The Case of Slovenia and Croatia, 48 AUSTL. J. INT’L L. 183 (1994);
Radan, Post-Succession International Orders: A Critical Analysis of the Workings of the
Badinter Commission, supra note 21.
143. See John Agnew, Mapping Political Power Beyond State Boundaries: Territory,
Identity and Movement in World Politics, 28 MILLENNIUM J. INT’L STUD. 499 (1999). See
generally HELEN GHEBREWEBET, IDENTIFYING UNITS OF STATEHOOD AND DETERMINING
INTERNATIONAL BOUNDARIES (2006).
144. See CASTELLINO & ALLEN, TITLE TO INTERNATIONAL LAW: A TEMPORAL
ANALYSIS, supra note 31, at 119–55 (analyzing ICJ jurisprudence). See also Joshua Castellino, Territoriality and Identity in International Law: The Struggle for SelfDetermination in the Western Sahara, 28 MILLENNIUM J. INT’L STUD. 523 (1999).
145. Cf. Nuno Sérgio Marques Antunes, The Eritrea-Yemen Arbitration: First Stage—
The Law of Title to Territory Re-Averred, 48 INT’L & COMP. L.Q. 362, 363–65 (1999)
(evidencing an entity, Eritrea, that was designated as separate by a colonial ruler, and
subsequently became a separate sovereign state despite earlier history that may show
greater links between it and an adjoining state or unit).
146. See, e.g., Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 45 (Oct. 16) (exploring the veracity of this claim and the distinction between a religious versus temporal
claim that lies at the heart of the dispute). The precursor to the modern state of Morocco,
the Sherifian State, was an expansive non-territorially based state that laid claim (at least
in terms of religious Shari’a law) to much of the Maghreb. See Joshua Castellino, National Identity & the International Law of Self-Determination: The Stratification of the
Western Saharan “Self,” in ACCOMMODATING NATIONAL IDENTITY: NEW APPROACHES IN
INTERNATIONAL AND DOMESTIC LAW 257, 270–81 (Stephen Tierney ed., 2000). In any
case, under the modern norm of the human right to self-determination, it would seem that
the residents of the territory have the right to determine their political future. The difficulty inevitably lies in understanding who the eligible constituents are.
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attached to the critical date; if the critical date could be challenged, there
would be disagreements as to the importance of particular events, dates,
and ultimately the fate of the territory.147 Permitting such challenges runs
the risk of opening up a continuously available process, which could act
as an incentive to legitimize the use of force and subsequent occupation.
Thus, the doctrine of uti possidetis juris, in conjunction with a restricted
determination of a critical date, has ultimately yielded a process that is
believed by international jurists to support the necessary preconditions
for order.148
The salient effect of the doctrine of uti possidetis juris is best captured
in the ICJ’s opinion in Frontier Dispute (Burkina Faso v. Mali):
[T]he essence of the principle lies in its primary aim of securing respect
for the territorial boundaries at the moment when independence is
achieved. Such territorial boundaries may be no more than delimitations between different administrative divisions or colonies all subject
to the same sovereign. In that case, the application of the principle of
uti possidetis resulted in administrative boundaries being transformed
into international frontiers in the full sense of the term.149
The single point in time at which this boundary was framed assumed
grave importance, since no subsequent change would be recognized
unless it had the consent of the incumbent powers.150 Nevertheless, all
boundaries are constructed, and are in some sense artificial.151 Consequently, one approach to resolving the legitimacy of territorial boundaries would be to examine the manner in which some of these critical
dates were decided, and to test their validity vis-à-vis, for example, the
patently unequal acquisitory treaties between the colonizer and the indigenous community.152 However, any attempt to redress and question
these notions comes up against the intertemporal rule of law.
147. See, e.g., Kathleen Cavanaugh, Rewriting Law: The Case of Israel and the Occupied Territories, in NEW LAWS, NEW WARS? APPLYING THE LAWS OF WAR IN 21ST
CENTURY CONFLICTS 227 (David Wippman & Matthew Evangelista eds., 2005) (explaining that the discussion around conflict can in and of itself become the biggest obstacle for
its resolution).
148. See infra Part IV. See generally BODMER, supra note 103 (regarding the Spanish
conquest in the Americas); PICÓN-SALAS, supra note 106, at 27–42.
149. Frontier Dispute (Burk. Faso v. Mali), 1996 I.C.J. 554, 566 (Dec. 22).
150. Ratner, supra note 22, at 608.
151. S. WHITTEMORE BOGGS, INTERNATIONAL BOUNDARIES: A STUDY OF BOUNDARY
FUNCTIONS AND PROBLEMS 74–93 (1940) (discussing South American boundaries). See
also Reeves, supra note 42, at 541–45.
152. See Alexandrowicz, The Role of Treaties in the European-African Confrontation
in the Nineteenth Century, supra note 39.
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Thus, the doctrinal tools governing title to territory—terra nullius and
uti possidetis juris—on their face have significant merit. The justification
for uti possidetis juris, for instance, is easy to see, especially in the context of the return to peace after cessation of hostilities and in the importance it gives to the consent of the disputing parties to a settlement that
deviates from the status quo. While there is little doubt that such consent
involves difficult negotiations, it is certainly preferable that such negotiations do take place, rather than resolutions through force. Crucially, in
the context of indigenous peoples’ land rights, had the doctrine of uti
possidetis juris functioned effectively from the start, indigenous land
rights would have been adequately protected. The granting of de facto
possessory rights to existing territory holders would have precluded annexation by colonial powers and would have seen legitimacy properly
ascribed to existing populations, in denial of terra nullius.
B. The Principle of Terra Nullius: A Shield Against Inter-Continental
Territorial Rivalry
As discussed above, the principle of terra nullius was an important
principle in jus gentium and was an important part of international law.
In the discussion among jurists about the manner in which territory could
be acquired, there was a general consensus that only terra nullius, or uninhabited territory, could be subject to acquisition.153 As was seen in the
articulation of the law governing occupation, the principle of terra nullius expanded from a doctrine denoting blank, unoccupied territory based
on the objective existence or inexistence of inhabitants upon a territory,
to a subjective analysis of the social quality of habitation that determined
whether or not a territory was considered terra nullius.
The principle that only territory considered terra nullius could be occupied failed to protect the lands of indigenous and tribal peoples from
colonial occupation. In many circumstances, this territory was acquired
through subsequent cession—using unequal and even fraudulent treaties—subjugation, and, in some instances, quasi-prescription claims.154
Arguably, all of this was animated by a racist belief that some kinds of
153. See ANDREW BORKOWSKI & PAUL DU PLESSIS, TEXTBOOK OF ROMAN LAW 182–83
(3d ed. 2005).
154. See U.N. ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Indigenous Peoples & Minorities, Indigenous Peoples and Their Relationships to the Land,
¶¶ 21–32, U.N. Doc. E/CN.4/Sub.2/2001/21 (June 11, 2001) (prepared by Erica-Irene A.
Daes).
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possession merited title-generating rights while others did not.155 Indeed,
this was plausibly the central feature underpinning the categorization of
indigenous territory as terra nullius: while peoples may have existed on
the land, the relationship they exercised towards it was insufficient to
suggest individual ownership, i.e., title-generating activity.
Terra nullius did not figure as predominantly in jurists’ discussions of
other acquisitions of colonial property outside the Creole context.156
Elsewhere, there was an assumption that the spread of Christianity,
commerce, and civilization could only benefit the peoples coming under
European subjugation.157 This is especially surprising since the Creole
resuscitation of the principle of terra nullius was achieved prior to the
second wave colonization of African and Asian territories.158 The Creole
invocation of the doctrine of terra nullius was largely in response to the
fear among the new incumbent sovereigns that parts of their newly acquired territory were not effectively occupied, and could fall prey to reconquista.159
If the doctrine of uti possidetis juris acted as a sword against territorial
claims from within the continent by other new sovereigns,160 a separate
shield was necessary to put in place a regime that would forestall any
external threat to the states in the New World. The principle of terra nul155. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 19–34 (2004)
(discussing the historical backdrop of indigenous peoples’ role in international society
and positivism in international law).
156. See generally CHARLES HENRY ALEXANDROWICZ, THE EUROPEAN-AFRICAN
CONFRONTATION 12 (1973) (highlighting the European-African confrontation); ERIC
AXELSON, PORTUGAL AND THE SCRAMBLE FOR AFRICA 1875–1891 (1967) (emphasizing
the Portuguese role in colonization of Africa); J.C. ANENE, SOUTHERN NIGERIA IN
TRANSITION (1966) (revealing the extent to which the boundaries cut across pre-existing
communities); J.C. ANENE, THE INTERNATIONAL BOUNDARIES OF NIGERIA 1885–1960
(1970); S.E. CROWE, BERLIN WEST AFRICAN CONFERENCE 1884–1885 (Negro Univ. Press
1970) (1942) (for an insight into the proceedings and discussions on territory and identity); A.O. CUKWURAH, THE SETTLEMENT OF BOUNDARY DISPUTES IN INTERNATIONAL
LAW (1967); PARTITIONED AFRICANS: ETHNIC RELATIONS ACROSS AFRICA’S
INTERNATIONAL BOUNDARIES 1884–1984, supra note 40 (illustrating the impact of the
colonial boundaries on African national identities); Simeon E. Baldwin, The International
Congresses and Conferences of the Last Century as Forces Working Toward the Solidarity of the World, 1 AM. J. INT’L L. 565 (1907); Victoria Brittain, Colonialism and the
Predatory State in the Congo, 236 NEW LEFT REV. 133 (1999) (highlighting the nature of
the state).
157. See BASIL DAVIDSON, THE BLACK MAN’S BURDEN: AFRICA AND THE CURSE OF THE
NATION-STATE 11–12, 25–38 (1992).
158. See generally RUPERT EMERSON, FROM EMPIRE TO NATION: THE RISE TO SELF
ASSERTION OF ASIAN AND AFRICAN PEOPLES (4th ed. 1967).
159. See Alvarez, supra note 107, at 277–78.
160. See supra Part III.A.
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lius became a reliable ally in this quest.161 While not new to modern public international law, the principle had fallen into relative abeyance as
colonial powers determined the geographic extent to which they wished
their political sphere of influence to spread.162 Elsewhere, new sovereigns simply took action to achieve this, without recourse to the principle
of terra nullius.163 While many occupations were achieved ostensibly
through treaties of cession,164 the fraudulent manner of their agreement
and subsequent “validation” was unlikely to pass muster if challenged in
domestic courts.165 Fortunately for the imperial powers, most domestic
courts of colonial powers simply did not exercise jurisdiction over activities that occurred in other parts of the realm, and consequently, concerted
legal challenges did not really materialize.166 In this way, law became
subservient to the political interests of colonial powers, and fueled the
intense competition for territories without regard for indigenous peoples.167
This expanded interpretation of terra nullius assisted colonial expansion, and brought within its scope vast swathes of inhabited territory.168
In one sense, it was ostensibly the “failure” of incumbents to organize
themselves into recognizable political units to the imperial powers’ satisfaction that justified the occupation and acquisition of territories. This
creative interpretation fueled competition among the imperial powers and
led to a distasteful episode of history referred to euphemistically as the
“Scramble for Africa,”169 which was instigated by King Leopold of Bel-
161. See Jörg Fisch, Africa as Terra Nullius: The Berlin Conference and International
Law, in BISMARCK, EUROPE, AND AFRICA 347 (Sig Förster, Wolfgang J. Mommsen &
Ronald Robinson eds., 1988).
162. See CROWE, supra note 156, at 11–91.
163. See generally id.
164. See OPPENHEIM’S INTERNATIONAL LAW, PEACE, supra note 74, at 679–86.
165. See generally IAN BROWNLIE, TREATIES AND INDIGENOUS PEOPLES (1992).
166. See generally LAND RIGHTS, ETHNO-NATIONALITY AND SOVEREIGNTY IN HISTORY
(Stanley L. Engerman & Jacob Metzer eds., 2004).
167. See Brian Taylor Sumner, Territorial Disputes at the International Court of Justice, 53 DUKE L.J. 1779 (2004) (highlighting the considerations that the ICJ took into
account while revealing the extent to which the issue of indigenous peoples—more specifically the identity of the peoples—was not a significant factor). Of the eight factors
isolated, only one—culture—could be said to be directly attributable to group identity.
See id.
168. See KORMAN, supra note 54, at 1–93.
169. See generally AXELSON, supra note 156; THE SCRAMBLE FOR AFRICA:
DOCUMENTS ON THE BERLIN WEST AFRICAN CONFERENCE AND RELATED SUBJECTS
1884/1885, supra note 95; THOMAS PAKENHAM, THE SCRAMBLE FOR AFRICA (1991).
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gium’s quest for personal property170 in the heart of Africa.171 In the
process, territories inhabited by non-European peoples became vulnerable in law to occupation and annexation.172
The process just described was slightly different in Latin American
states, however, since the Creole interpretation of terra nullius declared
that all American territory was considered occupied territory, and the
incumbent sovereigns exercised effective control over the lands and
populations of the continent, north and south.173 This declaration concerning American territory made important points that effectively undermined the international perception of terra nullius.174
First, the announcement implied effective control of all territory within
the continent, even though there were vast swathes of territory inhabited
by peoples unaware of any change in sovereignty.175 These “non-contact”
populations were never asked for their consent, were never subjugated,
and certainly did not bear any allegiance to the newly proclaimed sovereigns exercising power in their name.176 The new sovereigns claimed to
be the sovereign occupiers of territories without effectively demonstrating the two essential elements—namely, possession and administration—
that would cement the occupation, and thereby, title.177
Second, the Creole declaration of independence, while based on notions of individual liberty and ideals from the Enlightenment,178 never170. See Mumbanza Mwa Bawele, Afro-European Relations in the Western Congo
Basin c. 1884–1885, in BISMARCK, EUROPE, AND AFRICA 469 (Sig Förster, Wolfgang J.
Mommsen & Ronald Robinson eds., 1988).
171. This is captured in the classical literary text, JOSEPH CONRAD, HEART OF
DARKNESS (Alfred A. Knopf 1993) (1902).
172. See MARC FERRO, COLONIZATION: A GLOBAL HISTORY 104–62, 186–210 (1997)
(illustrating the vulnerability of non-European society to European colonization and discussing the “vision of the vanquished”). See also WILLIAM B. COHEN, THE FRENCH
ENCOUNTER WITH AFRICANS: WHITE RESPONSE TO BLACKS, 1530–1880 (1980) (addressing the particular issues that arose in the context of French colonization); ROBERT J.
MILLER, NATIVE AMERICA, DISCOVERED AND CONQUERED: THOMAS JEFFERSON, LEWIS &
CLARK, AND MANIFEST DESTINY (2006) (discussing the vulnerability of Native American
property in the United States).
173. See Manger, supra note 127.
174. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 57–89 (alluding to the post facto impact of the
declaration); Alvarez, supra note 107, at 311.
175. See Moore & Lemos, supra note 93; Rodrigues, supra note 93.
176. See supra note 175. See generally Charles E. Hughes, Observations on the Monroe Doctrine, 17 AM. J. INT’L L. 611 (1923).
177. For a similar discussion vis-à-vis African states, see Jackson, supra note 93.
178. See PICÓN-SALAS, supra note 106 (capturing the inspiration that motivated the
Creole action). It is interesting to note that the failure to consult indigenous peoples was
not seen as particularly relevant in historic works. See DANA G. MUNRO, THE FIVE
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theless applied these values selectively, excluding indigenous peoples
who were the original possessors of the territories and African-American
populations who were moved to the territories as chattel during the slave
trade.179 In contrast to the Creole action, the decolonization of Africa a
century and a half later resulted in new states that were formed with secure boundaries drawn by the previous administration’s domestic laws,180
which emphasized state building and internal consolidation of existing
territory.181 The prime rationale for this was the maintenance of order
within the continent.182 Although states in South America continued to
nurse territorial grievances against each other,183 the grievances were
premised on disagreements concerning boundary demarcations, unlike
the more substantive disagreements typically contested in boundary disputes in contemporary Africa.184
The general impact of the principle of terra nullius has already been
discussed in various legal fora.185 Like the doctrine of uti possidetis juris,
the principle of terra nullius was originally not only unproblematic, but
also contained more than a modicum of respect for existing populations.186 If a territory was unoccupied, it was conceivably open to claims.
REPUBLICS OF CENTRAL AMERICA: THEIR POLITICAL AND ECONOMIC DEVELOPMENT AND
THEIR RELATION WITH THE UNITED STATES (David Kinley ed., 1918) (providing a succinct
analysis of the background to the emergence of the Five Republics but not discussing the
issue of consulting indigenous peoples in their formation).
179. See generally HUGH THOMAS, THE SLAVE TRADE: THE HISTORY OF THE ATLANTIC
SLAVE TRADE 1440–1870 (1997).
180. See generally MARTIN MEREDITH, THE FATE OF AFRICA: FROM THE HOPES OF
FREEDOM TO THE HEART OF DESPAIR (2005) (providing a poignant analysis of each African state’s transition of colonialism).
181. See Rupert Emerson, Nation-Building in Africa, in NATION BUILDING 95 (Karl W.
Deutsch & William J. Foltz eds., 1963).
182. See generally supra note 141 (defining order).
183. See cases cited supra note 128. See generally COMMENTARIES ON WORLD COURT
DECISIONS (1987–1996) (Peter H.F. Bekker ed., 1998).
184. See, e.g., Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. 1045 (Dec. 13)
(discussing issues concerning the types of occupation and title-generating rights, rather
than purely adjudicating on a boundary dispute, in the African context); Territorial Dispute (Libya/Chad), 1994 I.C.J. 6 (Feb. 3) (discussing issues concerning the types of occupation and title-generating rights, rather than purely adjudicating a boundary dispute, in
the African context); Edward Douglas White, In the Matter of the Arbitration of the
Boundary Dispute Between the Republics of Costa Rica & Panama Provided for by the
Convention Between Costa Rica and Panama of March 17, 1910, 8 AM. J. INT’L L. 913
(1914) (explaining the boundary controversy between Costa Rica and Panama). It could
also be argued that the Advisory Opinion in the Western Sahara Case was also classically
in this vein. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 83–102 (Oct. 16).
185. See, e.g., supra note 85.
186. See Moore, supra note 28, at 328–30.
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Claims to such territory could be established through a process of continued occupation, akin to adverse possession,187 while in other systems,
claims could be lodged through a process of formal accession of title
deeds.188 In either situation, accession of property that was bereft of
owners was understood as legitimate, in keeping with the large-scale migration of peoples that are significant to human history.189
The corruption of the principle of terra nullius lies in its interpretation,
which was already discernible in its original manifestation in jus civile.
As captured effectively by Judge Ammoun in his dissenting opinion in
the Western Sahara Case, the doctrine of terra nullius was first interpreted to render all non-Roman territory terra nullius, thus implying that
only Roman law could create legitimacy and title bearing rights.190 This
was modified in the nineteenth century, when tribes considered uncivilized were not recognized, and as such, the land on which they subsisted
was considered terra nullius despite their presence.191 The paradigmatic
example of this phenomenon is the imperial powers’ naked aggression in
their quest for territory in Africa, and their treatment of indigenous peoples’ territory.192 The ramifications of this aggression are central to an
effective settlement that would protect the rights of indigenous peoples
while also ensuring the competing rights of non-indigenous peoples.193
187. See Ballantine, supra note 140. See also JAMES B. AMES, LECTURES ON LEGAL
HISTORY (1913) (manifesting the doctrine of adverse possession in English municipal
law); FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, 2 THE HISTORY OF ENGLISH
LAW 29–80 (2d ed. 1898) (discussing the history of seisin).
188. See generally LAND LAW: ISSUES, DEBATES, POLICY (Louise Tee ed., 2002).
189. See generally PROPERTY RIGHTS: COOPERATION, CONFLICT, AND LAW (Terry Lee
Anderson & Fred S. McChesney eds., 2003).
190. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 83–87 (Oct. 16) (separate
opinion of Judge Ammoun).
191. See id.
192. See J.D. Hargreaves, The Making of the Boundaries: Focus on West Africa, in
PARTITIONED AFRICANS: ETHNIC RELATIONS ACROSS AFRICA’S INTERNATIONAL
BOUNDARIES 1884–1984, at 19 (A.I. Asiwaju ed., 1985) (providing a rich analysis of the
extent to which boundary regimes were constructed without the consent of the indigenous
people who were already the occupants of the territory). See generally 1 COLONIALISM IN
AFRICA 1870–1960 (L.H. Gann & Peter Duignan eds., 1969) (discussing the principles
and actions during the period in question); John Flint, Chartered Companies and the
Transition from Informal Sway to Colonial Rule in Africa, in BISMARCK, EUROPE, AND
AFRICA 69 (Sig Förster, Wolfgang J. Mommsen & Ronald Robinson eds., 1988) (pointing
to the commercial aspect under which such appropriation occurred).
193. See S. James Anaya & Robert A. Williams, Jr., The Protection of Indigenous
Peoples’ Rights Over Lands and Natural Resources Under the Inter-American Human
Rights System, 14 HARV. HUM. RTS. J. 33 (2001).
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IV. CHALLENGES WITHIN INTERNATIONAL LAW: ICJ JURISPRUDENCE
Having traced the manner in which the doctrines have evolved through
history, it is appropriate to highlight the extent to which the ICJ has contributed to a further clarification of the concepts. This Part reflects on the
key cases that have been addressed by the court and the specific nuances
of these broad doctrines. Specifically, this Part comments on the manner
in which the court has resolved four key issues: (1) the issue of locus
standi in terms of territorial disputes; (2) the importance of documenting
a territorial claim—specifically, a comment on the value of maps in this
process; (3) an examination of the kinds of actions that indicate titlegenerating activity; and (4) the importance of the critical date in determining the fate of a given territory. This Part concludes with an overview
of how some of these issues are raised in currently pending ICJ cases.
The modern international legal position on terra nullius is epitomized
by the judgment in the Western Sahara Case.194 Two questions were addressed to the ICJ:
I. Was Western Sahara (Rio de Oro and Saket El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)? If
the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity?195
With reference to the first question, the court determined that the Western Sahara was not terra nullius before the Spanish arrival on the
grounds that, “at the time of colonization Western Sahara was inhabited
by peoples which, if nomadic, were socially and politically organized in
tribes and chiefs competent to represent them.”196 This determination
would seem to favor the indigenous Saharan tribes in the territory; however, the court ruled—with reference to the second question—that a link
existed between these tribes and the Sherifian State, the precursor to
modern Morocco.197 King Hassan ultimately used the court’s determination to justify Moroccan occupation of the Western Sahara based on the
194.
195.
196.
197.
Western Sahara, 1975 I.C.J. 12.
Id. at 14.
Id. at 39.
Id. at 40. See CASTELLINO, INTERNATIONAL LAW AND SELF-DETERMINATION: THE
INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH FORMULATIONS OF POSTCOLONIAL “NATIONAL” IDENTITY, supra note 15, at 233–52 (discussing the merits of the
Western Sahara Case). See also Malcolm Shaw, The Western Sahara Case, 44 BRIT.
Y.B. INT’L L. 118 (1978); Thomas M. Franck, The Stealing of the Sahara, 70 AM. J. INT’L
L. 694 (1978).
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court’s latter conclusion vis-à-vis ties between the Western Sahara and
the predecessor state to Morocco.198
In the face of imperial powers seeking to nullify indigenous peoples’
inherent rights to territory, indigenous peoples and minorities with territorial claims face insurmountable limitations in accessing the ICJ, including the fact that the court can only be accessed by state parties.199 While
the cases before the ICJ have been of an interstate nature, several of them
nevertheless discuss the issues of uti possidetis juris and terra nullius in
great detail.200 In this sense, the Western Sahara Case stands out, since it
concerned the future of territory that was not in the full possession of
either of the two claimants.201 This exception is explained on the grounds
that King Hassan of Morocco sought justification for the planned Green
March into the territory.202 International courts and tribunals have faced
other cases that inevitably involve a competition for territory that is occupied de facto—though perhaps not de jure—by one sovereign state.203
In this framework, in theory the incumbent within a territory would
continue to hold title, with the opponent’s claim effectively dismissed ab
initio.204 Nevertheless, courts delve into the question of the de jure title to
198. Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 68 (Oct. 16).
199. See Statute of the International Court of Justice art. 34(1), June 26, 1945, 59 Stat.
1055, 33 U.N.T.S. 933 (“Only states may be parties in cases before the Court.”).
200. See Territorial Dispute (Libya/Chad), 1994 I.C.J. 6 (Feb. 3) (separate opinion of
Judge Ajibola); Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 IC.J. 351 (Sept. 11); Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554
(Dec. 22); India v. Pak. (Rann of Kutch), 50 I.L.R. 2 (Indo-Pak. Western Boundary Case
Trib. 1968); Dubai v. Sharjah (Ct. Arb. 1981) (dissenting opinion of Judge Bebler). See
also CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A TEMPORAL
ANALYSIS, supra note 31, at 119–55 (reviewing eight ICJ cases concerning territoriality);
CUKWURAH, supra note 156, at 190–99 (identifying cases concerning uti possidetis).
201. See Western Sahara, 1975 I.C.J. 12. See also Shaw, The Western Sahara Case,
supra note 197, at 135–39. The two claimants at the time were Morocco and Mauritania.
See id. Spain had accepted its need to decolonize, but the nomadic Saharawis were not
represented in proceedings. See id.
202. See generally TONY HODGES, WESTERN SAHARA: THE ROOTS OF A DESERT WAR
210–11 (1983) (outlining the political factors that underlay the reference of this case for
the Court’s advisory opinion).
203. Such disputes arise in connection with the physical occupation of a particular
territory without the establishment or determination of legal title. See, e.g., D.J. HARRIS,
CASES AND MATERIALS IN INTERNATIONAL LAW 109–10 (5th ed. 1998) (1973) (the situation concerning Manchukuo).
204. See Ratner, supra note 22, at 607–16 (discussing the doctrine’s practical shortcomings).
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territory.205 However, the courts inevitably focus on a historical date
when de facto occupation is deemed to have legitimized continuing territorial claims. Notwithstanding decisions taken by the Permanent Court of
International Justice (“PCIJ”)—the ICJ’s predecessor—and other tribunals, the first such dispute before the ICJ was Sovereignty over Certain
Frontier Land (Belgium v. Netherlands) Case in 1959.206 In this case, the
ICJ focused its attention on the findings of the Mixed Boundary Commission, which sought to preserve the territorial status quo.207 Taking its
lead from these findings, the ICJ set out on the premise that Belgium had
sovereignty over the territory as the de facto possessor.208 Therefore, the
court examined whether there had been any subsequent extinguishments
of these rights, which could have given rise to an effective Dutch titular
claim.209
In this context, although the concept of “title” to territory is regularly
used in international legal cases,210 it is difficult to find an adequate legal
definition for this term. Frontier Dispute (Burkina Faso v. Mali) provides the best elaboration, where rather than a definition of title, the ICJ
identified the sources of title as not restricted to documentary evidence
alone: “[T]he concept of title may also, and more generally, comprehend
both any evidence which may establish the existence of a right, and the
actual source of that right.”211
However, in the context of the right to self-determination, which may
include a territorial claim, this explanation remains inadequate. Attributing a specific value to the relationship between a community and territory is difficult. The task of adjudicating between competing claims is
next to impossible without engaging prejudices about the value of such a
determination, which impacts the result of the judgment. In addition,
from the perspective of modern claims to territory, the following salient
issues have emerged from the ICJ jurisprudence concerning ownership
and possession of contested territory.
205. See Sumner, supra note 167. Several of the eight factors identified by Sumner in
his brief note could be considered relevant to the de jure determination of a contested
territory. See id.
206. Sovereignty Over Certain Frontier Land (Belg. v. Neth.), 1959 I.C.J. 209 (June
20).
207. See id. at 214.
208. See id.
209. See id. at 222.
210. See Territorial Dispute (Libya/Chad), 1994 I.C.J. 6 (Feb. 3), reviewed by
COMMENTARIES ON WORLD COURT DECISIONS (1987–1996), supra note 183, at 173–82.
211. Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 564 (Dec. 22).
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A. Claimants to Title to Territory: Locus Standi
Although the ICJ can only examine interstate claims, it has addressed
wider questions through its advisory jurisdiction. Cases concerning title
to territory that arose in this context include the Western Sahara Case,212
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,213 and the early cases concerning Namibia—Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970)214 and International Status of South West Africa.215
While actions in Namibia and Palestine were mobilized in light of intense public scrutiny of the incumbent states,216 the dispute in the Western Sahara Case arose at the colonial ruler’s departure.217
In effect, there is little possibility that a case would be raised in the
names of indigenous peoples or other non-state claimants to territory.
Despite progress that has solidified the role of the individual in international law, interstate dispute mechanisms such as the ICJ are unable to
address claims that are not brought by state parties. Although some states
may be willing to sponsor certain territorial claims,218 the nature of the
212. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).
213. Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9). For authoritative commentary on
this case, see id. at 211 (separate opinion of Judge Higgins) and David Kretzmer, The
Advisory Opinion: The Light Treatment of International Humanitarian Law, 99 AM. J.
INT’L L. 88 (2005).
214. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory
Opinion, 1971 I.C.J. 16 (June 21). See also John Dugard, Namibia (South West Africa):
The Court’s Opinion, South Africa’s Response, and Prospects for the Future, 11 COLUM.
J. TRANSNAT’L L. 14 (1972).
215. International Status of South-West Africa, Advisory Opinion, 1949 I.C.J. 270
(Dec. 30).
216. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. at 211 (separate opinion of Judge Higgins); Legal Consequences for the States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. at 17–22; International Status of South-West Africa, 1949 I.C.J. 270. See also Kretzmer, The Advisory
Opinion: The Light Treatment of International Humanitarian Law, supra note 213 (discussing the Palestinian action); Dugard, supra note 214.
217. Western Sahara, 1975 I.C.J. 12.
218. See, e.g., MEREDITH, supra note 180, at 71–74 (discussing Algeria’s reputation in
the 1960s as a state that favored movements for self-determination by providing moral
and physical support for them). In today’s terminology, any such overt or covert support
might be described as support for terrorism. Despite the merits of a particular argument, it
seems difficult to imagine any legal challenges before the ICJ being brought under this
guise.
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process and the determination of admissibility operate to prevent many
potential claims. Thus, peoples that claim self-determination including
title to territory have no option but to seek relief from state structures. In
this context, the lesser offer of territorial autonomy is often considered a
viable option.219 However, it fails to address the issue of the claimant’s
title to territory,220 and instead offers a negotiated political settlement to
the governance of the territory.221 Two territorial claims in recent years222
that are notable for their success were nevertheless achieved through international political processes rather than law, involved much bloodshed,
and eventually resulted in a U.N.-supported plebiscite.223 In terms of indigenous peoples and other potential claimants of title to territory, the
limited option of the human rights mechanism, addressed below, forms a
watered-down and difficult option through which to judicially engage
this question at the international level.
219. See Geoff Gilbert, Autonomy and Minority Groups: A Right in International
Law?, 35 CORNELL INT’L L.J. 307 (2002); HANNUM, supra note 11; Jane Wright, Minority Groups, Autonomy, and Self-Determination, 19 OXFORD J. LEGAL STUD. 605, 606
(1999) (“[A]utonomy should be regarded as a constructive tool by which the property
aspirations of minority groups may be realized.”).
220. The status of self-determination as a right in modern international law is highly
dependent on the respective state’s political perspective. In applying self-determination to
federal states, there is even less information available than in the international domain.
The definitive case on the subject is the secession of Québec that came before the Canadian Supreme Court. Reference re Secession of Québec, [1998] 2 S.C.R. 217. Nevertheless, the court expressed concern about the safeguards necessary to protect the rights of
indigenous Canadians within Québec. See id. at 261–63 (addressing protection of minorities).
221. See generally ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELFDETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 248–62 (2004).
222. See generally EYASSU GAYIM, THE ERITREAN QUESTION: THE CONFLICT BETWEEN
THE RIGHT OF SELF-DETERMINATION AND THE INTERESTS OF STATES (1993) (explaining the
history of the struggle in Eritrea); IAN MARTIN, SELF-DETERMINATION IN EAST TIMOR:
THE UN, THE BALLOT, AND INTERNATIONAL INTERVENTION (2001) (explaining the history
of the struggle in Timor-Leste).
It could also be argued that the emergence of the state of Bangladesh was a victory for the use of superior force. See Joshua Castellino, The Secession of Bangladesh:
Setting New Standards in International Law?, 7 ASIAN Y.B. INT’L L. 83 (2000). See also
Ved P. Nanda, Self-Determination in International Law: The Tragic Tale of Two Cities—
Islamabad (West Pakistan) and Dacca (East Pakistan), 66 AM. J. INT’L L. 321 (1972)
(detailing the achievement of Bangladesh’s statehood).
223. See S.C. Res. 1246, ¶ 1, U.N. Doc. S/RES/1246 (June 11, 1999) (establishing “the
United Nations Mission in East Timor (UNAMET) to organize and conduct a popular
consultation”). See generally The Secretary General, Report of the Secretary-General on
the Question of East Timor, delivered to the Security Council and the General Assembly,
U.N. Doc. S/1999/513, A/53/951 (May 5, 1999).
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B. Documenting a Territorial Claim: The Value of Maps
The ICJ has always been reluctant to accept the strength of maps as
evidence of territorial claims. In Territorial & Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea,224 the ICJ referred to
two prior cases: Island of Palmas (or Miangas) (United States v. Netherlands)225 and Arbitral Award of the Special Boundary Panel Determining
the Frontier between Guatemala and Honduras.226 In the former, the
Permanent Court of Arbitration stressed that “[a]ny maps which do not
precisely indicate the political distribution of territories . . . clearly
marked as such, must be rejected forthwith . . . .”227 In the latter case, the
PCIJ found that maps presented by the parties provided only “slight
value,” since they did not show the extent to which administrative control was actually exercised.228
More recently, the ICJ addressed the issue of the value of maps in
Frontier Dispute (Burkina Faso v. Mali)229 and Territorial & Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea.230 In
the latter, the presentation of maps was merely seen as:
[E]ssentially serv[ing] the purpose of buttressing their respective claims
and of confirming their arguments. The Court finds that it can derive
little of legal significance from the official maps submitted and the
maps of geographical institutions cited; these maps will be treated with
a certain reserve.231
224. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), paras. 134, 214 (Oct. 8, 2007), available at http://www.icjcij.org/docket/files/120/14075.pdf (last visited Feb. 5, 2008).
225. Island of Palmas (or Miangas) (U.S. v. Neth.), 2 R. Int’l Arb. Awards 829 (Perm.
Ct. Arb. 1928).
226. Honduras Borders (Guat v. Hond.), 2 R. Int’l Arb. Awards 1309, 1322 (Special
Boundary Tribunal constituted by the Treaty of Arbitration between Guatemala and Honduras 1933).
227. Island of Palmas (or Miangas) (U.S. v. Neth.), 2 R. Int’l Arb. Awards at 852.
228. Honduras Borders, 2 R. Int’l Arb. Awards at 1325 (“[A]uthenticated maps[] are
also to be considered, although such descriptive material is of slight value when it relates
to territory of which little or nothing was known and in which it does not appear that any
administrative control was actually exercised.”)
229. See Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 582 (Dec. 22). Maps
were considered in of themselves indeterminate in constituting territorial title, or “document[s] endowed by international law with intrinsic legal force for the purpose of establishing territorial rights.” Id.
230. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.) (Oct. 8, 2007), available at http://www.icj-cij.org/docket/
files/120/14075.pdf (last visited Feb. 5, 2008).
231. Id. para. 217.
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In that case, the sovereignty over the disputed islands was extended to
Honduras based on post-colonial effectivités,232 not based on submitted
maps.233 Although parties to territorial disputes seek to demonstrate their
ownership of territory through maps, the maps have rarely been given
much credence in the rulings.
Instead, the ICJ has looked to other types of documentary evidence in
determining territorial claims, including memos and letters that seek to
demonstrate external respect for a territorial claim.234 The fact that the
ICJ has engaged such documentary evidence suggests an intrinsic belief
that externally recognized boundaries are valid constructs, even if they
were not negotiated based on internal identities. The ICJ, as an upholder
of international order, can do little more than ensure that the territorial
limits of state sovereignty continue as defined within the state’s frontiers
at a given time. The ICJ’s reliance on documentary evidence also suggests that the legal validity of a title to territory can be gauged against
objective criteria. However, in the context of colonization, this remains a
particularly problematic test since it inevitably validates both unequal
treaties between colonial powers and the colonized235 and treaties between colonial powers that have agreed to the division of territory
through “spheres of influence” politics.236 The test presupposes the question considered (whether the state exercised effective administrative control over the claimed territory) because it gives credence to memos and
correspondence written in a specific context and that recognize the legal
status of the territory’s inhabitants.237 This is especially problematic
232. Post-colonial effectivités refers to the efficacy or effectiveness of the extent to
which the post-colonial state has performed its function as a state in relation to a given
territory. See Bruno Simma & Daniel Erasmus-Khan, Peaceful Settlement of Boundary
Disputes Under the Auspices of the Organisation of African Unity and the United Nations: The Case of the Frontier Dispute between Eritrea and Ethiopia, in 2 LIBER
AMICORUM JUDGE SHIGERU ODA 1179, 1191 n.39 (Nisuke Ando, Edward McWhinney &
Rüdiger Wolfrum eds., 2002).
233. See Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicar. v. Hond.), para. 227 (Oct. 8, 2007), available at http://www.icjcij.org/docket/files/120/14075.pdf (last visited Feb. 5, 2008).
234. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 49 (Oct. 16) (demonstrating external recognition of sovereignty through treaties, diplomatic correspondence, and
letters).
235. See generally BROWNLIE, supra note 165.
236. See CROWE, supra note 156.
237. See, e.g., Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. 1045 (Dec. 13).
The ICJ was forced to examine the veracity of documents offered as interpretative evidence regarding the Anglo-German Treaty of 1890, which had established the respective
spheres of influence of the two superpowers. See id. at 1049–50. The documents examined included: (1) a 1912 report on a reconnaissance of the Chobe River, produced by the
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when the countervailing evidence derives from a matrix of different cultures and traditions, many of which were often misrepresented in cultural
anthologies.238 Inevitably, the ICJ requires the submission of evidence
before it can adjudicate a claim, and equally inevitably, the ICJ must
make a judgment call upon the value of the evidence presented.239 As a
result, the ICJ is forced to give weight to documentary evidence that may
be considered suspect under other circumstances.
C. Acts that Establish a Territorial Claim
A considerable portion of the pleadings in cases concerning title to territory is committed to establishing that effective control was exercised
over a particular territory, and that this control treated the claimed territory as part of a unified whole with the rest of the state’s territory.240 This
is particularly ironic because post-colonial claimants often insist that the
territory they inhabit was terra nullius at the time of colonization, a legal
fiction that is necessary if the succeeding title is to be considered
sound.241 The ICJ determines the issue, as it did in Territorial & Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, on
the grounds of the effectiveness of existing rule, be it colonial effectivités
or post-colonial effectivités.242
When determining the value of presented evidence, the ICJ usually
looks for a reliable piece of evidence that indicates the establishment of a
right or practice that is germane to the territorial title.243 Much of the preBechunaland Protectorate Police; (2) correspondence and an arrangement between the
Eastern Caprivi magistrate and a district commissioner in the Bechunaland Protectorate;
and (3) an agreement between Botswanan and South African authorities for the Joint
Survey of the Chobe. See id. at 1076–91.
238. See David M. Hart, The Tribe in Modern Morocco: Two Case Studies, in ARABS
AND BERBERS: FROM TRIBE TO NATION IN NORTH AFRICA 425 (Ernest Gellner & Charles
Antoine Micaud eds., 1973).
239. See JOSHUA CASTELLINO & STEVE ALLEN, TITLE TO TERRITORY IN INTERNATIONAL
LAW: A TEMPORAL ANALYSIS, supra note 31, at 150–52.
240. See id. at 119–55.
241. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16).
242. See Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicar. v. Hond.), para. 227 (Oct. 8, 2007), available at http://www.icjcij.org/docket/files/120/14075.pdf (last visited Feb. 5, 2008).
243. See Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 IC.J. 351, 363–64 (Sept. 11) (examining documents of the Spanish Crown and
the 1980 General Peace Treaty between the parties); Frontier Dispute (Burk. Faso v.
Mali), 1986 I.C.J. 554, 568, 582 (Dec. 22) (examining French colonial law and the study
of maps to determine their validity); Sovereignty over Certain Frontier Land (Belg. v.
Neth.), 1959 I.C.J. at 218 (examining the veracity of the work of the Boundary Commission). See also Castellino, National Identity & the International Law of Self-
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sented evidence is based on complicated historical events that are bitterly
contested by the parties in the first place.244 The ICJ is often ill-suited to
make such pronouncements and must instead rely on the quality and
presentation of the evidence to determine its historical veracity.245 When
examined closely, much of the parties’ documentary evidence is remarkably similar and makes for an equally compelling or problematic
basis for claiming adequate administration over a disputed territory. The
pleadings in the Western Sahara Case present a good illustration of this
problem.246 Both Morocco and Mauritania produced evidence to support
their territorial claim to the Western Sahara.247 Morocco based its claim
on its succession to the Sherifian State, which allegedly covered Morocco and the territory subsequently deemed the Spanish Sahara.248 Mauritania based its claim on a complex network of allegiances that could be
identified as part of the Bilad Shinguitti, which was argued to be the precursor to modern Mauritania.249 The court ruled on the extent to which
any links between the territory and the antecedent states gave rise to a
sustainable territorial claim.250 While the judgment reveals that it is difficult to ascertain the veracity of these claims, King Hassan ultimately read
the judgment as supporting Morocco’s territorial claim.251
Similar difficulties arose in both Frontier Dispute (Burkina Faso v.
Mali) and Territorial Dispute (Libya/Chad).252 In Frontier Dispute
(Burkina Faso v. Mali), the ICJ identified colonial effectivités as “the
conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period.”253
By articulating the principle of colonial effectivités, the ICJ established it
Determination: The Stratification of the Western Saharan “Self,” supra note 145, at 135
(discussing the Court’s examination of a diverse set of documents and practices).
244. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 151–52.
245. See HODGES, supra note 202, at 210–11. See, e.g., Territorial Dispute
(Libya/Chad), 1994 I.C.J. 6, 16 (Feb. 3); Frontier Dispute (Burk. Faso v. Mali), 1986
I.C.J. at 620–24.
246. Western Sahara, 1975 I.C.J. 12.
247. See id. at 14.
248. See id. at 40.
249. See id. at 41.
250. See id. The ICJ’s ruling would be especially important in the event Mauritania
dropped its claim, especially with a backdrop of secret negotiations between the parties in
a bid to dismember the Western Sahara. See JARAT CHOPRA, UNITED NATIONS
DETERMINATION OF THE WESTERN SAHARAN SELF (1994). See generally JOHN DAMIS,
CONFLICT IN NORTHWEST AFRICA: THE WESTERN SAHARA DISPUTE (1983).
251. See Franck, The Stealing of the Sahara, supra note 197, at 713–14.
252. Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554 (Dec. 22).
253. Id. at 586.
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as a cornerstone of the doctrine of uti possidetis juris. While colonial
effectivités fulfills the condition of effective administration over a territory,254 its real value is in showing title to territory under colonial law. It
limits the territorial jurisdiction within which a colonial power exercised
sovereignty, either in relation to another external competing sovereign or
another internal administrative sub-division of the territory.255 This territorial limitation consists of the uti possidetis juris line that was sanctified
as an international boundary when the colonial ruler departed and the
new ruler inherited the territory through succession. Thus, proof of colonial effectivités can be found when parties to a dispute come to an
agreement by consent, and international law essentially ossifies the postcolonial boundaries on an international level.256 The pleadings and judgment in Frontier Dispute (Libya/Chad) undertook a thorough engagement on this issue and its role in determining the uti possidetis juris
line.257
To prove the extent of colonial rule in Kasikili/Sedudu Island (Botswana v. Namibia), the state parties relied on a document that ostensibly
showed evidence of an administrative agreement between the colonial
authorities in charge of the Caprivi strip—the precursor to modern Namibia—and the colonial authorities in Bechunaland.258 However, the
254. See supra Part II.
255. Cf. supra note 232 (regarding post-colonial effectivités). Colonial effectivités
demonstrates, in a document, that effective control was exercised over a territory claimed
to be within the jurisdiction of the principal colonial occupier. See also supra text accompanying note 253.
256. See CASTELLINO & ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A
TEMPORAL ANALYSIS, supra note 31, at 153–55.
257. Territorial Dispute (Libya/Chad), 1994 I.C.J. 6, 16 (Feb. 3) (involving a crossborder dispute over a parcel of territory around Lake Chad, where the court engaged in a
detailed discussion on the concept of droit d’outre-mer, or French colonial law).
258. See Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. 1045, 1058 (Dec. 13).
The ICJ seems to have engaged in the rights discourse without necessarily laying down
the parameters of what it anticipates this to entail. It was equally ambiguous about the
sources of those rights. The ICJ also emphasized the presence and activities of the Masubian people and their title-generating capacities. See id. at 1045, 1093.
Similarly, in the Western Sahara Case, Morocco sought to prove its title to territory by demonstrating exercise of internal sovereignty. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16). One such issue was the appointment of caids, which was
advanced as an important factor in proving the role and influence of the Sultan over the
region. See id. at 44. While not examining the merits of either of these arguments, it is
suggested that they have their sources in religion, tradition, and culture and their different
interpretations. However, the task of determining the sources of other rights is difficult
when not all sources are as established as religion. See, e.g., id. at 83–102 (separate opinion of Judge Ammoun) (illustrating the importance of nomadism and its importance in
the Western Sahara Case). It is clear that the ICJ is willing to engage arguments with
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court did not accept the document as evidence of the adequate exercise of
colonial effectivités over the territory259 and consequently did not accept
the sovereignty claim.260
Like the doctrine of colonial éffectivites, the doctrine of uti possidetis
juris essentially applies a retrospective doctrine that is based on a specific reading of the fate of the territory at a given moment in history. Although Judge Harry Dillard’s separate opinion in the Western Sahara
Case stated that “[i]t is for the people to determine the destiny of the territory”261 and not vice versa, it was in fact the fate of the territory that
retrospectively determined the fate of the people. The ICJ’s application
of uti possidetis juris is appropriate to these cases of disputed territory
because the court has insisted that state consent is the defining standard
in determining title to the territory.262 In terms of the discussion of contemporary claims to self-determination involving a territorial element,
the extent and exclusivity of colonial effectivités truly is fundamental.
This was the underlying argument in several cases in which modern postcolonial entities sought to prove variations on uti possidetis juris lines
based on lack of colonial administration in border regions.263
Colonial effectivités is open to criticism on a number of grounds, especially in the context of indigenous rights to territory, where states have
interpreted the legal doctrine differently. Kingsbury identifies five competing conceptual structures for the perpetuation of indigenous peoples’
claims in international and comparative law.264 This discussion is ex-
regard to alternative displays of ownership, which is significant in the context of indigenous peoples’ claims to territory.
259. See Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. at 1100.
260. See id. at 1103–05. See also CASTELLINO & ALLEN, TITLE TO TERRITORY IN
INTERNATIONAL LAW: A TEMPORAL ANALYSIS, supra note 31, at 140–48.
261. Western Sahara, 1975 I.C.J. at 122 (separate opinion of Judge Dillard).
262. This is not a new theoretical point since it has always been possible to change
boundaries through the consent of the state parties. See Kaikobad, Some Observations on
the Doctrine of Continuity and Finality of Boundaries, supra note 22 (discussing boundaries and the manner in which they function); BOGGS, supra note 151 (providing an older
and more theoretical examination).
263. See, e.g., Territorial Dispute (Libya/Chad), 1994 I.C.J. 6 (Feb. 3) (questioning the
specific title-generating ability of indigenous peoples’ actions). See also CASTELLINO &
ALLEN, TITLE TO TERRITORY IN INTERNATIONAL LAW: A TEMPORAL ANALYSIS, supra note
31, at 137–40.
264. See Kingsbury, supra note 13. According to Kingsbury, these five claims could be
classified as: “(1) human rights and non-discrimination claims; (2) minority claims; (3)
self-determination claims; (4) historic sovereignty claims; and (5) claims as indigenous
peoples, including claims based on treaties or other agreements between indigenous peoples and states.” See id. at 190. But see Will Kymlicka, Theorizing Indigenous Rights, 49
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tremely helpful since it reveals the range of arguments regarding the relationship between a state’s existing legal doctrine and its application to
the rights of indigenous peoples. Weissner’s detailed study also reveals
the different approaches that exist in states’ treatment of indigenous peoples’ rights.265
D. Critical Date
Without a doubt, the most significant ramification for the future of a
territory is the snapshot266 of the territory on the critical date. The significance of the critical date in a territorial or maritime delimitation dispute
lies primarily in distinguishing between:
[A]cts performed à titre de souverain which are in principle relevant
for the purpose of assessing and validating effectivités, and those acts
occurring after such critical date, which are in general meaningless for
that purpose, having been carried out by a State which, already having
claims to assert in a legal dispute, could have taken those actions
strictly with the aim of buttressing those claims.267
Therefore, the parties’ acts after the critical date are not relevant in assessing the value of effectivités.268 In Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea, the disputants
contested two legal issues concerning the doctrine of uti possidetis juris:
U. TORONTO L.J. 281–92 (1999) (illustrating an alternative approach to indigenous peoples’ claims).
265. See Wiessner, supra note 48 (covering the domestic jurisdictions of a range of
states, including the United States, Canada, New Zealand, Australia, Brazil, and others).
266. See Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 658 (Dec. 22). The
ICJ explained:
[U]ti possidetis . . . applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as
it is; i.e., to the “photograph” of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does not
put back the hands.
Id.
267. See Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicar. v. Hond.), para. 117 (Oct. 8, 2007), available at http://www.icjcij.org/docket/files/120/14075.pdf (last visited Feb. 5, 2008).
268. See id. See also Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.), 2001 I.C.J. 575, 682 (Oct. 23) (“[The ICJ] cannot take into consideration
acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for
the purpose of improving the legal position of the Party which relies on them.”).
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(1) the extent to which the judicially-determined line269 extended to the
maritime areas and the disputed islands; and (2) the extent to which
documentary evidence established the extent of the local authorities’
control.270
On the second point, Nicaragua argued that the Spanish authorities in
Madrid had exclusive jurisdiction over the territorial sea, and therefore
the sea could not be included in the local authorities’ justifiable claims
under the doctrine of uti possidetis juris.271 While the ICJ regarded the
uti possidetis juris line as germane to territorial title and boundary delimitation at the moment of decolonization,272 regardless of whether the
boundaries were on land or sea,273 the court found it difficult to see how
uti possidetis juris could be used to determine sovereignty over the islands.274 In addressing the Nicaraguan claim, the court could only determine the disputed islands’ status during Spanish colonial rule, and the
available options were stark.275 Articulating an important linkage between terra nullius and uti possidetis juris, the court stated:
It is well established that “a key aspect of the principle [of uti possidetis
juris] is the denial of the possibility of terra nullius.” However, that dictum cannot bring within the territory of successor States islands not
shown to be subject to Spanish colonial rule, nor ipso facto render as
“attributed”, islands which have no connection with the mainland coast
concerned. Even if both Parties in this case agree that there is no question of the islands concerned being res nullius, necessary legal questions remain to be answered.276
269. See Arbitral Award Made by the King of Spain on 23 December 1906 (Hond. v.
Nicar.), 1960 I.C.J. 192, 199–200 (Nov. 18) (quoting an English translation of the
Gámez-Bonilla Treaty of 1894). Pursuant to article III of the Gámez-Bonilla Treaty, the
dispute between Honduras and Nicaragua was submitted for arbitration to King Alfonso
XIII of Spain as sole arbitrator. See id. at 200. After the award was handed down on December 23, 1906, Nicaragua challenged its validity in 1912. See id. at 203. After concerted boundary incidents with the Organization of American States mediating, the parties agreed to submit the dispute to the ICJ in 1957. See id.
270. See Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicar. v. Hond.), para. 150 (Oct. 8, 2007), available at http://www.icjcij.org/docket/files/120/14075.pdf (last visited Feb. 5, 2008).
271. See id.
272. See id. para. 151.
273. See id. para. 156.
274. See id. para. 158.
275. See id. para. 157.
276. See Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicar. v. Hond.), para. 157 (Oct. 8, 2007), available at http://www.icjcij.org/docket/files/120/14075.pdf (last visited Feb. 5, 2008) (internal citation omitted).
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In this sense, the court could not see the relevance of the doctrine of uti
possidetis juris since the principle could not provide a clear answer to the
question of the sovereignty of the islands.277 Rather, the court found that
“if the islands are not terra nullius, as both Parties acknowledge and as is
generally recognized, it must be assumed that they had been under the
rule of the Spanish Crown.”278 Upholding the Nicaraguan query, the
court ruled:
[U]ti possidetis juris presupposes the existence of a delimitation of territory between the colonial provinces concerned having been effected
by the central colonial authorities. Thus in order to apply the principle
of uti possidetis juris to the islands in dispute it must be shown that the
Spanish Crown had allocated them to one or the other of its colonial
provinces.279
This ruling echoed the ICJ’s prior judgment in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
where the court faced similar difficulty in attributing islands that had not
been allocated to the contesting territorial administrations. 280 The court
stressed:
[W]hen the principle of uti possidetis juris is involved, the jus referred
to is not international law but the constitutional or administrative law of
the pre-independence sovereign, in this case Spanish colonial law; and
it is perfectly possible that that law itself gave no clear and definitive
answers to the appurtenance of marginal areas, or sparsely populated
areas of minimal economic significance.281
As a result, the uti possidetis juris line has limited value in such circumstances, and also raises fundamental questions about the nature of colonial effectivités and the extent to which it generated title-claiming activities. If colonial effectivités is taken at face value, it consists of “the conduct of the administrative authorities as proof of the effective exercise of
territorial jurisdiction in the region during the colonial period.”282
Read in this light, questions arise about the extent to which every colonial power has exercised effective administrative control over territory
deemed to be under colonial rule. It also brings into sharp conflict the
contiguous territory rule—i.e., where claim to hinterland may be laid
277. See id. para. 158.
278. See id.
279. See id.
280. Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening),
1992 IC.J. 351, 558–59 (Sept. 11).
281. Id. at 559.
282. Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 586 (Dec. 22).
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based on effective occupation of the coast, a rule adopted by the Berlin
West Africa Conference283—and would have significant ramifications for
indigenous peoples and nations that have been submerged under modern
states based on tacit or implicit application of uti possidetis juris. However, such a reading of the judgment is excessively expansive; it is clear
that the court had no intention of sanctifying a general rule that would
bring into question the nature of the control exercised by colonial powers, except in the context of an interstate territorial dispute. Although
there may be no legal significance attached to the fate of former colonial
territories, it does signify the opening up of the nature of control exercised during colonial times in an international legal forum, about which
earlier cases were reticent.284 Indeed it could be argued that the engagement of this discussion is tribute to the point raised in Territorial Dispute
(Libya/Chad) regarding colonial effectivités and the extent to which it
propelled title-generating claims to territory.285
283. See C.H. Alexandrowicz, The Role of Treaties in the European-African Confrontation in the Nineteenth Century, supra note 39, at 46–47. See generally SYBIL E. CROWE,
THE BERLIN WEST AFRICA CONFERENCE 1884–1885 (1942). The Berlin West Africa Conference (1884–85) consisted of a series of negotiations that took place in Berlin, Germany
under the chairmanship of Chancellor Otto van Bismarck. See id. at 5–6. The purpose of
the conference was to create a forum through which the major European powers could
engage in discussions and determinations concerning their future roles in Africa. See id.
It is historically famous for the decision to divide Africa into spheres of control. See id. at
190.
284. The court is still likely to read the intertemporal rule in its strictest light, but it has
arguably begun to weigh different factors and examine a wider range of evidence than
previously considered. See Kaiyan Homi Kaikobad, The Quality of Justice: “Excès de
Pouvoir” in the Adjudication and Arbitration of Territorial and Boundary Disputes, in
THE REALITY OF INTERNATIONAL LAW: ESSAYS IN HONOUR OF IAN BROWNLIE 293 (Guy S.
Goodwin-Gill & Stefan Talmon eds., 1999).
285. In Territorial Dispute (Libya/Chad), the Libyans strongly rebutted the effectivités
argument with respect to treaties:
[T]he historical evidence shows that when the Anglo-French agreements from
1890 to 1899 were concluded neither France nor Great Britain had any effective authority over the African territories and peoples included in their respective “spheres of influence” and, indeed, no meaningful presence at all in most
of the region. When France created the “circonscription spéciale dite ‘territoire
militaire des pays et protectorates du Tchad’” in September 1990, within what
were then called the French Congo Territories, it had neither effective authority
nor any real presence in the areas surrounding or extending north of Bir Alali in
Kanem or in the regions of Borkou, Tibesti, Ouinianga, Erdi and Ennedi.
Memorial Submitted by the Great Socialist People’s Libyan Arab Jamahiriya Vol.1, Territorial Dispute (Libya/Chad), 1991 I.C.J. Pleadings 71, para. 4.06 (Aug. 26, 1991).
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E. Pending Cases
The doctrine of uti possidetis juris is likely to be called into question in
several pending cases.286 For instance, in Territorial & Maritime Dispute
(Nicaragua v. Colombia), Nicaragua has already sought to convince the
ICJ of its sovereignty over the San Andrés Archipelago based on ancient
titles generated by the doctrine of uti possidetis juris.287 Although many
of the pending cases raise issues similar to those previously addressed by
the ICJ, the PCIJ, and related special tribunals, each disputed territorial
claim or boundary delimitation request inevitably raises specific elements that challenge the ICJ to be an authority on history, and to reflect
this authority in legal judgment.288 This challenge is identified by Judge
Higgins, who discussed Frontier Dispute (Benin/Niger) in a special address to the International Law Commission:
To understand who at the time had the authority to determine or change
a frontier required reliance on national law. But then, as in other such
cases, it was important for the Court to be able to identify which
authorised colonial acts were purely intra-colonial or whether they
could have the effect of altering a frontier for purposes of international
law.289
In that case, the ICJ was specifically instructed to use the principle of uti
possidetis juris in its decision:
286. See Territorial and Maritime Dispute (Nicar. v. Colom.) (Dec. 13, 2007), available at http://www.icj-cij.org/docket/files/124/14305.pdf (last visited Jan. 26, 2008); Pulp
Mills on the River Uruguay (Arg. v. Uru.) (Application Instituting Proceedings) (May 4,
2006), available at http://www.icj-cij.org/docket/files/135/10779.pdf (last visited Jan. 26,
2008) (concerning the extent to which the Government of Uruguay may decide to locate a
pulp mill on the common boundary between the states without due consultation); Dispute
Regarding Navigational and Related Rights of Costa Rica on the San Juan River (Costa
Rica v. Nicar.) (Application Instituting Proceedings) (Sept. 29, 2005) (regarding Costa
Rica’s rights on the San Juan River), available at http://www.icj-cij.org/docket/files/133/
8268.pdf (last visited Jan. 26, 2008); Maritime Delimitation in the Black Sea (Rom. v.
Ukr.) (Application Instituting Proceedings) (Sept. 16, 2004) (seeking to establish a maritime boundary that would delimit the continental shelf and exclusive economic zones),
available at http://www.icj-cij.org/docket/files/132/1697.pdf (last visited Jan. 26, 2008);
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malay./Sing.) (Special Agreement) (July 24, 2003), available at http://www.icjcij.org/docket/files/130/1785.pdf (last visited Jan. 26, 2008).
287. See Territorial and Maritime Dispute (Nicar. v. Colom.) para. 7 (Dec. 13, 2007),
available at http://www.icj-cij.org/docket/files/124/14305.pdf (last visited Jan. 26, 2008).
288. See H.E. Judge Rosalyn Higgins, President, ICJ, Speech at the 58th Session of the
International Law Commission (July 25, 2006), available at http://www.icj-cij.org/
court/index.php?pr=1272&pt=3&p1=1&p2=3&p3=1.
289. Id.
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The interesting challenge was to have this doctrine play its important
role, without ignoring, temporally speaking, all that had occurred in
real life subsequently. The Court confirmed that it would look at maps
and other data subsequent to the critical date, but to see if they evidenced an agreement to alter the uti possidetis line.290
The ICJ was asked to determine the boundary between Benin and Niger
in the River Niger and River Mekou sector, which would establish de
jure sovereignty over the disputed islands in the Niger River.291 The ICJ
applied the doctrine of uti possidetis juris to determine the inherited
boundary from French colonial rule on the agreed critical dates: Benin’s
independence (formerly the French colony of Dahomey) on August 1,
1960, and Niger’s independence (formerly the French colony of Niger)
on August 3, 1960.292 While the ICJ was mindful that applying droit
d’outre-mer, or French colonial law, was overwhelmingly important, it
also recognized that modern day physical realities could not be discounted, especially in determining the sovereignty of islands that may
appear or disappear over time.293 In determining the nature of droit
d’outre-mer, the most relevant document was the decree of the President
of the French Republic of June 16, 1895,294 which placed the entire territory of Afrique Occidentale Française under the stewardship of a Governor-General, and then divided the territory into colonies headed by Lieutenant-Governors, which were divided into cercles, or smaller administrative units.295 The judgment also discussed the process for modifying
the units’ territorial dimensions, with local Lieutenant-Governors holding
considerable power for this modification.296 The judgment was also
unique in that it determined the frontier on two bridges between Gaya in
Niger and Malanville in Benin—unprecedented in the history of the territorial disputes.297
290. Id.
291. Frontier Dispute (Benin/Niger), 2005 I.C.J. 90, 94–103 (July 12).
292. Id. at 108.
293. See id. at 108–09.
294. See id. at 110.
295. See generally DOV RONEN, DAHOMEY: BETWEEN TRADITION AND MODERNITY
(1975) (concerning the declaration of the independence of Dahomey, which subsequently
became Benin); WILLIAM F.S. MILES, HAUSALAND DIVIDED: COLONIALISM AND
INDEPENDENCE IN NIGERIA AND NIGER (1994) (concerning the independence of Niger and
the division between Nigeria and Niger based on colonial linguistics).
296. See id. at 108–11.
297. See id. at 141–42. See generally Fabio Spadi, The International Court of Justice
Judgment in the Benin-Niger Border Dispute: The Interplay of Titles and “Effectivités”
Under the Uti Possidetis Juris Principle, 18 LEIDEN J. INT’L L. 777 (2005).
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V. MODERN LAWS OF SELF-DETERMINATION IN LIGHT OF THE
DOCTRINES GOVERNING TERRITORIALITY
Having analyzed the major doctrinal tools that are available in public
international law, and having studied their application in terms of the
major international legal challenges that have arisen before the ICJ, it is
now time to turn to the doctrines’ value in self-determination claims.
This Part pays particular attention to the doctrines’ continued salience for
territories that have been wrested from indigenous and other communities, especially those that remain effectively dispossessed and marginalized despite the decolonization process that may have occurred within
the territories themselves.
Self-determination involves the following direct constraints vis-à-vis
its application to the land rights of indigenous peoples: (1) its expression
in human rights law, especially in the context of raising territorial claims;
(2) its expression in public international law; (3) the legal entitlements of
peoples, indigenous peoples, and minorities to this right; and (4) the difficulties with the means for expressing self-determination. Many arguments pertaining to indigenous peoples’ self-determination start from the
premise that the right should be applied in the same manner that it was
applied during decolonization,298 requiring the group asserting the right
to self-determination to show that it had been subject to a process of
colonization or quasi-colonization.299 Indigenous peoples would have a
strong claim, especially where public international law and subsequent
colonial law were used to erase,300 ignore,301 or in some instances illegitimately transfer302 title to the territory that they inhabited.303
Although self-determination is promised rather gloriously to all peoples in the human rights covenants,304 “peoples” is inevitably read in the
298. See generally Kingsbury, supra note 13, at 216–34.
299. See generally SUREDA, supra note 123, at 95–101 (discussing the analysis for
determining entitlements to self-determination). See also Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the UN Era, 88 AM. J. INT’L L. 304 (1994).
300. See ALEXANDRA XANTHAKI, INDIGENOUS RIGHTS AND UNITED NATIONS
STANDARDS 131–76 (2007).
301. See JÉRÉMIE GILBERT, INDIGENOUS PEOPLES’ LAND RIGHTS UNDER
INTERNATIONAL LAW: FROM VICTIMS TO ACTORS (2006).
302. See, e.g., Albert Barume, Indigenous Battling for Land Rights: The Case of the
Ogiek of Kenya, in INTERNATIONAL LAW AND INDIGENOUS PEOPLES 365 (Joshua Castellino & Niamh Walsh eds., 2005).
303. See Bradford, supra note 44.
304. See ICESCR, supra note 62, art. 1 (“All peoples have the right of selfdetermination.”); ICCPR, supra note 62, art. 1 (sharing a common article 1). It would be
difficult to construct an objective standard to measure “colonial” treatment in the modern
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traditional European twentieth century colonial context, and is seldom
extended further back in history, thus denying the right to groups that
claim to be victims of subjugation in the ancient past in a manner they
deem colonial. In human rights law, despite the strong rhetoric of selfdetermination, the right has limited utility in determining the fate of the
territory historically inhabited by people of a nation or ethnie.305 This
narrow definition nullifies the value of decolonization rhetoric for indigenous peoples, because the right to self-determination contained in
human rights annals offers little remedy to the dispossession of land.306
During the wave of decolonization in the latter part of the twentieth
century, the three options that existed for a unit emerging from decolonization were relatively straightforward: (1) creation of an independent
state; (2) free association with an existing state; or (3) integration with a
pre-existing state.307 Despite the clear articulation of these options, very
few processes of decolonization occurred through any reference to the
people.308 Rather, the territorial units were handed over to those claiming
sovereignty without consulting the inhabiting people.309 As a result, decolonization was more akin to Latin American seizure of political power,
rather than a concerted focus on the democratic consent notion that underpinned the American and French Revolutions.
Despite these difficulties, the existence of the right continues to raise
aspirations worldwide, in many instances playing into the hands of idencontext. However, denying indigenous populations of their human rights and access to
justice provides one possible basis for such a threshold.
305. See Joshua Castellino, Conceptual Difficulties and the Right to Indigenous SelfDetermination, in MINORITIES, PEOPLES AND SELF-DETERMINATION: ESSAYS IN HONOUR
OF PATRICK THORNBERRY 55 (Nazila Ghanea & Alexandra Xanthaki eds., 2005).
306. See SARAH JOSEPH, JENNY SCHULTZ & MELISSA CASTAN, THE INTERNATIONAL
COVENANT ON CIVIL & POLITICAL RIGHTS: CASES, MATERIALS AND COMMENTARY 99–107
(2000) (reflecting on the issues addressed by the HRC in article 1 of the ICCPR). See
generally THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS, supra note 13, at
116–376 (discussing human rights instruments). See G.A. Res. 61/295, U.N. Doc.
A/RES/61/295 (Sept. 13, 2007).
307. See G.A. Res. 1541 (XV), supra note 59.
308. See generally SUREDA, supra note 123 (detailing the extent to which the decolonization processes occurred and the extent to which there was consultation). While the
work is now dated it nonetheless remains a comprehensive account of U.N. decolonization, much of which had already occurred at the time of writing. See id.
309. See JOHN D. HARGREAVES, DECOLONIZATION IN AFRICA (2d ed. 1996). The consent of the Africans was needed for tranquility, though in terms of the handover of power,
mere acquiescence would possibly suffice. See id. at 22. African consent was required by
the British in terms of its colonies—not regarding the legitimacy of the new arrangements
for the emerging state, but in the context of having to sell the plan at home to political
forces opposing the U.K. Parliament. See id. at 115, 180.
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tity entrepreneurs that seek political power at the cost of dismembering
existing states.310 For more genuine claims, however, the right remains of
dubious value—impossible to ignore, but a constant red herring in the
quest for equal rights for displaced and dispossessed populations struggling to come to terms with what modernity implies for traditional ways
of life.311 As was revealed in the achievement of autonomy in the northern Canadian territories of Nunavut, other means may provide a more
useful avenue compared to self-determination claims, assuming, however, that a state is willing to engage in discussion with an indigenous
people312—something that very few states are currently willing to do.313
Self-determination, including the potential option of political status determination, i.e., the option of raising the issue of the best political structure for determination by the specific group, should be made available to
indigenous peoples (just as it was to colonial peoples) by conceptualizing
self-determination for indigenous peoples through an expansive analysis
of the Human Rights Committee (“HRC”) jurisprudence on the applicability of article 1(2) of the ICCPR.314 Article 1 states:
1. All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising out of
international economic co-operation, based upon the principle of mu-
310. See, e.g., PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND INTERNATIONAL
LAW (2001). It could be argued that the entire dissolution of the Former Yugoslavia was
motivated by the entrepreneurial efforts of Slobodan Milosevic. See id. at 168. In trying
to garner greater power within the state for Serbia, Milosevic effectively appealed to the
more separatist elements within the state, leading in a most devastating and costly manner
to Yugoslavia’s dismemberment. See id.
311. See also International Labour Organisation [ILO], Convention Concerning Indigenous and Tribal Peoples in Independent Countries arts. 13–17, June 27, 1989, 28
I.L.M. 1384; THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS, supra note 13, at
366 (explaining that many indigenous groups are disappointed that the ILO Convention’s
evasive language fails to address self-determination). See also Lee Swepston, Indigenous
Peoples in International Law and Organizations, in INTERNATIONAL LAW AND
INDIGENOUS PEOPLES 53 (Joshua Castellino & Niamh Walsh eds., 2005).
312. See JENS DAHL, JACK HICKS & PEER JULL, NUNAVUT: INUIT REGAIN CONTROL OF
THEIR LANDS AND THEIR LIVES 24 (2000) (discussing the Inuit negotiations with the Canadian government).
313. The discussion in Canada over indigenous rights is in sharp contrast to the discussion that has taken place in Australia under the premiership of John Howard. See
ANDREW MARKUS, RACE: JOHN HOWARD AND THE REMAKING OF AUSTRALIA (2001).
314. See ICCPR, supra note 62, art. 1(2).
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tual benefit, and international law. In no case may a people be deprived
of its own means of subsistence.
3. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of selfdetermination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
While the HRC—the monitoring body of the ICCPR and the quasijudicial monitors of Covenant obligations—has been reluctant to engage
the issue of self-determination,315 its reluctance has changed slightly in
the context of indigenous peoples’ claims.316 In the past, the HRC
avoided engaging article 1.317 However, the current approach is not as
overtly cautious and self-determination arguments are addressed under
the rubric of indigenous rights to “subsistence.”318 Yet, in ruling that selfdetermination can be claimed under article 1(2) rather than article 1(1),
315. See, e.g., Mikmaq Tribal Society v. Canada, Commc’n No. 78/1980, U.N. Doc.
A39/40 (U.N. Hum. Rts. Comm. 1984); Ominayak & the Lubicon Lake Band v. Canada,
Commc’n No. 167/1984, U.N. Doc. CCPR/C/38/D/167/1984 (U.N. Hum. Rts. Comm.
1990).
316. See Äärelä & Näkkäläjärvi v. Finland, Commc’n No. 779/1997, U.N. Doc.
CCPR/C/73/D/779/1997 (U.N. Hum. Rts. Comm. 2001); Länsman v. Finland, Commc’n
No. 511/1992, U.N. Doc. CCPR/C/52/D/511/1992 (U.N. Hum. Rts. Comm. 1994);
Länsman v. Finland, Commc’n No. 671/1995, U.N. Doc. CCPR/C/58/D/671/1995 (U.N.
Hum. Rts. Comm. 1996). See also S. James Anaya, Self-Determination as a Collective
Human Right Under Contemporary International Law, in OPERATIONALIZING THE RIGHT
OF INDIGENOUS PEOPLES TO SELF-DETERMINATION 3 (Pekka Aikio & Martin Scheinin
eds., 2000); Martin Scheinin, Indigenous Peoples’ Rights Under the International Covenant on Civil and Political Rights, in INTERNATIONAL LAW AND INDIGENOUS PEOPLES 179
(Joshua Castellino & Niamh Walsh eds., 2005) (addressing the manner in which the HRC
has discussed and determined complaints raised by indigenous peoples).
317. See, e.g., Mikmaq Tribal Society v. Canada, Commc’n No. 78/1980, at 200, 202,
U.N. Doc CCPR/C/43/D/205/1986 (U.N. Hum. Rts. Comm. 1984).
318. Länsman v. Finland, Commc’n No. 671/1995, U.N. Doc. CCPR/C/58/D/671/1995
(U.N. Hum. Rts. Comm. 1996). Of the initial HRC cases that alleged violations of article
1 of the ICCPR, the HRC only found a violation of the ICCPR in Lubicon Lake Band v.
Canada, Commc’n No. 167/1984, U.N. Doc. Supp. No. 40 (A/45/40) (U.N. Hum. Rts.
Comm. 1990). However, the HRC found that article 27 had been violated. See id. para.
33. Since 2000, in cases similarly alleging article 1 violations, the HRC has similarly
found violations of alternative articles of the ICCPR. See Gorji-Dinka v. Cameroon,
Commc’n No. 1145/2002, U.N. Doc. CCPR/C/83/D/1134/2002 (U.N. Hum. Rts. Comm.
2005); Diergaardt v. Namibia, Commc’n No. 760/1997, U.N. Doc. CCPR/C/
69/D/760/1997 (U.N. Hum. Rts. Comm. 2000). See generally A.F. Bayefsky, Jurisprudence—CCPR, http://www.bayefsky.com/docs.php/area/jurisprudence/treaty/ccpr/opt/0/
node/5/type/all (last visited Feb. 5, 2008) (listing HRC cases alleging ICCPR violations).
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the HRC may be accused of nevertheless taking a highly conservative
and non-confrontational stance to the detriment of the drafters’ intent.319
It has always been clear that the right to self-determination was considered a right of “whole peoples.” However, if the HRC finds that indigenous peoples face quasi-colonial situations where the right to selfdetermination has been violated, restriction to only the socio-economic
aspects of the right would seem to challenge the foundations of article
1(1). Instead, it could be argued that the difficulty with the application of
article 1 as a whole lies in determining who the “people” are, not the restrictive application of their rights once this determination has been
made. Without a doubt, a quasi-judicial body such as the HRC is always
likely to approach the determination of a group’s political status with
some trepidation,320 yet it could be argued that this remains crucial if the
territorial element of self-determination is to remain alive. Article 1 as a
whole was put in its preeminent position at the head of the ICESCR and
the ICCPR on the grounds that, unless a subjugated people can determine
its own political, economic, social, and cultural future, an articulation of
the rest of their human rights may prove meaningless.
Furthermore, the HRC must not seek to undo one wrong by imposing
another wrong. Therefore, populations resettled on indigenous territory—many of whom may have lived there for centuries—also have
rights and cannot be dispossessed. This leads to a distinction between
two types of claims: (1) territory where indigenous peoples, subjugated
nations, or ethnie live on contiguous territories where they form the majority; and (2) territory where these communities live dispersed throughout the state.321 In the latter, a territorially entrenched self-determination
solution would be impractical due to the need to respect other groups
living among the indigenous people. However, where indigenous peoples
or others with genuine territorial self-determination claims live in homogenous pockets, a more coherent engagement of this claim would be
consistent with the evolving nature of indigenous claims themselves and
a growing sense of the rights of historically suppressed communities.
This would also offer an adequate response to the HRC’s own past conservative approach as indicated by General Comment 12, which inter-
319. See Joshua Castellino & Jérémie Gilbert, Self-Determination, Indigenous Peoples
and Minorities, 3 MACQUARIE L. J. 155 (2003).
320. See DAVID KRETZMER, THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF
ISRAEL AND THE OCCUPIED TERRITORIES 22–24 (2002).
321. See Castellino & Gilbert, supra note 319.
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TERRITORIAL INTEGRITY
561
prets self-determination without the territorial ownership element, and
thus, for many, is not true self-determination at all.322
From this distinction between contiguous, homogenous groups living
in discrete territorial units and non-contiguous, non-homogenous groups
that are territorially dispersed, four remedies of political selfdetermination emerge:
1. Political self-determination that includes a consent-based determination of the fate of the territory.323 This remedy may or
may not extend to possessory interdicts over contested territories
and could be offered to territorially based indigenous people living in contiguous zones or homogenous pockets. It also includes
the right of such determination and addresses the subsequent title
to the territory they inhabit.
2. Non-political self-determination that includes a range of rights
that fall short of accepting the territorial claim.324 This remedy
could be offered to non-territorially based indigenous peoples to
guarantee access to human rights law and to address issues of
personal autonomy.
3. Non-political self-determination to minorities that guarantees
human rights and access to special measures, but does not confer
the right of self-determination in any sense, on the grounds that
minorities are not peoples.325
4. Remedial right to self-determination where widespread and
consistent rights denial occurs—usually in the form of crimes
322. U.N. Office of the High Commissioner on Human Rights [HCHR], General
Comment No. 12: The Right to Self-Determination of Peoples (Article 1), Human Rights
Committee, 21st Sess. (1984), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.5, at 121 (2001). See also U.N. CERD, General Recommendation XXIII
on Indigenous Peoples, U.N. Doc. CERD/C/51/Misc.13/Rev.4 (Aug. 18, 1997); U.N.
CERD, General Recommendation XXI on Self-Determination, U.N. Doc.
CERD/48/Misc.7/Rev.3 (1996); U.N. HCHR, General Comment 23: The Rights of Minorities (Article 27), U.N. Doc. CCPR/C/21/Rev.1/Add.5 (Apr. 8, 1994).
323. Woodrow Wilson, Fourteen Point Plan, in THE PUBLIC PAPERS OF WOODROW
WILSON (Ray Stannard Baker & William E. Dodd eds., 1927). See also Anthony Whelan,
Wilsonian Self-Determination and the Versailles Settlement, 43 INT’L & COMP. L.Q. 99,
99 (1994).
324. See Gilbert, Autonomy and Minority Groups: A Right in International Law?, supra note 219 (advocating for a more forthright right to autonomy, even if it is not necessarily as widely applied).
325. This option maintains the current status quo, where minorities—vis-à-vis General
Comment 12 and other documents—are not clearly entitled to the right to selfdetermination, which is reserved for “peoples.” See supra note 322.
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against humanity or genocide—against a vulnerable group, such
as indigenous peoples or minorities. The exercise of the territorial rights associated with self-determination should be part of
the international community’s duty to protect against gross human rights violations.326
One vital consideration is a group’s territorial basis since it would be
nearly impossible to realign states where indigenous populations do not
live in a contiguous zone. Rather than subjecting all group claims to this
standard of territorial basis and denying the territorial element of many
genuine self-determination claims, the nuanced approach above will help
give meaning to the right to self-determination in the post-colonial context. Territorially based indigenous peoples would have rights akin to
those of colonial peoples, including political self-determination that includes a consent-based determination of territory.327 Indigenous peoples
not inhabiting distinct territories would have the right to non-political
self-determination, which falls short of granting territorial claims.328
Also, as currently posited in terms of the ICCPR, minorities would
continue to have their rights guaranteed under article 27 of the ICCPR329
and would only be able to raise admissible claims under article 1, where
allegations of gross human rights violations call into play the international community’s duty to protect.330 Apart from this eventuality, minor326. See Anaya, Self-Determination as a Collective Human Right Under Contemporary International Law, supra note 13, at 12–14. But see Patrick Thornberry, SelfDetermination and Indigenous Peoples: Objections and Responses, in
OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION 39
(Pekka Aikio & Martin Scheinin eds., 2000).
327. See Joshua Castellino, The “Right” to Land, International Law & Indigenous
Peoples, in INTERNATIONAL LAW AND INDIGENOUS PEOPLES 89, 111 (Joshua Castellino &
Niamh Walsh eds., 2005).
328. See id. at 111.
329. See ICCPR, supra note 62, art. 27 (“In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy their own culture, to
profess and practise their own religion, or to use their own language.”). See also U.N.
HCHR, General Comment 23: The Rights of Minorities (Article 27), U.N. Doc.
CCPR/C/21/Rev.1/Add.5 (Apr. 8, 1994).
330. See A More Secure World: Our Shared Responsibility: Report of the High-Level
Panel on Threats, Challenges and Change, ¶ 203, U.N. Doc. A/59/565 (Dec. 2, 2004)
(describing the duty to protect as an “emerging norm that there is a collective responsibility to protect”). This high-level panel was convened by Secretary General Kofi Annan to
“assess current threats to international peace and security; to evaluate how our existing
policies and institutions have done in addressing those threats; and to make recommendations for strengthening the United Nations so that it can provide collective security for all
in the twenty-first century.” Id.¶ 3. The report was also subsequently endorsed by Secre-
2008]
TERRITORIAL INTEGRITY
563
ity rights protection should focus on guaranteeing non-discrimination and
equality, with the possibility of constructing affirmative action measures
where such action is warranted and likely to be effective.331 In addition,
“internal self-determination,” i.e., self-determination that does not take
into account the title to territory aspect, could also be entertained in the
name of effective participation within the political rubric of the state.332
This four-tiered approach to self-determination claims highlights the
interaction between the doctrines governing territoriality in international
law and the right to self-determination of subjugated peoples. Furthermore, it offers some remedy to past processes that were inadequately
addressed in international law, the persistence of which undermines its
claim to provide justice. While this approach gives indigenous claims a
higher valence than that of other submerged nations, this is a justifiable
distinction that already exists333 on the grounds that indigenous peoples
are nonetheless “peoples,” while minorities may not be. The approach
also has the advantage of rectifying the incomprehensible double standard where more recent colonization is subjected to the territorial remedy
of self-determination while older colonization is not. In any case, the inclusion of indigenous peoples as peoples in international law has found
some traction, as reflected in the creation of the Permanent Forum on
Indigenous Populations and the controversial Declaration on the Rights
of Indigenous Peoples.334
tary-General Annan in a 2005 report. See The Secretary General, In Larger Freedom:
Towards Development, Security and Human Rights for All: Report of the SecretaryGeneral, ¶ 135, U.N. Doc. A/59/2005 (Mar. 21, 2005).
331. See generally GERTRUDE EZORSKY, RACISM & JUSTICE: THE CASE FOR
AFFIRMATIVE ACTION (1991) (providing a discussion of affirmative action and its interesting legal challenges); MICHAEL BANTON, INTERNATIONAL ACTION AGAINST RACIAL
DISCRIMINATION 87–88 (1996) (addressing the value of affirmative action for international human rights law); THE AFFIRMATIVE ACTION DEBATE (Steven M. Cahn ed., 2d ed.
2002) (providing a more current offering on the affirmative action debate, especially as
played out in the United States).
332. See Gilbert, Autonomy and Minority Groups: A Right in International Law?, supra note 219, at 307 (“[S]elf-determination is increasingly recognized as having an internal aspect that requires full and effective participation by all groups in society.”).
333. See generally TIMO MAKKONEN, IDENTITY, DIFFERENCE AND OTHERNESS: THE
CONCEPTS OF “PEOPLE,” “INDIGENOUS PEOPLE” AND “MINORITY” IN INTERNATIONAL LAW
(2000).
334. See Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N.
Doc. A/RES/61/295 (Sept. 13, 2007). The Declaration on the Rights of Indigenous Peoples was adopted by a vote of 143 (in favor) to 4 (against) with 11 abstentions. See Press
Release, U.N., General Assembly Adopts Declaration On Rights Of Indigenous Peoples;
“Major Step Forward” Towards Human Rights For All, Says President (Sept. 13, 2007),
available at http://www.un.org/News/Press/docs/2007/ga10612.doc.htm. See also
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Such developments are congruous with the emergence of norms
against genocide, crimes against humanity, and the international community’s duty to protect populations against gross human rights violations.
Validating remedial self-determination, a mechanism arguably at work in
Bangladesh, Eritrea, Timor-Leste, and Kosovo, would effectively provide sanctions in law, rendering states accountable to the international
community for mistreatment of indigenous groups.335 In one sense, the
recognition of remedial self-determination reflects Grotius’ maxim jus
resistendi ac secessionis.336 It is the natural law right of self-defense,337
PATRICK THORNBERRY, INDIGENOUS PEOPLES AND HUMAN RIGHTS 370–96 (2002) (providing insight into the contentious nature of the framing of the document and its history).
335. See supra notes 9, 222. See generally G.A. Res. 2625 (XXV), supra note 57. The
resolution articulates the rationale of self-determination as the need to promote friendly
relations among states and to end colonization:
Every State has a duty to promote, through joint and separate action, realization
of the principle of equal rights and self-determination of peoples . . . .
...
Every state has the duty to promote, through joint and separate action universal
respect for and observance of human rights and fundamental freedoms . . . .
...
Every State has the duty to refrain from any forcible action which deprives
peoples . . . in the elaboration of the present principle of their right to selfdetermination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to selfdetermination, such peoples are entitled to seek and to receive support . . . .
...
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
Every state shall refrain from any action aimed at the partial or total disruption
of the national unity and territorial integrity of any other State or country.
Id. at 123–24. For more on this document and its importance in developing the norm of
self-determination, see CASTELLINO, INTERNATIONAL LAW AND SELF-DETERMINATION:
THE INTERPLAY OF THE POLITICS OF TERRITORIAL POSSESSION WITH FORMULATIONS OF
POST-COLONIAL “NATIONAL” IDENTITY, supra note 15, at 34–41.
336. See NEUBERGER, supra note 25, at 4; HUGO GROTIUS AND INTERNATIONAL
RELATIONS 267 (Hedley Bull, Benedict Kingsbury & Adam Roberts eds., 1992).
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TERRITORIAL INTEGRITY
565
and in exercise of this right, the entity may opt to secede from an existing
state with the backing of the international community.338
CONCLUSION
Despite the uncertain legal valence ascribed to self-determination, especially in its territorial dimension, it remains the only vehicle through
which indigenous rights to territory can be expressed. The right itself has
seen numerous changes since its early expressions, and at each fin de
siècle it has developed nuances as a political principle. Giving a principle
of uncertain substantive content the authority of a legal tenet was arguably fraught with danger. Yet, political forces bestowed the right to selfdetermination as the vehicle for expression of freedom in the face of oppression. However, in looking towards self-determination as a tool for
modern freedom from oppression, Kingsbury’s warning vis-à-vis the future of self-determination is worth heeding:
[The] argument from decolonisation has been reinforced by practice
suggesting that self-determination in the strong form as a right to establish a separate state may be an extraordinary remedy in distinct territories suffering massive human rights violations orchestrated by governing authorities based elsewhere in the state . . . . But the far-reaching
argument that self-determination in this strong form of statehood or almost complete autonomy is essential as a general precondition for human rights does not establish which groups or territories are the units of
self-determination for purposes of human rights enhancement; nor does
it overcome legitimate concerns about the threats to human rights and
to human security posed by repeated fragmentation and irredentism.
The remedial human rights justification for self-determination, while
persuasive in some cases, is most unlikely to become normal rather
than exceptional unless the sovereignty and legitimacy of states declines precipitously.339
A more concerted approach at engaging the underlying tensions in
many post-colonial states, like the one proposed, will allow more thorough analysis and reflection on whether the quest to protect order—by
sanctifying inherited international frontiers—has truly yielded order. In
some parts of the world, the accepted boundaries have become the ac337. See Castellino, The Secession of Bangladesh: Setting New Standards in International Law?, supra note 222, at 93–94.
338. See supra note 222 (discussing territorial claims achieved through international
political processes rather than law).
339. Benedict Kingsbury, Reconstructing Self-Determination: A Relational Approach,
in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION 23
(Pekka Aikio & Martin Scheinin eds., 2000).
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cepted markers of identity, but in many other places, boundaries continue
to fuel aspiration and separatism. The law as it stands suggests that uti
possidetis juris lines may be modified by consent. However, this consent
is restricted to that between sovereign states. This particularly disadvantages cross-border communities who are often unrepresented by the governments on both sides of the frontier. It also fails to provide any remedy
to indigenous peoples, many of whom are not in strong enough political
positions to mobilize support for their causes. As it stands, non-state actors have no explicit right in international law to demand or even raise
questions of territorial adjustment, rendering the territorial aspects of
self-determination relatively meaningless. It is mainly this interpretation
that has led the quasi-judicial human rights bodies, such as the HRC and
its counterpart in the International Convention for the Elimination of All
Forms of Racial Discrimination, to articulate the norm of internal selfdetermination.340 However, denying the political territorial aspect of selfdetermination reduces this historic right—used as a rallying point to fight
injustice—to a relatively mundane discussion about political rights within states. The claimants rightly fail to see why they need to exist within
externally defined units for the sake of historical convenience and international order. As a result, aggrieved and unrepresented peoples along
with political opportunists raise the banner of self-determination, often
resorting to the use of force to internationalize their conflict and seek
resolution of the issue away from the realm of law and within the realm
of power.341
Thus, in terms of indigenous peoples and the right to land, international
law is keen to guarantee order and stymie any norm that could potentially
violate that order. Accordingly, international law stresses that selfdetermination should involve the accommodation of differing national
identities within the confines of the state, rather than the creation of new
states or the dismembering of older states, and quasi-judicial human
rights bodies are less than keen to make the connection between selfdetermination and the right to property for indigenous peoples in deference to state parties.
340. See generally Patrick Thornberry, The Democratic or Internal Aspect of SelfDetermination with Some Remarks on Federalism, in MODERN LAW OF SELFDETERMINATION 101 (Christian Tomuschat ed., 1993).
341. See generally U.N. ECOSOC, Sub-Comm. on Prevention of Discrimination &
Prot. of Minorities, Minority Rights and the Prevention of Ethnic Conflicts, U.N. Doc.
E/CN.4/Sub.2/AC.5/2000/CRP.3 (May 10, 2000), available at http://www.unhchr.ch/hur
docda/huridoca.nsf/AllSymbols/31CE7BBED216F60C802568FD0047B63A/$File/G001
3786.pdf; CHRISTOPHER O. QUAYE, LIBERATION STRUGGLES IN INTERNATIONAL LAW
(1991).
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TERRITORIAL INTEGRITY
567
While it is commendable that indigenous peoples’ enfranchisement has
grown within the U.N. and most state systems, it remains akin in many
cases to the granting of full franchise to members living within a colonial
setting. For a fully acceptable solution to the situation, the underlying
basis of the self-determination claim needs to be addressed. However, the
constraints to such an address remain clear—populations that have settled upon the territory have claims too. The state often acts in the interest
of these settler claims, and the state consents to human rights law in the
name of its inhabitants. This particular debate has resulted in the frustration of several important legal documents within the U.N. system,342
within regional settings,343 and also in the context of other organizations.344 The stalling point remains the issue of land rights, and while
important case law is being developed on the subject,345 this jurisprudence tends to occur within domestic rather than international settings.346
Thus, we remain a considerable way from being able to address the issue
of land rights within international and human rights law. Rather than a
clash of ideology, as it was in the negotiation of the International Bill of
342. See U.N. ECOSOC, Sub-Comm. on Prevention of Discrimination & Prot. of Minorities, Draft United Nations Declaration on the Rights of Indigenous Peoples
103–15, U.N. Doc. E/CN.4/Sub.2/1994/56 (Oct. 28, 1994), available at
http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En.
See also Siegfried Wiessner & Marie Battiste, The 2000 Revision of the United Nations
Draft Principles and Guidelines on the Protection of the Heritage of Indigenous People,
13 ST. THOMAS L. REV. 383 (2000); THORNBERRY, INDIGENOUS PEOPLES AND HUMAN
RIGHTS, supra note 13, at 370–96 (discussing the U.N. Draft Declaration on the Rights of
Indigenous Peoples).
343. See Proposed American Declaration on the Rights of Indigenous Peoples, InterAm. C.H.R., 1333d sess., OEA/Ser/L/V/.II.95 (1997). See also THORNBERRY,
INDIGENOUS PEOPLES AND HUMAN RIGHTS, supra note 13, at 397–404 (discussing the
Proposed American Declaration on the Rights of Indigenous Peoples).
344. See Fergus MacKay, Universal Rights or Universe onto Itself? Indigenous Peoples’ Human Rights and the World Bank’s Draft Operational Policy 4.10 on Indigenous
Peoples, 17 AM. U. INT’L L. REV. 527 (2002) (commenting on developing standards at the
World Bank vis-à-vis indigenous peoples). See also ILO, Convention Concerning Indigenous and Tribal Peoples in Independent Countries arts. 13–17, June 27, 1989, 28 I.L.M.
1384.
345. See Wiessner, supra note 48; Inbal Sansani, American Indian Land Rights in the
Inter-American System: Dann v. United States, 10 HUM. RTS. BRIEFS 2 (2003); Osvaldo
Kreimer, Indigenous Peoples’ Right to Land, Territories and Natural Resources: A Technical Meeting of the OAS Working Group, 10 HUM. RTS. BRIEFS 13, 15–16 (2003).
346. See INTERNATIONAL LAW AND INDIGENOUS PEOPLES 159–391 (Joshua Castellino
& Niamh Walsh eds., 2005) (including studies of domestic events in Australia, Canada,
Mexico, Nicaragua, India, Bangladesh, Nigeria, South Africa, and Kenya). Some perceptible changes have been achieved at the regional level, not least within the InterAmerican system. See Anaya & Williams, supra note 193.
568
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Rights,347 this is a clash between the competing interests of the Old
World—in establishing indigenous communities that have been dispossessed over time—and the New—in legitimately occupying the same
territory. The establishment of an appropriate mechanism for addressing
this clash remains central to the protection, promotion, and propagation
of indigenous rights and identity.
347. See generally H. LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN
(1945) (illustrating the perceived challenge of drafting the International Bill of Rights).
ACQUIRING A EUROPEAN TASTE FOR
GEOGRAPHICAL INDICATIONS
INTRODUCTION
I
n a handful of Italian provinces, Parmigiano-Reggiano undergoes
several labor-intensive processes that culminate in the creation of a
large wheel of cheese that must be aged for at least twelve months.1 The
final product has a distinctive flavor that is “full and fruity with a salty
tang.”2 Although the technology has changed, the method of producing
Parmigiano-Reggiano has remained consistent for more than eight hundred years.3
Kraft Foods (“Kraft”) began producing Parmesan Cheese, its own version of Parmigiano-Reggiano, in the United States in 1945.4 Kraft’s
product has many of the same ingredients and uses as ParmigianoReggiano, but there are several notable differences. Unlike ParmigianoReggiano, Parmesan Cheese is mass-produced in large factories5 and is
only aged for about ten months.6 Parmigiano-Reggiano cheese is sold in
fresh wedges, while Parmesan Cheese is grated into a dry, powder-like
substance and packaged in plastic or cardboard tubes.7
Parmigiano-Reggiano producers8 are dismayed by Kraft’s product
name of Parmesan Cheese (“Parmesan” is French for “Parmigiano”—
1. For a more detailed description of how Parmigiano-Reggiano is produced, see
Consorzio del Formaggio Parmigiano-Reggiano, Production Standard, http://www.
parmigiano-reggiano.it/sotto_sezione/14288/Production_Standard.aspx?newlang=7 (last
visited Feb. 10, 2008).
2. JUDY RIDGWAY, THE CHEESE COMPANION: THE CONNOISSEUR’S GUIDE 174
(1999).
3. See Consorzio del Formaggio Parmigiano-Reggiano, http://www.parmigianoreggiano.it/index.html?l=2 (last visited Feb. 10, 2008) (follow “800 Years of Excellence”
hyperlink) [hereinafter Parmigiano-Reggiano Web Site].
4. Kraft Grated Parmesan History, http://www.kraftfoods.com/KraftParm/allAbout
KraftParm (last visited Feb. 10, 2008).
5. JULIET HARBUTT, CHEESE: A COMPLETE GUIDE TO OVER 300 CHEESES OF
DISTINCTION 110 (1999).
6. Libby Quaid, Kraft Wants to Speed the Making of Parmesan, but Purists Cry
Foul, HOUSTON CHRON., Feb. 9, 2006, at 3.
7. See RIDGWAY, supra note 2, at 176. Kraft’s Grate-It-Fresh, which allows the user
to grate his own Parmesan Cheese and was introduced in 2006, is an exception. See Kraft
Grated Parmesan History, supra note 4.
8. There are approximately 450 dairy farms that produce the milk that is essential for
Parmigiano-Reggiano. See Parmigiano-Reggiano Web Site, supra note 3 (follow “Dairies” hyperlink). These dairies are located not only in the province of Parma, but also in
the nearby provinces of Modena, Reggio Emilia, Bologna, and Mantua. See id.
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both mean “of Parma.”).9 These producers maintain that ParmigianoReggiano (or parmesan cheese) can only be produced in Parma and other
nearby provinces because the cheese’s quality and methods of production
are linked with the land and cannot be replicated in other parts of the
world.10 Parmigiano-Reggiano producers also argue that foreign producers of parmesan cheese are free riding on Parmigiano-Reggiano’s traditional product name.11
More specifically, the Parmigiano-Reggiano producers believe that
Kraft is infringing their product’s geographical indication (“GI”).12 GIs,
which constitute a form of intellectual property (“IP”), are “indications
which identify a good as originating in the territory of a [World Trade
Organization (“WTO”)] Member, or a region or locality in that territory,
where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin.”13
The European Communities (“EC”) favors strong GI protection.14 In
fact, in the EC, Kraft is now prevented from labeling its product as
“Parmesan.”15 However, the United States claims the EC is asking too
much in its demands for GI protection.16
The purpose of this Article is to demonstrate why the United States
should acquire a European outlook on GIs and enhance GI protection
under the Agreement on Trade Related Aspects of Intellectual Property
Rights (“TRIPS”). Part I of the Article discusses the history and scope of
pre-TRIPS multilateral agreements on GIs. A detailed account of TRIPS
provisions governing GI protection is included in Part II. Part III describes internal GI protection in the United States and the EC. In Part IV,
I explain what the United States could gain by adopting a European ap-
9. Bob Davis, Italian Town Says British Butchers Just Can’t Cut It—In Parma Ham
Spat, Tradition Collides With Commerce, WALL ST. J., June 4, 2002, at A1.
10. See Lina Montén, Comment, Geographical Indications of Origin: Should They Be
Protected and Why?—An Analysis of the Issue From the U.S. and EU Perspectives, 22
SANTA CLARA COMPUTER & HIGH TECH. L.J. 315, 342 (2006).
11. James Cox, What’s in a Name?, USA TODAY, Sept. 9, 2003, at 1B.
12. See Montén, supra note 10, at 339.
13. Agreement on Trade-Related Aspects of Intellectual Property Rights art 22(1),
Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex
1C, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1197 [hereinafter
TRIPS].
14. Philippe Zylberg, Geographical Indications v. Trademarks: The Lisbon Agreement: A Violation of TRIPS?, 11. U. BALT. INTELL. PROP. L.J. 1, 1 (2002).
15. Montén, supra note 10, at 339. Since 2002, Kraft has been forced to sell its product under another name in Europe (“Pamessello Cheese”) in order to comply with the
EC’s internal GI requirements. Id.
16. See Zylberg, supra note 14, at 1.
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A EUROPEAN TASTE
571
proach to the protection of GIs. Part V illustrates how a comprehensive
and multilateral form of GI protection could be provided.
I. DEVELOPMENT OF GI PROTECTION
International commerce has long placed significant importance upon
geographical names.17 For many centuries, products have been advertised
and sold based upon the name of the specific region in which they originated.18 Traditionally, products such as Bordeaux wine and Darjeeling
tea have been in high demand, commanding premium prices.19 Due to
existing consumer preferences, these GIs are market assets.20 As international commerce continued to expand after the Industrial Revolution,
businesses and developed countries’ governments became concerned
with the protection of GIs in international markets.21
A. The Paris Convention for the Protection of Industrial Property
The Paris Convention, concluded in 1883, was the first multilateral
agreement to cover GIs.22 Although the Paris Convention now has 172
contracting parties,23 its protection of GIs is limited.24 The Paris Convention protects indications of source and appellations of origin.25 In modern
terminology, a GI encompasses both of these terms.26 However, a major
deficiency of the Paris Convention is its failure to define indications of
source and appellations of origin.27 Furthermore, the Paris Convention
does not specify what makes a representation of origin false.28
17. JACQUES AUDIER, TRIPS AGREEMENT: GEOGRAPHICAL INDICATIONS 10 (2000).
18. Id.
19. Id.
20. Id.
21. See id.
22. Id. at 11.
23. WIPO, Paris Convention for the Protection of Industrial Property, Contracting
Parties, http://www.wipo.int/export/sites/www/treaties/en/documents/pdf/paris.pdf (last
visited Feb. 10, 2008).
24. See Justin Hughes, Champagne, Feta, and Bourbon: The Spirited Debate About
Geographical Indications, 58 HASTINGS L.J. 299, 311 (2006).
25. Paris Convention for the Protection of Industrial Property art. 2, Mar. 20, 1883,
828 U.N.T.S. 305, available at http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.
html [hereinafter Paris Convention].
26. AUDIER, supra note 17, at 11. An indication of source is merely intended to designate where a product comes from. Id. However, an appellation of origin is more specific in that it denotes certain qualities and characteristics. Id.
27. Id.
28. GRAEME B. DINWOODIE ET AL., INTERNATIONAL INTELLECTUAL PROPERTY LAW
AND POLICY 317 (2001).
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BROOK. J. INT’L L.
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Article 10 of the Paris Convention allows for the seizure of imported
goods “in cases of direct or indirect use of a false indication of the source
of the goods.”29 Article 10 does not provide protection against misleading indications that are not technically false.30 Misleading indications,
however, have the potential to deceive consumers; thus, their exclusion
from article 10 was a major shortcoming for GI protection under the
Paris Convention.31 Although article 10bis was later added to prohibit
acts of unfair competition that mislead the public with respect to the nature of goods,32 U.S. opposition prevented the application of this provision to GIs.33 Consequently, despite the inclusion of article 10bis, the
Paris Convention fails to prohibit misleading indications of origin.34
B. The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods
In 1891, just eight years after the Paris Convention, the Madrid Agreement expanded protection by prohibiting products with false and deceptive indications of origin.35 However, the Madrid Agreement does not
protect generic terms and allows national courts to determine which indications of origin are generic.36 As a result, with the exception of wine,
which is specifically excluded from generic treatment by article 4,37 national courts have been free to develop different approaches to the Madrid Agreement and often have provided limited protection for foreign
GIs.38 Moreover, the small number of signatories (thirty-five) has limited
29. Paris Convention art. 10.
30. JAYASHREE WATAL, INTELLECTUAL PROPERTY IN THE WTO AND DEVELOPING
COUNTRIES 264 (2001).
31. Id.
32. DINWOODIE ET AL., supra note 28, at 317–18. Article 10bis was added during the
1958 Lisbon Revision Conference. Id. at 318.
33. As originally proposed, Article 10bis(3) provided: “Indications or allegations, the
use of which in the course of trade is liable to mislead the public as to the nature, the
origin, the manufacturing process, the characteristics, the suitability for their purpose or
the quantity of the goods.” Id. The United States vetoed the words “the origin,” a reference to geographical indications, because they would have raised too many issues with
respect to U.S. law. Id.
34. Id.
35. See Madrid Agreement for the Repression of False or Deceptive Indications of
Source on Goods art. 1, Apr. 14, 1891, 828 U.N.T.S. 163, available at http://www.
wipo.int/treaties/en/ip/madrid/trtdocs_wo032.html.
36. AUDIER, supra note 17, at 11.
37. DINWOODIE ET AL., supra note 28, at 318.
38. Jim Chen, A Sober Second Look at Appellations of Origin: How the United States
Will Crash France’s Wine and Cheese Party, 5 MINN. J. GLOBAL TRADE 29, 41 (1996).
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A EUROPEAN TASTE
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the scope of the international GI protection the Madrid Agreement provides.39
C. The Lisbon Agreement for the Protection of Appellations of Origin
and Their International Registration
Europe has been the driving force behind international GI protection.
Thus, there was little progress on the matter while the continent endured
World War I, an economic depression coupled with protectionist trade
policies, and World War II.40 However, once Europe recovered from
World War II, GI protection reemerged as a priority and underwent another round of changes.
The Lisbon Agreement, which was concluded in 1958, represented a
significant advance of GI protection.41 Seventy-five years after the Paris
Convention, the Lisbon Agreement finally defined an appellation of origin as “the geographical name of a country, region, or locality, which
serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical
environment, including natural and human factors.”42 One key provision
is article 6, which provides that a GI protected in one country can never
become generic in another country.43 The Lisbon Agreement also extends protection to false GIs in translated form and prohibits the use of
indications paired with approximation terms.44
The Lisbon Agreement only protects GIs to the extent they are protected in the country of origin.45 As a result, the impact of the Lisbon
Agreement’s GI protection is limited because many national legislatures
have been unwilling to enact legislation enforcing added GI protection.46
The lack of any restriction in article 6 on the classification of generic
terms as GIs has also caused countries to be wary of joining the Lisbon
39. See WIPO, Treaties and Contracting Parties, Madrid Agreement, http://www.
wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=1884&end_year=200
7&search_what=C&treaty_id=3 (last visited Feb. 10, 2008); AUDIER, supra note 17, at
11–12.
40. See Arcelia Quintana-Adriano, Legal Mercantile Evolution from the Twentieth
Century to the Dawning of the Twenty-first Century, 42 TEX. INT’L L.J. 831, 832 (2007).
41. AUDIER, supra note 17, at 11.
42. Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration art. 2(1), Oct. 31, 1958, 923 U.N.T.S. 205, available at http://www.
wipo.int/lisbon/en/legal_texts/lisbon_agreement.htm [hereinafter Lisbon Agreement].
43. Id. art. 6.
44. AUDIER, supra note 17, at 11.
45. WATAL, supra note 30, at 265.
46. DINWOODIE ET AL., supra note 28, at 319.
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Agreement.47 Consequently, despite having been open to membership
worldwide, there are only twenty-six contracting parties to the Lisbon
Agreement.48
II. TRIPS PROVISIONS ON GIS
A. The Foundation of TRIPS and the Establishment of its GI Provisions
In the decades following the Lisbon Agreement, counterfeiting, imitation, and use of false indications of origin expanded.49 As a result, the EC
was determined to enhance GI protection during the Uruguay Round.50
Unlike other IP topics negotiated during the Uruguay Round, the battle
over GIs was not between developed countries on one side and developing and less developed countries on the other.51 Instead, it was a battle
primarily between “new world” countries such as the United States, Canada, Australia, and many Latin American countries and “old world”
countries in Europe.52
In obvious self-interest, European countries, acting through the EC,
sought to expand protection for GIs.53 However, the new world countries,
which also happened to be some of the world’s leading agricultural exporters, also acted in self-interest by opposing the expansion of GI protection.54 The new world countries asserted that the terms immigrants
brought with them from Europe had become generic and should not be
protected since the terms were no longer associated with the regions in
which they had originated.55 The battle over GIs, particularly disagree47. Id.
48. See WIPO, Treaties and Contracting Parties, Lisbon Agreement, http://www.
wipo.int/treaties/en/ShowResults.jsp?country_id=ALL&start_year=1884&end_year=200
7&search_what=C&treaty_id=10; AUDIER, supra note 17, at 11–12.
49. AUDIER, supra note 17, at 12.
50. See GATT Negotiating Group on Trade-Related Aspects of Intellectual Property
Rights Including Trade in Counterfeit Goods, Guidelines Proposed by the European
Community for the Negotiations on Trade-Related Aspects of Intellectual Property
Rights, MTN.GNG/NG11/W/16 (Nov. 20, 1987) [hereinafter Guidelines Proposed by the
EC]; GATT Negotiating Group on Trade-Related Aspects of Intellectual Property Rights
Including Trade in Counterfeit Goods, Submissions from Participants on Trade Problems
Encountered in Connection with Intellectual Property Rights, MTN.GNG/NG11/W/7
(May 29, 1987).
51. DINWOODIE ET AL, supra note 28, at 321–22.
52. Id.; Irene Calboli, Expanding the Protection of Geographical Indications of Origin Under TRIPS: “Old” Debate or “New” Opportunity?, 10 MARQ. INTELL. PROP. L.
REV. 181, 195 (2006).
53. See Guidelines Proposed by the EC, supra note 50.
54. See Montén, supra note 10, at 334.
55. Calboli, supra note 52, at 197–98.
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ment over heightened protection for wines and spirits, proved to be one
of the principal obstacles to the conclusion of TRIPS.56 Ultimately, a
compromise was reached and TRIPS entered into force on January 1,
1995 as a part of the WTO Agreement. In stark contrast to the Lisbon
Agreement, the vast majority of the world’s countries have agreed to
TRIPS.57
TRIPS was drafted to promote harmonization in the IP realm. The
benefit of such harmonization is that “reducing the disparities between
national laws will reduce the cost, time, and uncertainty involved in determining and/or acquiring rights, thus reducing barriers to innovation
and to global trade.”58 Furthermore, TRIPS was intended to prevent three
specific abuses of GIs: (1) the use of false or misleading GIs; (2) the registration of GIs as trademarks; and (3) the degeneration of GIs into generic terms.59 Although TRIPS has ambitious goals for GI protection, it
provides minimum enforceable standards and does not “dictate the system that WTO Members must implement to protect GIs.”60
GI protection under TRIPS can be broken down into three generally
stated topics. First, TRIPS requires that WTO members provide certain
minimum protections for all GIs. Second, it affords an elevated level of
protection to wines and spirits. Third, it defines certain special circumstances in which no protection is required.
B. Article 22: General Protection
Article 22 states the minimum protection that must be provided for all
GIs.61 TRIPS defines GIs as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good
is essentially attributable to its geographical origin.”62 TRIPS does not
define the term “good.”63 However, even when the Paris Convention was
56. DINWOODIE ET AL., supra note 28, at 321–22.
57. There are 150 countries that are members of the WTO (there are 151 members,
including the EC). WTO, Understanding the WTO, Members, http://www.wto.org/
english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Mar. 5, 2008).
58. Graeme B. Dinwoodie, The Integration of International and Domestic Intellectual
Property Lawmaking, 23 COLUM.-VLA J.L. & ARTS 307, 308 (2000).
59. DINWOODIE ET AL., supra note 28, at 329.
60. Statement of Jon W. Dudas, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office,
Before the H. Comm. on Agriculture, 108th Cong. (2003), available at http://www.
ogc.doc.gov/ogc/legreg/testimon/108f/dudas0722.htm.
61. Hughes, supra note 24, at 314.
62. TRIPS art. 22(1).
63. AUDIER, supra note 17, at 16.
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concluded, it was accepted that IP rights attach to all kinds of products.64
Thus, under TRIPS, GIs apply to all goods, whether they are natural, agricultural, or manufactured.65
In order to establish a GI under TRIPS, “‘a given quality, reputation or
characteristic’ must link the goods to their place of origin.”66 These attributes may establish a good’s origin individually or in combination.67
Thus, protection applies to GIs on goods even when the goods are only
identified with an area by reputation.68 GIs are not limited to words;
therefore, images and packaging could be classified as GIs.69 GIs do not,
however, apply to services.70
A complainant must satisfy three elements in order to establish the violation of a GI under article 22(2)(a), provided the good at issue is not a
wine or spirit.71 First, the presentation of the good must suggest origination in a particular geographical area.72 Second, the good must not come
from the region suggested by the indication of origin.73 Finally, the representation of origin must be misleading.74 However, there are situations
in which exceptions preclude GI protection even if the three-part test is
satisfied.
Article 22(4) ensures that a true but possibly deceptive indication may
not diminish the value of a valid GI.75 For example, renaming the Napa
Valley region “Burgundy” would not be permissible under article
22(4).76 Article 22(4) also applies to geographical homonyms, which are
prevalent in countries where immigrants have named new regions after
those in their homeland.77
C. Article 23: Extra Protection for Wines and Spirits
Article 23 provides an additional layer of protection for wines and spirits. Regardless of consumer confusion, an inaccurate indication of origin
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
Id.
Id.
Id. at 17.
Id.
WATAL, supra note 30, at 267.
Hughes, supra note 24, at 314.
DINWOODIE ET AL., supra note 28, at 323.
Hughes, supra note 24, at 316.
TRIPS art. 22(2)(a).
Id.
Id.
DINWOODIE ET AL., supra note 28, at 324.
Id.
AUDIER, supra note 17, at 22.
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amounts to a per se violation of GI protection for wines and spirits.78
Thus, a complainant only needs to satisfy two components under article
23: the presentation of the good must suggest origination in a particular
geographical area, and the good must not actually originate in that geographical area. Article 23 also provides wines and spirits with GI protection against GIs in translated form and indications of origin paired with
approximation terms.79
D. Article 24: Exceptions
The scope of GI protection provided in articles 22 and 23 is curtailed
by the exceptions in article 24.80 The first two exceptions are grandfather
clauses. First, article 24(4) provides an exception to the protection of a
GI for wines or spirits that originated in one country if the GI was “used .
. . in a continuous manner” in another county either (1) for at least ten
years before the date TRIPS was concluded (April 15, 1994), or (2) in
good faith prior to the same date.81 Second, article 24(5) permits a country to avoid invalidating any trademark comprising a GI if rights in that
trademark developed prior to (1) the date of TRIPS’s entry into force in
that country, or (2) the protection of the GI in its country of origin.82
Article 24(6) removes the obligations of articles 22 and 23 for terms
that are generic.83 A term is generic if “the relevant indication is identical
with the term customary in common language as the common name for
such goods or services in the territory of that Member.”84 This exception
exists when a geographical term is identified with a particular product as
opposed to a geographical area because consumers do not perceive a link
between the product and the identified region.85 Each member country
determines whether a term is generic (for its internal protection of GIs)
based upon the term’s customary usage within that country.86 This practice allows for considerable deterioration of GI protection.87 The United
States, for example, has made considerable use of article 24(6) in its denial of GI protection.88
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
TRIPS art. 23(1).
Id.
See DINWOODIE ET AL., supra note 28, at 327–29.
TRIPS art. 24(4).
Id. art. 24(5).
Id. art. 24(6).
Id.
DINWOODIE ET AL., supra note 28, at 324.
See TRIPS art. 24(6).
See WATAL, supra note 30, at 270.
Id. at 270–71.
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Article 24(9) states that members are not obligated to protect GIs that
are not protected in their country of origin.89 Thus, if a GI is not protected in its home country, the GI’s protection under TRIPS is optional.90
However, the existence of GI protection at home does not automatically
create a right to protection in other countries.91
E. The Debate over Future Negotiations
The TRIPS provisions for GIs represent a hard-fought compromise that
leave many issues unresolved.92 Both the United States and the EC were
unwilling to budge in the GI debate.93 In order to overcome disagreements and enact TRIPS, these parties agreed to several statements in the
GI provisions that obligate members to negotiate certain matters in the
future.94 This was an acceptable compromise under which the United
States did not have to concede too much ground to the EC, and the EC
was assured of built-in negotiations during which it could work towards
expanding GI protection.95
Three provisions of TRIPS require future negotiations on GIs. First, article 23(4) requires member states to negotiate “the establishment of a
multilateral system of notification and registration of geographical indications for wines.”96 Second, article 24(1) expressly obligates countries
to “enter into negotiations aimed at increasing the protection of individual geographical indications under article 23.”97 Members may not use
the exceptions in article 24(4)–(8) as a pretext for refusing to participate
in negotiations.98 Third, article 24(2) calls for a continual review of the
implementation of the TRIPS GI provisions, including negotiations on a
multilateral registration system for wines and on increased protection for
individual GIs.99
Currently, there are two primary points of contention regarding GIs:
(1) establishing a multilateral register for wines and spirits, and (2) extending the higher level of protection afforded to wines and spirits under
89. TRIPS art. 24(9).
90. AUDIER, supra note 17, at 19. This is a major shortcoming of TRIPS because
many less developed countries do not have the capacity to protect their GIs and will fail
to gain protection as a result of this provision. See id.
91. Id. at 20.
92. See Calboli, supra note 52, 189–90.
93. Id. at 182–83.
94. See Hughes, supra note 24, at 301.
95. See id.
96. TRIPS art. 23(4).
97. Id. art. 24(1).
98. See id.
99. Id. art. 24(2).
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article 23 to other goods.100 The EC supports extensive GI protection
through a wine registry and would like to extend article 23’s protection
beyond wines and spirits.101 The United States disputes both positions.102
1. Creating a Multilateral Register for Wines
Concerning the establishment of a multilateral register for wines, the
EC submitted a detailed proposal (“EC Proposal”) in June 2005 that
called for an amendment to TRIPS by means of an annex to article
23(4).103 The EC Proposal recommends a presumption of GI protection
for registered products.104 However, this presumption would not exist in
countries that lodged a reservation based on permitted grounds105 and
within a specified period.106
In response to the EC Proposal, the United States and sixteen other
countries107 submitted a “Joint Proposal” document.108 These countries
did not want to amend TRIPS.109 Instead, they proposed enacting a system in which notified GIs would be registered in a database and countries
would have the option to participate in the system.110 Participating members would have to consult the database in their protection of GIs.111
Non-participating members would be encouraged but not obliged to con-
100. WTO, Geographical Indications, Background and the Current Situation,
http://www.wto.org/english/tratop_e/TRIPs_e/gi_background_e.htm (last visited Feb. 10,
2008) [hereinafter WTO, Geographical Indications]; WTO, Geographical Indications:
Communication from the European Communities, TN/IP/W/11 (June 14, 2005).
101. THOMAS COTTIER, TRADE AND INTELLECTUAL PROPERTY PROTECTION IN WTO
LAW 486 (2005).
102. See id. at 488.
103. WTO, Geographical Indications, supra note 100.
104. COTTIER, supra note 101, at 487.
105. WTO, Geographical Indications, supra note 100.
106. Failure to make a reservation within this timeframe would act as a statute of limitations, preventing a country from refusing protection after the term was registered. See
id.
107. The other countries were Argentina, Australia, Canada, Chile, Colombia, Costa
Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Japan, Namibia,
New Zealand, Philippines, and Chinese Taipei. COTTIER, supra note 101, at 488 n.145.
108. Id.
109. See id.
110. Council for Trade-Related Aspects of Intellectual Property Rights, Proposal for a
Multilateral System for Notification and Registration of Geographical Indications for
Wines and Spirits Based on Article 23.4 of the TRIPS Agreement, paras. 2, 4, TN/IP/W/5
(Oct. 23, 2002).
111. Id. para. 3.
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sult the database.112 Presumably, some countries would elect not to participate.
Hong Kong entered a “Compromise Proposal” under which a registered term would have a less extensive presumption than under the EC
Proposal.113 The presumption, however, would apply solely in those
countries that elected to participate in this compromise system.114 Therefore, the Compromise Proposal suffers from the same opt-out limitation
as the Joint Proposal. Despite the Compromise Proposal, no compromise
has been achieved, and it does not appear that any compromise is imminent.115
The EC Proposal is the best option. As mentioned above, article 23(4)
calls for negotiating “the establishment of a multilateral system of notification and registration of geographical indications for wines.”116 It would
be against the letter and spirit of TRIPS to settle for the creation a register that could be opted out of by several of the largest economies. Instead, article 23(4) should be interpreted to encourage its members to
create a binding registration system that affords full protection for the
GIs of wines.
2. Extending the Higher Level of Protection for Wines and Spirits to
Other Goods
While article 23(4) sets forth a negotiations agenda, it does not call for
negotiations on the expansion of protection outside of wines and spirits.117 The EC claims that TRIPS requires negotiations on including highquality products in a multilateral register.118 Moreover, the EC argues
that the Doha Declaration provides a mandate for such negotiations.119
Although there may be arguments in favor of expanding article 23’s protections beyond wines and spirits, there is insufficient support for the
EC’s position.120
Prior to the 2003 Cancun Ministerial Conference, the EC introduced a
list of forty-one geographical terms for which it sought TRIPS protection
112. Id.
113. WTO, Geographical Indications, supra note 100.
114. Id.
115. Becki Graham, TRIPS: Ten Years Later: Compromise or Conflict over Geographical Indications, 2005 SYRACUSE SCI. & TECH. L. REP. 4.
116. TRIPS art. 23(4).
117. COTTIER, supra note 101, at 481.
118. Id. at 482.
119. WTO, Geographical Indications, supra note 100.
120. In fact, article 24(1) only mentions negotiating increased protection for GIs “under Article 23,” which covers only wines and spirits. TRIPS arts. 23, 24(1).
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as non-generic GIs.121 This list—which contained many famous names of
cheeses and wines, such as Gorgonzola, Mozzarella, Bordeaux, and
Champagne—was characterized by the EC as a “recuperation” of the
names.122 However, it is informally known as the “claw back” list.123 Ultimately, the Cancun Ministerial Conference collapsed under unrelated
matters124 and no progress was made on GIs. Regardless, it is unlikely
the United States would have agreed to the claw back list.125
III. U.S. AND EC PROTECTION OF GIS
The vastly different ways in which the United States and the EC approach IP rights exacerbates the GI debate. The U.S. IP system is driven
primarily by an economic philosophy that gives inventors an incentive to
create by allowing them to gain financial rewards by protecting their
works.126 Meanwhile, in relation to the United States, EC IP law emphasizes natural rights and the “importance of reputation and noneconomic
aspects of intellectual property.”127
A. U.S. Protection of GIs
1. U.S. Protection of Foodstuffs
Within the United States, GIs are protected by trademarks.128 Trademarks are part of the United States’ unfair competition law, within which
the Lanham Act is the primary statute governing GI protection of foodstuffs.129 The Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof . . . used by a person . . . to
identify and distinguish his or her goods . . . from those manufactured or
sold by others and to indicate the source of the goods.”130
121. Hughes, supra note 24, at 323.
122. Id.
123. Id.
124. Peter K. Yu, The International Enclosure Movement, 82 IND. L.J. 827, 891
(2007).
125. See Molly Torsen, Apples and Oranges (and Wine): Why the International Conversation Regarding Geographical Indications is at a Standstill, 87 J. PAT. &
TRADEMARK OFF. SOC’Y 31, 51 (2005).
126. See ROBERT P. MERGES ET AL., INTELLECTUAL PROPERTY IN THE NEW
TECHNOLOGICAL AGE 11 (3d ed. 2003).
127. Id. at 5.
128. United States Patent & Trademark Office, Geographical Indication Protection in
the United States, http://www.uspto.gov/web/offices/dcom/olia/globalip/pdf/gi_system.
pdf (last visited Feb. 10, 2008).
129. See 15 U.S.C. § 1052(e) (2006).
130. Id. § 1127.
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There are two key objectives of the U.S. trademark system: the protection of merchants and manufacturers who are legitimate trademark holders, and the protection of consumers.131 Legitimate trademark holders
need protection against misappropriation, which arises when other parties attempt to sell their products as if they were produced by the trademark holder.132 U.S. trademark law is designed to protect consumers
from confusion in the marketplace by ensuring they are not made to believe that unrelated products actually come from the same producer.133
Although the U.S. trademark system does provide GIs with protection,
this protection is lost if the trademark becomes generic.134 A trademark is
generic when it “ceases to serve its function of identifying the source
(and quality) of the product or service.”135 Once a trademark becomes
generic, it can be used to describe any good with similar qualities or
characteristics.136
2. U.S. Protection of Wines and Spirits
The United States affords higher protection for wines and spirits under
the system of “certificates of label approval” governed by the Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”).137 The ATF labeling provisions “prevent deception of the consumer, . . . provide the consumer with adequate information as to the identity and quality of the
product, and . . . prohibit false or misleading statements.”138 ATF allows
producers to use generic terms with impunity; ATF provisions are likewise lenient with “semi-generic” terms, as long as the label also indicates
the true appellation of origin.139 The allowance for semi-generic terms,
which includes Champagne, Port, and Chablis, is particularly maddening
for EC wine producers.140
131. Ivy Doster, A Cheese by Any Other Name: A Palatable Compromise to the Conflict Over Geographical Indications, 59 VAND. L. REV. 873, 888 (2006).
132. Id.
133. Id.
134. See Committee on Trademarks and Unfair Competition, 21st Century Trademark
Basics, 55 THE RECORD OF THE ASS’N OF THE BAR OF THE CITY OF N.Y. 663, 676 (2000).
135. Id. at 677.
136. See id.
137. WATAL, supra note 30, at 271.
138. Labeling and Advertising Regulations Under the Federal Alcohol Administration
Act, 49 Fed. Reg. 31,667, 31,668 (Aug. 8, 1984) (to be codified at 27 C.F.R. pts. 4, 5, 7).
139. 27 C.F.R. 4.24(a)(1)–(b)(1).
140. See Frances G. Zacher, Pass the Parmesan: Geographic Indications in the United
States and the European Union—Can There Be Compromise?, 19 EMORY INT’L L. REV.
427, 441 (2005).
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Both the Lanham Act and the ATF provisions have significant loopholes that allow the United States to avoid strong enforcement of GI protection.141 The EC has urged the United States to eliminate these loopholes, which allow the alleged misappropriation of European GIs.142
B. EC Protection of GIs
Rather than using trademarks to cover GI protection, the EC provides
protection specifically geared to GIs.143 Trademarks and GIs often overlap and perform similar functions.144 However, a registered trademark
does not always provide protection that is coextensive with that of a registered GI. Trademarks grant monopolistic IP rights to a single owner.145
In contrast, GIs grant protection to all of the qualified goods produced
within a particular geographical region.146 For example, rather than being
owned by a single entity, as would be the case with a trademark, the GI
of Parmigiano-Reggiano is controlled by about six hundred producers of
the cheese, all of which are located within a specific region of Italy.147
Furthermore, the primary objective of GI measures in the EC is to assist
the producer through protection of the economic value inherent in GIs,148
unlike trademarks, which not only protect rights owners, but function to
prevent consumer confusion.149
1. EC Protection of Foodstuffs
On July 14, 1992, through Council Regulation (EEC) No. 2081/92
(“Regulation 2081/92”), the EC established a register for agricultural
products and foodstuffs that qualify for GI protection.150 Regulation
141. See id. at 439–40.
142. Id. at 440.
143. See Lasse A. Søndergaard Christensen & Janne Britt Hansen, A Contrast With
Trade Mark Law: The Permitted Use of Geographical Indications, in TRADE MARKS AT
THE LIMIT 35 (Jeremy Phillips ed., 2006).
144. Id. at 34.
145. See WATAL, supra note 30, at 263.
146. Id.
147. See Sheila Keating, Parmigiano-reggiano, THE TIMES (London), Oct. 8, 2005,
Times Magazine, at 75.
148. See EU Committee for Geographical Indications, Why Do Geographical Indications Matter to Us?, http://www.eucgi.eu (last visited Feb. 10, 2008) [hereinafter Why Do
Geographical Indications Matter to Us?].
149. See supra note 131 and accompanying text.
150. See Council Regulation (EEC) No. 2081/92, 1992 O.J. (L 208) 1 [hereinafter
Regulation 2081/92].
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2081/92 extends to foodstuffs produced and processed in a particular
region.151
Registration of a GI in the EC requires national recognition of the GI
and subsequent verification by the European Commission.152 Generic
terms may not be registered in the EC.153 The entire EC decides whether
a candidate GI is generic.154 Once a GI is registered, all producers within
the particular region who meet certain standards are granted the right to
associate the GI with their products.155 In the EC, prior trademarks do not
enjoy primacy over GIs, as provided for by the grandfather clause in article 24(5) of TRIPS.156 Rather, a trademark and a GI for the same term
may co-exist.157
Regulation 2081/92 grants extensive power to GI holders to prohibit all
practices that take unjustified advantage of a GI’s reputation.158 Consequently, the EC’s GI protection is stronger and more specifically tied to
geographical terms than U.S. trademark law. This stronger protection
reflects European cultural values, and the national pride and traditions of
European citizens.159
2. EC Protection of Wines and Spirits
Council Regulation (EEC) No. 2392/89 (“Regulation 2392/89”) protects the use of GIs for wines and spirits.160 It prohibits the use of labeling that is “incorrect or likely to cause confusion” about origin.161 Regulation 2392/89 also prevents the unauthorized use of GIs, and places GI
protection above regular trademark protection.162 It has not been the subject of much controversy.163
151. Christensen & Hansen, supra note 143, at 35.
152. Id. at 35–36.
153. Regulation 2081/92, supra note 150, art. 3, at 3.
154. Christensen & Hansen, supra note 143, at 40.
155. Id. at 36.
156. Montén, supra note 10, at 324.
157. Id.
158. See Regulation 2081/92, supra note 150, art. 13, at 6.
159. In contrast, American consumers do not attach as much importance to GIs as evidence of specific product characteristics as their European counterparts do. See Why Do
Geographical Indications Matter to Us?, supra note 148.
160. See Council Regulation (EEC) No. 2392/89, 1989 O.J. (L 232) 13.
161. Id. art. 40, at (L 232) 35.
162. Id. pmbl.
163. See Zacher, supra note 140, at 442.
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C. The Budweiser Case
The Budweiser Case, the leading WTO case on GIs, involved a Czech
brewer, Budejovicky Budvar, who fought against Anheuser-Busch Companies’ (“Anhesuer-Busch”) use of the trademark “Budweiser” within
the EC.164 Budejovicky Budvar brewed a beer under the EC-registered
GI “Budejovicky,” the name of a Czech town. The German translation
for Budejovicky is “Budweiser.”165 Since translations of GIs are protected under Regulation 2081/92,166 the EC argued that Anheuser-Busch
could no longer use the name “Budweiser” within the EC.167 The United
States countered by arguing that its trademark had been in existence prior
to the registration of the “Budejovicky” GI, and that its existing trademark rights within the EC should not be undermined by a subsequent
GI.168
Interestingly, when the WTO Dispute Settlement Body (“DSB”) rendered its decision on March 15, 2005, both the EC and the United States
claimed victory.169 The DSB panel concluded that Anheuser-Busch could
continue to use its “Budweiser” trademark in the EC.170 Furthermore, the
panel recommended that the EC amend Regulation 2081/92 to render it
TRIPS compliant by allowing equal registration access for foreign GIs.171
Despite these case-specific adverse holdings, it appears the EC gained
the more favorable holding on GI policy.172 The DSB holding substantiated the EC’s underlying assertion that heightened GI protection for agricultural products is permissible on an international level.173 Furthermore,
164. See Panel Report, European Communities—Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS174/R (Mar. 15,
2005) [hereinafter Budweiser Case].
165. Eva Gutierrez, Geographical Indicators: A Unique European Perspective on Intellectual Property, 29 HASTINGS INT’L & COMP. L. REV. 29, 47 (2005).
166. Regulation 2081/92, supra note 150, art. 13(1)(b), at 6.
167. See Budweiser Case, supra note 164, ¶ 6.30.
168. See id. ¶ 6.31.
169. The United States Trade Representative said the WTO’s holding in the Budweiser
Case supported the U.S. assertion that prior trademark rights are superior to GIs.
Gutierrez, supra note 165, at 48. The ruling also supported the EC’s position because it
“upheld the EU system of granting increased GI protection to agricultural products, and
recognized that GI protection can coexist with trademark protection, as two separate
forms of IP.” Id.
170. See Budweiser Case, supra note 164, ¶ 8.1(c).
171. See id. ¶ 8.5. In order to be registered within the EC, a GI had to be protected by a
GI system in its home country. Therefore, Council Regulation 2081/92 violated national
treatment requirements because, in practice, a GI could only be protected if its home
country had a GI system comparable to the EC’s.
172. See id. ¶ 7.755.
173. Gutierrez, supra note 165, at 49.
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the panel stated that article 24(5) allows for the coexistence of trademarks and GIs, and acts as the “boundary” between trademarks and
GIs.174
IV. WHAT THE UNITED STATES WILL NOT LOSE AND WHAT IT STANDS
TO GAIN
Unfortunately, the United States has not been inclined to make concessions to the EC on GIs.175 However, the downside to enhanced GI protection is not as great as the United States has claimed, and there are several
ways the United States would benefit from enhanced GI protection.
A. The Potential Losses Are Exaggerated
Although the United States has presented a parade of horribles to describe the effects of strong GI protection,176 it is important to note that
the United States does have valid concerns about the expansion of GI
protection, particularly for terms already considered generic in the
United States. Concerns about consumer confusion and increased marketing and labeling costs are warranted. Likewise, U.S. producers are
reasonably concerned that Europeans would be able to free ride on decades of marketing and product name familiarity generated by American
companies.177 However, these concerns are often taken too far with
claims that strong GI protection would result in EC producers’ monopolization of GI products178 and “create gridlock and confusion in U.S. supermarket aisles.”179 Therefore, before delving into ways in which the
United States would benefit from enhanced GI protection, it is necessary
to demonstrate how the United States has exaggerated the losses that
would result from such protection.
1. The Transition Period
The harm from consumer confusion and lost sales would be
mitigated by allowing companies sufficient time to adjust the names of
their GI-infringing products. For example, the EC provides for transi-
174. Budweiser Case, supra note 164, ¶ 7.583.
175. See, e.g., Torsen, supra note 125, at 52.
176. See Cox, supra note 11.
177. See Zacher, supra note 140, at 434. For example, “[p]armesan cheese is not on the
tip of everyone’s tongue because of anything anyone in Parma, Italy, ever did.” Id. Thus,
the United States believes it would be unfair to grant these producers exclusive rights to
the term. See id.
178. Montén, supra note 10, at 340.
179. Cox, supra note 11.
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tional periods of between five and fifteen years.180 This additional time
would allow companies to sell the remainder of their GI-infringing products, come up with new product names, and design new product labels.
Furthermore, companies could also make use of this time by reeducating
the public as to the name of their products through advertising and product labeling.181 In short, a transition period would mitigate the harmful
effects of enhanced GI protection by allowing consumers and producers
to adjust.
2. The One-Time Cost
The amount of harm that would result from increased GI protection
would also be limited because the re-naming of a product would only
occur once.182 After producers adjusted to the enhanced protection for
GIs, the costs would not recur.183 Although the adjustment costs could be
significant, they would not necessarily amount to a loss in market share,
which would be much more debilitating.
3. The Existence of Other Factors for Product Identification
A product’s name is far from the be-all, end-all of product identification. Other factors, such as the product’s packaging, labeling, store
placement, and actual appearance, can be key determinants in helping a
consumer locate a specific product. For example, a consumer could still
find Kraft Parmesan Cheese by looking for a green cylindrical can with a
“Kraft” label near the spaghetti and spaghetti sauce, regardless of
whether the can actually says “Parmesan Cheese” on it. Moreover, the
product composition itself would remain the same, so consumer satisfaction would not be compromised.
4. The Advantage of Low-Priced Goods Would Persist
Even with strong GI enforcement measures, domestic companies’
mass-produced items would still enjoy economies of scale and accompa-
180. If an unregistered GI has been in existence for at least twenty-five years, it will be
provided with a maximum transition period of fifteen years. Council Regulation (EC) No.
692/2003, para. 12, 2003 O.J. (L 099) 1 (amending Regulation 2081/92) [hereinafter
Regulation 692/2003].
181. New labels could be phased in during a transition period to mitigate consumer
confusion. Transitional labels could incorporate both the GI and the new product name to
educate consumers.
182. See Aaron C. Lang, Note, On the Need to Expand Article 23 of the TRIPS Agreement, 16 DUKE J. COMP. & INT’L L. 487, 509 (2006).
183. Id.
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nying price advantages over European GI-protected products.184 Thus,
another limitation on the parade of horribles argument is that many consumers would still choose to purchase the lower-priced, non-GIprotected product.185 Furthermore, it is not a given that GI protection
amounts to increased market share.186 For example, despite the fact that
eighty-five percent of French wine exports incorporate protectable GIs,
in the past few years, French wines have lost market share in North
America and the United Kingdom to countries with much weaker GI protection. 187
5. The Administrative Costs Are Exaggerated
U.S. policymakers have also argued that the extra administrative costs
for a GI system would be too high.188 However, the United States has
exaggerated the burden that such costs would impose. The administrative
costs “would be negligible in comparison with the costs of implementing
the obligations of the Uruguay Round.”189 These additional administrative costs complained of by the United States are normal for any multilateralization of IP rights and are no different from what the United
States expects many other countries to spend on IP enforcement matters.
6. The Monopoly Concerns Are Unreasonable
Concerns that extended GI protection would result in EC monopolization of certain items are unreasonable.190 Although a region’s producers
would gain an oligopoly over the name embodied in a GI,191 non-regional
producers could continue producing the same products they now offer.192
“Rather than leading to monopoly, consumers would be free to choose
184. See Kal Raustiala & Stephen R. Munzer, The Global Struggle over Geographic
Indications, 18 EUR. J. INT’L L. 337, 348 (2007).
185. See Doster, supra note 131, at 898.
186. See Hughes, supra note 24, at 346.
187. Id.
188. See, e.g., Montén, supra note 10, at 340.
189. Felix Addor & Alexandra Grazioli, Geographical Indications Beyond Wines and
Spirits: A Roadmap for a Better Protection for Geographical Indications of Origin in the
WTO TRIPs Agreement, 5 J. WORLD INTELL. PROP. 865, 887 (2002).
190. See David R. Downes, How Intellectual Property Could Be a Tool to Protect
Traditional Knowledge, 25 COLUM. J. ENVTL. L. 253, 271 (2000) ([G]eographical indications . . . do not confer a monopoly right over the use of certain information, but simply
limit the class of people who can use a specific symbol. . . . They are designed to reward
goodwill and reputation created or built up by a group of producers over many years . . . .
In this sense, they can operate to maintain traditional knowledge and practices.”).
191. See id.
192. Calboli, supra note 52, at 199–200.
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between a product from a given region with a given GI, and a similar
product that does not originate from the same region.”193 Such a scenario
would be good for competition and allow products to “compete on their
own merits.”194
B. Benefits to the United States
The United States often focuses on the economic losses that would result from enhanced GI protection.195 Rarely, however, does the United
States acknowledge the domestic benefits that would arise from enhanced GI protection.
1. Creation of GI Assets
a. Worldwide Protection of Existing GIs
If the scope of TRIPS were expanded, existing U.S. products such as
Florida oranges, Idaho potatoes, Vidalia onions, and Washington State
apples would gain international protection.196 This would certainly be
preferable to the existing international protection of U.S. GIs. As indicated earlier, TRIPS often provides limited protection or no protection at
all for GIs.197
b. Creation of New GIs
In addition to protecting existing GIs, many regions within the United
States could establish and register their own new GIs.198 Thus what is
often perceived as a competitive disadvantage could actually develop
into a fertile opportunity.199 GIs would be particularly useful for U.S.
food producers due to their creation of a sense of place.200 Because a GI
is indicative of the place from which it derives, it imparts notions of
quality and locality to the products it is attached to, distinguishing those
products from mass-produced alternatives.201 Moreover, GIs capitalize
193. Montén, supra note 10, at 344.
194. Id. at 344–45.
195. See, e.g., Statement of Jon W. Dudas, supra note 60.
196. See Calboli, supra note 52, at 200 (arguing that expanded GI protection could
assist local agricultural interests in new world countries).
197. See supra Part II.D.
198. See Doster, supra note 131, at 899.
199. Calboli, supra note 52, at 201.
200. See Torsen, supra note 125, at 31.
201. COTTIER, supra note 101, at 480.
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on the consumer trend of purchasing “lower volume niche or specialty
products” in lieu of commonplace, mass-produced items.202
The Australian wine industry exemplifies the benefits of creating new
GIs.203 Australia signed a bilateral agreement with the EC in 1994 and
agreed to stop using European regional names to describe wines.204
Rather than decreasing the competitiveness of Australian wine, the
agreement led to “the making of the Australian wine industry.”205 Australia relied on its own regional names and product quality to become “the
world’s most dynamic wine industry.”206 In the 1990s, Australia’s wine
exports boomed, growing five-fold over the course of the decade.
2. GI Protection as a Bargaining Chip
It may be unrealistic to expect the United States to agree with the EC’s
position on GIs without the United States receiving some sort of immediate benefit. A monetary contribution to the United States and other
similarly situated countries would likely be cost prohibitive.207 Rather
than pressing for a payment scheme, the United States should consider
fully adopting the EC’s position on GI matters in exchange for significant reductions in the EC’s agricultural subsidies and tariff rates. In
short, if the EC is truly serious about GI protection, at minimum it should
agree with the United States’ Portman Proposal to reduce EC agricultural
tariffs and subsidies.208 The EC has received harsh criticism for its agricultural protectionism and maintains an increasingly untenable position.209 Likewise, the United States is much maligned for its opposition
to GI expansion, as criticism of the United States is increasing among
developing and less developed countries.210 Consequently, these points
would be fertile ground for negotiation, concession, and agreement
A U.S.-EC agreement could contemplate an IP-for-agriculture swap,
not unlike the Uruguay Round’s “Grand Bargain.”211 Although GIs fall
202. Id.
203. See Calboli, supra note 52, at 200–01.
204. Id.
205. Id. at 201; Protecting Names, ECONOMIST, Aug. 2, 2003, at 49.
206. Calboli, supra note 52, at 201; Protecting Names, supra note 205.
207. Zacher, supra note 140, at 462. In addition, it would be difficult to calculate what
a reasonable payoff would be.
208. In reality, the EC’s offer in response to the Portman Proposal fell short of expectations. Sungjoon Cho, Doha’s Development, 25 BERKELEY J. INT’L L. 165, 173 (2007).
209. Hughes, supra note 24, at 344. The pressure to lower subsidies in the EC is not
only international, but is also strongly applied by constituencies within the EC. Id.
210. See Calboli, supra note 52, at 195.
211. See Frank J. Garcia, Beyond Special and Differential Treatment, 27 B.C. INT’L &
COMP. L. REV. 291, 297 (2004).
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within IP, they could easily be categorized under agriculture, because the
majority of GIs involve the IP protection of agricultural products. Consequently, a U.S.-EC agreement could actually be characterized as an
agriculture-for-agriculture bargain. Such an agreement might be more
palatable to national legislatures, because many of the same interests
would be involved on both sides of the transaction. The EC, for its part,
has already expressed interest in an exchange of GI protection for agricultural liberalization.212 As a result, there is reason to hope that such an
exchange could take place.
3. One Less Dispute in the Doha Round
The dispute over GIs is not the cause of the Doha Round’s stalled
status.213 However, if an agreement could be reached over GIs, there
would be one less dispute in the Doha Round. Even if the EC did not
make concessions to the United States, an agreement on the expansion of
GIs could generate much-needed goodwill within the Doha Round and
contribute to the momentum that is necessary for the completion of trade
round negotiations. The advancement of the Doha Round is vital for the
United States’ economic health, as it is the country with the world’s largest trading volume.214
The United States should attempt to reach an agreement with the EC
soon because other countries are increasingly siding with the EC.215 By
reaching an agreement on GIs, the United States could avoid the costs
associated with a protracted battle over the issue. Furthermore, a multilateral GI framework could provide consistency and direction on GI matters.
4. The United States Could Increase its Credibility in the IP Realm
The United States is one of the strongest proponents for the development and enforcement of international IP rights protection.216 Meanwhile, the United States opposes the expansion of GI protection.217 Con212. COTTIER, supra note 101, at 487.
213. See Bradley M. Bashaw, Geographical Indications in China: Why Protect GIs
with Both Trademark Law and AOC-Type Legislation?, 17 PAC. RIM L. & POL’Y J. 73, 93
(2008) (stating that “[p]arties are deadlocked on greater agricultural issues”).
214. See WTO, Trade Policy Review, United States: September 2001, http://www.wto.
org/english/tratop_e/tpr_e/tp172_e.htm (last visited Mar. 5, 2008).
215. See COTTIER, supra note 101, at 484–85.
216. Michelle Agdomar, Removing the Greek from Feta and Adding Korbel to Champagne: The Paradox of Geographical Indications in International Law, 18 FORDHAM
INTELL. PROP. MEDIA & ENT. L.J. 541, 553–54 (2008).
217. Id. at 554.
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tinued resistance by the United States may send mixed signals to other
countries regarding the U.S. commitment to international IP rights.218
Developing and less developed countries may begin to believe that the
United States only seeks to multilateralize and enforce IP rights that protect its own economic interests.219 However, if the United States were to
concede to an IP measure it had argued was contrary to its interests, the
United States could gain some credibility with other countries in its push
for IP protection.
5. Improved Consumer Choice
Enhanced GI protection would allow U.S. consumers to make fully informed decisions about the products they purchase.220 Additionally, accurate labels guaranteeing the product’s origin would protect consumers.221
For example, a consumer purchasing Feta cheese could be completely
confident that they had bought the authentic Greek cheese made from
sheep’s milk, as opposed to an American cheese actually derived from
cow’s milk. Furthermore, as WTO Director-General (former European
Trade Commissioner) Pascal Lamy noted, GIs “stimulate quality and
consequently strengthen competitiveness.”222
V. ESTABLISHING A COMPREHENSIVE GI FRAMEWORK
The extension of GI protection under TRIPS would be a complex process.223 In order to more easily conceptualize the process, negotiations for
enhanced GI protection can be viewed as comprising three steps: first,
establishing a multilateral register for wines and narrowing the article 24
exceptions; second, extending the protections for wines and spirits under
article 23 to other goods; and third, including all GIs in the multilateral
register. Although these three steps are discussed in the ideal chronological order, with some hard work, all of them could be completed within
the Doha Round, provided it does not collapse.224
218. See COTTIER, supra note 101, at 485.
219. Under a retaliatory “tit-for-tat” approach, other countries might emulate the
United States by picking and choosing which IP measures to follow.
220. Doster, supra note 131, at 897.
221. Id.
222. EU/WTO: Lamy Defends Geographical Indications for Local Food Products,
EUR. REP., June 14, 2003.
223. In fact, even getting all of the WTO countries to comply with and enforce existing
TRIPS provisions would be quite a challenging task.
224. This is an admittedly ambitious, although not unreasonable, proposal for GI expansion.
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593
In order to secure expanded protection for GIs, the United States would
need to completely overhaul its negotiation strategy. Instead of dodging
the issue or downplaying the importance of GI protection, the United
States should portray GIs as a viable form of IP that must be protected.
In doing so, the United States should attempt to garner support from
other countries, especially current GI expansion opponents Argentina,
Australia, Brazil, and Canada, to join in the shift to the pro-GI expansion
group. The United States should provide a reasonable and accurate summary of losses that would be likely to arise from expanded GI protection,
rather than the exaggerated claims which have typically been advanced.225 U.S. representatives would have to remain consistent in these
efforts throughout the three-step process described below.
A. Step One: Establishing a Multilateral Register for Wines and Paring
Down the Exceptions of Article 24
The first step would be the creation of a multilateral register for wines.
This is the most reasonable point from which to launch the expansion of
GI protection since proposals have already been submitted on the topic.
Furthermore, the creation of a multilateral register for wines is expressly
provided for under TRIPS and would not require an amendment. The
register could be modeled after the 2005 EC Proposal.
In order to establish strong GI protection, article 24’s exceptions and
limitations would have to be pared down. It would be ideal to complete
this during the first step of negotiations in order to provide substance to
the wine register and the subsequent enhancements of GI protection. The
provisions within article 24(4)–(6) exclude several products with significant commercial value from GI protection. Consequently, this would be
the most controversial sub-issue in GI negotiations.
The grandfather clauses of article 24(4)–(5) would need to be eliminated. Otherwise, TRIPS would be authorizing a form of IP adverse possession in which some of the most exploited GIs would not be covered.226 With regard to generic GIs, TRIPS should be altered to adopt the
Lisbon Agreement’s bar on genericism for any GI protected within the
territory of any WTO member.227
225. See supra Part IV.A.
226. Just because Kraft originally adopted Parmigiano-Reggiano’s indication of origin
more than sixty years ago does not make it any less of an IP right appropriation than, for
instance, the illegal pirating of DVDs.
227. Lisbon Agreement art. 6. A worrisome shortcoming of such a provision, however,
as with TRIPS article 24(9), is that poorer countries’ failures to protect their own GIs
would simultaneously prohibit the multilateral protection of these GIs.
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B. Step Two: Extending the Protection of Article 23
The second step would be to amend TRIPS so that the extra protection
wines and spirits receive would be provided to all other GIs. In 2002,
thirty-seven countries supported a proposal to the WTO aimed at expanding the extra protection of article 23 to all GIs,228 reflecting a broad base
of support for such an expansion. Furthermore, this would be an appropriate second step because article 23’s provisions would not require any
complicated amendments. In short, the terminology of article 23 could
apply in toto to all GIs, rather than just wines and spirits.
In expanding enhanced GI protection to include other goods, it is important to consider the boundaries of GI protection. For example, would
restaurant menus be barred from describing a dish as “Prosciutto di
Parma” if the ham was actually from Canada? Arguably, GI protection
should include restaurant menu items because the exact same concerns
regarding IP right infringement that exist within a grocery store are present in a restaurant. However, restaurant names, such as Olive Garden
Italian Restaurant or Carlos O’Kelly’s Mexican Café, should generally
be excluded from GI protection because descriptive terms encompassing
broad culinary traditions do not embody the specific reputational characteristics that are the essence of GI protection.
C. Step Three: Extending the Multilateral Register to All GIs with a
Built-In Transitional Period
Logically, the next step would be to expand the register beyond wines.
This expansion would be facilitated by the existing wine register because
the newly registered GIs could simply be incorporated into it. Consequently, the many issues involving registration would not have to be rehashed. Moreover, if article 23’s GI protection were expanded to all GIs,
an all-inclusive registration system would be optimal.
Once this multilateral register for all GIs was established, a transitional
period to allow infringing producers time to alter their products’ names
to accommodate newly registered enhanced GIs should be provided.
Much like the implementation of the existing GI system within the EC, a
five to fifteen-year adjustment period would be appropriate for developed countries to transition.229 Due to the burden of the adjustment and
its corresponding administrative costs, developing and less developed
countries should be provided with longer transition periods.
228. COTTIER, supra note 101, at 484–85.
229. See Regulation 692/2003, supra note 180.
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CONCLUSION
The foregoing examination of the GI stalemate between the United
States and the EC prompts two main conclusions. First, the current position of the United States is unsustainable. The world is increasingly recognizing the significant IP rights entailed by GIs. Accordingly, there is
mounting pressure on the United States to agree to an expansion of GI
protection. Second, the United States could actually benefit from
stronger GI protection. Rather than focusing on the long-term benefits
that GI protection could afford, U.S. negotiation efforts have been shortsighted and focused almost exclusively on the economic losses that
would result.
Based upon the two conclusions mentioned above, it would be in the
best interests of the United States to adopt a European approach to GIs.
“To characterize the U.S.-EU trade relationship as anything less than the
most important bilateral alliance in international trade would be a gross
understatement.”230 Thus, the U.S.-EC agreement I have hypothesized
would be a step in the right direction. With some luck, it could just be the
missing ingredient in the incomplete recipe that is the Doha Round.
Justin M. Waggoner*
230. Charles W. Smitherman III, The New Transatlantic Marketplace: A Contemporary Analysis of United States-European Union Trade Regulations and Possibilities for
the Future, 12 MINN. J. GLOBAL TRADE 251, 255 (2003).
* J.D., University of Kansas School of Law (expected 2008); B.S., Kansas State University, 2005. Special thanks to my wife Laura for her inspiration and valuable insight during the preparation of this Article. Additional inspiration was provided by the excellent
meals and experiences in Paris and Aix-en-Provence, France. This Article won first prize
in the Andrew P. Vance Memorial Writing Competition, sponsored by Brooklyn Law
School and the Customs and International Trade Bar Association. Contact the Author at
[email protected].
AMENDING TRIPS: A NEW HOPE FOR
INCREASED ACCESS TO ESSENTIAL
MEDICINES
INTRODUCTION
G
lobal health has been a central concern of the international community since the creation of the United Nations.1 Despite focused
efforts by governments, regional and international alliances, and nongovernmental organizations (“NGOs”),2 a variety of obstacles continue
to thwart the attainment of acceptable health standards across the globe.3
1. For example, in 1948, the United Nations created a special agency, the World
Health Organization (“WHO”), devoted to working towards attaining the highest possible
standard of health for all peoples in the world. Over 190 countries participate in setting
international health policy and implementing programs aimed at achieving the WHO
mandate. WHO, Governance of WHO, http://www.who.int/about/governance/en/index
.html (last visited Jan. 18, 2008). Since the creation of the WHO, the international community has continually reiterated its commitment to world health by creating other organizations and programs to deal with health issues on a global scale, such as the United
Nations Children’s Fund (“UNICEF”), the United Nations Population Fund (“UNFPA”),
and the Joint United Nations Program on HIV/AIDS (“UNAIDS”). YVES BEIGBEDER,
INTERNATIONAL PUBLIC HEALTH 3 (2004). International commitment to world health is
further illustrated by the fact that non-health related entities such as the World Bank and
the World Trade Organization (“WTO”) now play a major role in financing and formulating health policy. Id. at 4–5.
2. For example, in 2003, the administration of United States President George W.
Bush launched the President’s Emergency Plan for AIDS Relief (“PEPFAR”), “a fiveyear, $15 billion, multifaceted approach to combating the disease around the world.” See
The Office of the U.S. Global AIDS Coordinator, About PEPFAR, http://www.pep
far.gov/about/ (last visited Feb. 24, 2008). In 2001, various Caribbean heads of state created The Pan Caribbean Partnership on HIV/AIDS (“PANCAP”), a coalition of public
and private national, regional, and international organizations charged with scaling up
national and regional responses to HIV/AIDS in the Caribbean. See PANCAP,
http://www.pancap.org/index.php (last visited Jan. 18, 2008). In 1972, a coalition of
“NGOs, foundations, corporations, government agencies and academic institutions”
joined together and formed the Global Health Council, whose mission is “to ensure that
all who strive for improvement and equity in global health have the information and resources they need to succeed.” See Global Health Council, Who we Are,
http://www.globalhealth.org/view_top.php3?id=25 (last visited Feb. 24, 2008).
3. These include structural and societal challenges such as severe shortages of health
workers in poor countries. See generally World Health Organization, The World Health
Report 2006—Working Together for Health (2006), available at http://www.who.int/wh
r/2006/whr06_en.pdf. On lack of access to basic sanitation and safe drinking water, see
generally World Health Organization, Meeting the MDG Drinking-water and Sanitation
Target (2006), available at http://www.who.int/water_sanitation_health/monitoring/jmp
final.pdf. Regarding inadequate research into certain diseases that are prominent but for
which there is no commercial market, see Special Rapporteur of the Commission on Human Rights on the Right of Everyone to the Enjoyment of the Highest Attainable Stan-
598
BROOK. J. INT’L L.
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One such obstacle in the fight against HIV/AIDS4 is inadequate access to
essential medicines5 in low- and middle-income countries.6 According to
a recent World Health Organization (“WHO”) study, eighty percent of
HIV/AIDS patients that live in low- and middle-income countries and are
in need of essential antiretroviral drug therapies7 do not have access to
dard of Physical and Mental Health, Mission to the World Trade Organization, ¶ 44, U.N.
Doc E/CN.4/2004/49/Add.1 (Mar. 1, 2004) [hereinafter Special Rapporteur’s Mission to
the WTO]. There are also cultural challenges such as the stigma and violence faced by
HIV positive persons that prevent many from getting tested or admitting that they are
positive. See Tina Rosenberg, When a Pill Is Not Enough, N.Y. TIMES, Aug. 6, 2006, § 6
(Magazine), at 41 (describing some cultural obstacles to AIDS prevention in Africa). In
2003, the Bill and Melinda Gates Foundation, in collaboration with others, compiled a list
of scientific and technological “grand challenges in global health” that included improving nutrition, insect, control, and vaccine delivery systems. See H. Varmus et al., Grand
Challenges in Global Health, 302 SCIENCE 398, 399 (2003).
4. HIV, which stands for human immunodeficiency virus, is a human retrovirus that
impairs the immune system over time as it replicates itself in the body. Pablo Tebas &
Mary Horgan, The Immuno-Compromised Host, in THE WASHINGTON MANUAL OF
MEDICAL THERAPEUTICS 288–89 (Charles F. Carey et al. eds., 29th ed. 1998). Eventually,
the condition leads to AIDS, the acquired immune deficiency syndrome. Id. In the final
stage of AIDS, known as full blown AIDS, “immune defenses break down completely
and secondary (opportunistic) diseases attack the body. . . . Death usually follows a few
years later.” AM. JUR., PROOF OF FACTS: ATTORNEY’S ILLUSTRATED MEDICAL DICTIONARY
at A22 (3d series, 2002). In 2006, a total of 39.5 million people were living with HIV
globally and there were 2.9 million AIDS-related deaths. Joint United Nations Programme on HIV/AIDS [UNAIDS] & World Health Organization [WHO], AIDS Epidemic Update, at 3, U.N. Doc. UNAIDS/06.29E (Dec. 2006), available at
http://www.who.int/hiv/mediacentre/2006_EpiUpdate_en.pdf. Sixty-three percent of the
world’s HIV positive population lives in sub-Saharan Africa and thirty-four percent of
the 2006 AIDS-related deaths occurred in southern Africa. Id.
5. Essential medicines are those that, according to the WHO, “satisfy the priority
health care needs of the population. They are selected [by the WHO] with due regard to
public health relevance, evidence on efficacy and safety, and comparative costeffectiveness.” Essential Medicines, http://www.who.int/topics/essential_medicines/en/
(last visited Jan. 18, 2008). The updated WHO essential medicines list is available
at http://www.who.int/medicines/publications/08_ENGLISH_indexFINAL_EML15.pdf
(last visited Jan. 18, 2008).
6. See generally WHO, Progress on Global Access to HIV Antiretroviral Therapy: A
Report on “3 by 5” and Beyond (March 2006) [hereinafter 3 by 5 Report], available at
whqlibdoc.who.int/publications/2006/9241594136_eng.pdf (reporting that the goal of a
joint WHO and UNAIDS initiative aimed at providing treatment to 3 million AIDS patients by 2005 had not been met and that treatment levels continue to be a major concern). See also infra Part I.A.
7. Antiretroviral treatments “temporarily suppress viral replication and improve
symptoms” in HIV patients. WHO, Essential Medicines, § 6.4.2 (14th ed. Mar. 2005),
available at http://whqlibdoc.who.int/hq/2005/a87017_eng.pdf. When used in the appropriate combination, they are the most effective means of suppressing HIV replication,
2008]
ACCESS TO ESSENTIAL MEDICINES
599
them.8 There are a number of factors responsible for the staggeringly low
rate of access.9 One major culprit is drug prices.10 The simple fact is that
millions across the globe continue to suffer despite the existence of medical technology to improve their lives because they or their governments
cannot afford to pay for treatment.11
Drug prices are set by the pharmaceutical companies that have invested
time and money into the research and development that leads to medical
discoveries.12 In order to make the investment worthwhile and recoup
their expenses, these companies patent their ideas. The patents give them
the power to exclude others, namely generic manufacturers, from cheaply producing and profiting from their inventions.13 Recognizing that
without the ability to patent, and therefore profit from, their intellectual
property, companies would cease the research necessary to discover
medical technology, international trade regimes seek to ensure that
pharmaceutical patents are honored across the globe rather than only in
the companies’ home countries.14 The primary instrument for enforcing
global patent protection is the Agreement on Trade-Related Aspects of
Tebas & Horgan, supra note 4, at 290, and they are considered an essential component of
HIV/AIDS treatment, Essential Medicines, supra. Their critical importance in combating
the HIV/AIDS epidemic was underscored in 2003 when the United Nations launched a
massive initiative called “3 by 5” to scale up global access to antiretroviral treatment. See
supra note 6.
8. See World Health Organization, World Health Statistics 2006, at 18 (2006) [hereinafter WHO Health Statistics], available at http://www.who.int/whosis/whostat2006/en
/index.html.
9. These include challenges associated with “partnerships, alignment, and harmonization; sustainable financing; drugs and other commodities; constraints in health systems,
including human resources; ensuring equitable access; and monitoring, evaluation and
research.” 3 by 5 Report, supra note 6, at 55.
10. See, e.g., Special Rapporteur’s Mission to the WTO, supra note 3, at 12.
11. See, e.g., id.
12. Cf. ROBERT P. MERGES, PETER S. MENELL & MARK A. LEMLEY, INTELLECTUAL
PROPERTY IN THE NEW TECHNOLOGICAL AGE 119 (3d ed. 2003) (explaining that under the
“economic incentive” theory of patent law, “absent patent protection, inventors will not
have sufficient incentive to invest in creating, developing, and marketing new products”
and that patent protection allows “the inventor to appropriate the full economic rewards
of her invention”).
13. Cf. id. at 113 (“A patent confers the right to exclude others from making, using,
selling, offering for sale, or importing the claimed invention for a specific term of
years.”). For a brief overview of the patent system, see Craig J. Madson, Patents, in THE
INTELLECTUAL PROPERTY HANDBOOK 229–60 (William A Finkelstein & James R. Simms
III eds., 2005).
14. See, e.g., Agreement on Trade-Related Aspects of Intellectual Property Rights
§ 5, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization,
Annex 1C, 33 I.L.M. 1197 (1994) [hereinafter TRIPS].
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Intellectual Property (“TRIPS”),15 which was promulgated by the World
Trade Organization (“WTO”)16 in 1994 and has been ratified by all 193
current member states.17
International policymakers, however, have not been insensitive to the
needs of sick, poor people in developing nations. TRIPS and subsequent
WTO policy resolutions do allow countries to break patents under certain
specified conditions when necessary to respond to emergencies such as a
public health crisis.18 However, these provisions, which are commonly
referred to as “flexibilities,”19 have not been successful in decreasing
drug prices and thereby increasing access to essential medicines.20 This
failure is due in large part to the fact that patent flexibilities set by the
WTO have been undermined by bilateral and multilateral free trade
agreements (“FTAs”), most prominently by those negotiated between the
United States and developing nations.21
15. Id.
16. The WTO was created in 1995 to serve as an international institution that would
carry out and promote the goals of the General Agreement on Trade and Tariffs
(“GATT”). The GATT was originally negotiated in 1948 and served as both a provisional
agreement and a provisional organization designed to promote international commerce by
establishing a liberal world trade regime. Between 1948 and 1994, this was done primarily through a series of negotiations known as trade rounds. The final trade round was the
Uruguay Round, which lasted seven and one half years and included 123 countries. The
Uruguay Round replaced GATT the organization with the WTO but maintained an updated version of GATT the agreement as the main governing document. It also adopted a
number of other agreements that established additional trade rules. These agreements are
continually revised and renegotiated at ministerial conferences. See WTO, Understanding
the WTO, 9, 14–22 (3d ed. 2005), available at http://www.wto.org/english/thewto_e
/whatis_e/tif_e/understanding_e.pdf.
17. Margo A. Bagley, Legal Movements in Intellectual Property: TRIPS, Unilateral
Action, Bilateral Agreements, and HIV/AIDS, 17 EMORY INT’L L. REV. 781, 782 (2003).
18. See TRIPS, supra note 14, art. 31; see also WTO, Doha Ministerial 2001: Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, 41 I.L.M. 755
(May 2002) [hereinafter Doha Public Health Declaration], available at
http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm (explicitly
asserting that TRIPS “does not and should not prevent Members from taking measures to
protect public health” and clarifying the exceptions to the patent rules that governments
may make for legitimate public health concerns).
19. WTO, Fact Sheet: TRIPS and Pharmaceutical Patents, http://www.wto.org
/english/tratop_e/trips_e/factsheet_pharm02_e.htm (last visited Feb. 14, 2008).
20. See Bagley, supra note 17, at 791 (explaining that TRIPS flexibilities have been
ineffective because they are rarely used).
21. See id. at 791–93; see also Margaret Chon, Intellectual Property and the Development Divide, 27 CARDOZO L. REV. 2821, 2871 (2006); Maria Julia Oliva, Intellectual
Property in the FTAA: Little Opportunity and Much Risk, 19 AM. U. INT’L L. REV. 45, 53
(2003); cf. Michael D. Birnhack, Global Copyright, Local Speech, 24 CARDOZO ARTS &
2008]
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Thus, lack of access to essential HIV/AIDS medicines because of unaffordable drug prices continues to be a world health problem. However,
this situation is more than a social tragedy; it also poses a legal dilemma.
Access to medicine is a fundamental aspect of the right to health, secured
for every person by the International Bill of Human Rights.22 On the other hand, not only do pharmaceutical companies also have intellectual
property rights that must be protected,23 patent protection is necessary for
the continued availability of drugs.24 The WTO has acknowledged these
competing interests and has made significant progress towards reaching
an appropriate balance.25 However, U.S. policy, as expressed in the
pharmaceutical patent provisions of bilateral and multilateral FTAs, fails
to adequately take the right to health into account. It secures significantly
more stringent patent protection for pharmaceuticals than provided for in
TRIPS without incorporating the necessary flexibilities that would enable
increased access to medicines for health crisis situations.26 As such, it not
only violates human rights norms, but also contradicts the WTO position.
Thus, American policy must be changed.
This Note attempts to contribute toward effecting such change by exploring mechanisms within the human rights and international trade
realms for challenging patent provisions in U.S. FTAs. Part I establishes
the practical need for change by describing the current lack of access to
essential medicines in developing nations and the legal ramifications of
inadequate access in the context of the international human right to
health. Part II discusses the impact of WTO and American trade and intellectual property polices on the accessibility of essential medicines.
Part III argues that the WTO’s recent decision to amend TRIPS has two
consequences that invalidate U.S. pharmaceutical patent policy. First, it
ENT. L.J. 491, 513–14 (2006) (describing TRIPS-plus provision in U.S. and European
multilateral agreements in the context of literary and artistic work).
22. See U.N. Econ. & Soc Council (“ECOSOC”), Comm. On Econ., Soc., & Cul. Rts
(“CESCR”), Substantive Issues Arising in the Implementation of the International Covenant On Economic, Social and Cultural Rights (General Comment No.14), ¶ 2, U.N. Doc.
E/C.12/2000/4 (May 12, 2000) [hereinafter CESCR Gen. Comment 14], available at
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument; see also
infra part I.B.
23. See TRIPS, supra note 14; see also infra part I.C.
24. See supra notes 13–14. But see Special Rapporteur’s Mission to the WTO, supra
note 3, ¶ 44 (pointing out that patent protection fails to incentivize medical research into
diseases that only affect poor countries, such as river blindness and sleeping sickness,
since the people that need such research would not be able to pay for it).
25. See supra note 18; see also Special Rapporteur’s Mission to the WTO, supra note
3, ¶ 43; see also infra part II.A.
26. See supra note 21.
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argues that the decision to amend, taken together with other historical
developments, elevates the access to essential medicines component of
the right to health to the status of customary international law. It then
explores whether the amendment will invalidate U.S. policy as a violation of the General Agreement on Trades and Tariffs (“GATT”). Finally,
The Note concludes with an assessment of the implications of these developments.
I. THE NEED FOR CHANGE
A. The Current Lack of Access
Eighty percent of people in low- and middle-income countries that
need antiretroviral therapy (“ART”) to treat HIV/AIDS do not have access to it.27 Eighty-three percent of sub-Saharan Africans and ninety-five
percent of northern Africans and Middle Easterners do not receive
needed medicines.28 In East, South, and Southeast Asia, eighty-four percent of those requiring ART do not receive it. In low- and middle-income
countries in Europe and Central Asia, eighty-seven percent do not receive ART.29 In Latin America and the Caribbean, ART coverage is better but still inadequate at sixty-eight percent.30
While these statistics represent the situation in a substantial part of the
world, they do not represent what the standard of care can be, especially
considering that ART coverage in high-income countries, such as the
United States, the United Kingdom, and France reaches above seventyfive percent.31 Also disconcerting is the fact that access to treatment is
uneven between similarly situated countries. For example, Thailand’s
coverage reaches up to sixty percent32 while in India, ART is accessible
to a mere seven percent of those that need it.33 Botswana and Uganda
have over fifty percent coverage while coverage in other sub-Saharan
countries is well below ten percent.34
One reason why essential medicines are not reaching all who need
them is their high price.35 Though prices have dropped over the last few
27. 3 by 5 Report, supra note 6, at 19.
28. Id.
29. Id.
30. Id.
31. WHO Health Statistics, supra note 8, at 37, 41.
32. Id. at 41.
33. Id. at 37.
34. 3 by 5 Report, supra note 6, at 7.
35. Id. at 29–30 (discussing drug prices in the context of access to HIV treatment and
reporting statistics establishing an inverse correlation between treatment costs and num-
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years in some low-income countries, they remain “unacceptably high in
some countries” and have remained “almost stable” in middle-income
countries.36 Additionally, drugs that have decreased in price represent
mostly first-line treatment37 while second-line treatment (used after patients develop immunities to first-line drugs38) costs are “prohibitive” in
most countries39 and vary greatly amongst countries of similar income
level.40
Brazil, where ART coverage is at eighty-three percent,41 presents a
prime example of the dramatic effect drug prices have on access to
treatment. Brazil was the first developing nation to provide universal free
AIDS treatment and has “the best anti-AIDS program of any developing
country.”42 It has been able to afford this by manufacturing generic versions of brand name drugs, thus reducing costs by up to almost half.43
Generic manufacturers have been identified favorably as contributing
to the price drops that have occurred within the last few years.44 Moreover, in addition to making cheaper and therefore more accessible drugs,
generic manufacturers are better able to serve the treatment needs of individuals in middle- and low-income countries because they provide
ber of people treated in 2003, 2004, and 2005); Special Rapporteur’s Mission to the
WTO, supra note 3, ¶ 43.
36. 3 by 5 Report, supra note 6, at 8.
37. Id. at 8–9 (reporting that in low-income countries the average cost per person per
year of two particular types of first-line treatment ranged from $148 to $549 whereas a
particular second-line regime cost an average of $1888).
38. First line treatment refers to a “preferred, standard, or first choice” drug or procedure. Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary
/first-line (last visited Feb. 28, 2008).
39. 3 by 5 Report, supra note 6, at 12.
40. Id. at 8–9 (reporting the cost of the same second-line treatment in the middleincome Ivory Coast was $1700 but $6788 in its fellow middle-income country of El Salvador).
41. Id. at 71.
42. Editorial, Brazil’s Right to Save Lives, N.Y. TIMES, June 23, 2005, at A18.
43. Brazil makes “copycat versions of expensive brand-name drugs” that were
“commercialized before 1997, when the country began to respect patents on medicines, a
requirement for joining the World Trade Organization.” Id. The system worked so well
that in June 2005, Brazil became the first country to break the patent for a previously
protected antiretroviral medicine when it announced that it would manufacture generic
Kaletra. Todd Benson, Brazil to Copy AIDS Drug Made by Abbott, N.Y. TIMES, June 25,
2005, at C12. Though WTO rules required Brazil to pay the patent holder, Abbott Laboratories, a royalty on the generic version, the Brazilian government estimated that it
would save $55 million per year. Id.
44. 3 by 5 Report, supra note 6, at 8.
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drugs in therapy combinations not supplied by brand-name manufacturers.45
B. The Right to Health: Legal Ramifications of Inadequate Access
That treatments for HIV/AIDS are available yet so many cannot access
them is a great social tragedy. However, it is also a legal dilemma. On
December 12, 1948, the General Assembly of the United Nations
adopted the Universal Declaration of Human Rights (“UDHR”).46 From
this list of principles emerged two binding treaties: the International Covenant on Civil and Political Rights (“ICCPR”)47 and the International
Covenant on Economic, Social and Cultural Rights (“ICESCR”).48 These
three documents together constitute the International Bill of Human
Rights and have enabled the modern day human rights movement.49 They
45. 3 by 5 Report, supra note 6, at 60.
46. Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d
Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 10, 1948) [hereinafter UDHR], available at
http://www.unhchr.ch/udhr/lang/eng.pdf. As a declaration, the UDHR was intended to be
“a moral and political influence on states rather than constitute a legally binding instrument.” HENRY J. STEINER & PHILIP ALSTON, HUMAN RIGHTS IN CONTEXT 138 (2000).
Nonetheless, it has had a tremendous impact on the development of international law:
[I]t has retained a place of honor in the human rights movement. No other
document has so caught the historical moment, achieved the same moral and
rhetorical force, or exerted as much influence on the movement as a whole. . . .
It proceeded to work its subversive path through many rooted doctrines of international law, forever changing the discourse of international relations on issues vital to human decency and peace.
Id. at 139 (internal citation and quotation marks omitted). The UDHR was originally
intended to give rise to a single binding convention. Id. However, due to ideological differences, two covenants, one for civil and political rights and another for social, economic, and cultural rights were created, id. at 242–45, even though the UDHR “included
both categories without any sense of separateness or priority.” Id. at 247.
47. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S.
171, [hereinafter ICCPR], available at http://www.ohchr.org/english/law/pdf/ccpr.pdf.
The rights secured by the ICCPR can be loosely classified into the following five: (1)
protection of the individual’s physical integrity (e.g., prohibitions on torture and arbitrary
deprivations of life); (2) procedural due process; (3) equal protection; (4) freedoms of
belief, speech, and association; and (5) the right to political participation. STEINER &
ALSTON, supra note 46, at 145. There are currently 160 state parties to the ICCPR. U.N.
High Comm. On Hum. Rts., Status of Ratification: ICCPR, http://www2.ohchr.org
/english/bodies/ratification/4.htm (last visited Feb. 14, 2008).
48. International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966,
993 U.N.T.S. 3, [hereinafter ICESCR], available at http://www.ohchr.org/english/law/pd
f/cescr.pdf.
49. STEINER & ALSTON, supra note 46, at 136.
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605
also officially established every individual’s right to health, thus making
access to treatment for medical illness a human rights and international
law issue.
Article 25.1 of the UDHR proclaims that “[e]veryone 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.”50 This concept is comprehensively enshrined
in and given binding effect by article 12 of the ICESCR. Section 1 of the
article defines the right and section 2 lays out the correlative governmental obligations to protect the right by providing an “illustrative, nonexhaustive” list of examples.51 Article 12 reads in relevant part:
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical
and mental health.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary
for:
...
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions, which would assure to all medical service and medical attention in the event of sickness.52
The right to health is also recognized in various other international and
regional agreements.53 None of these documents explicitly grant a right
of “access to pharmaceuticals,” however, the language of the provisions
50. UDHR, supra note 46, art. 25.1.
51. CESCR Gen. Comment 14, supra note 22, ¶ 7.
52. ICESCR, supra note 48, art. 12.
53. See International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5(e)(iv), opened for signature Mar. 7, 1966, 660 U.N.T.S. 212; Convention
on the Elimination of All Forms of Discrimination against Women, art. 11.1(f), 12, Dec.
18, 1979, 1249 U.N.T.S. 14; Convention on the Rights of the Child, art. 24, adopted Nov.
20, 1989, 144 U.N.T.S. 123; The European Social Charter, art. 11, Oct. 13, 1961, 529
U.N.T.S. 89; African Charter on Human and Peoples’ Rights, art. 16, Jan. 27, 1981, 21
I.L.M. 58. For a collection of the basic international right to health documents, see generally FRANCIOS-XAVIER BAGNOUD CTR. FOR HEALTH AND HUM. RTS., HARV. SCH. OF PUB.
HEALTH, HEALTH AND HUMAN RIGHTS: BASIC INTERNATIONAL DOCUMENTS (Stephen P.
Parks ed., 2004). For a more comprehensive collection, see THE RAOUL WALLENBERG
INSTITUTE OF HUMAN RIGHTS AND HUMANITARIAN LAW, A THEMATIC GUIDE TO
DOCUMENTS ON HEALTH AND HUMAN RIGHTS (Gudmundur Alfredsson & Katrina
Tomaševski eds., 1999).
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clearly contemplates access to essential medicines and article 25 has
been interpreted to include such a right.54 Moreover, other rights also
imply a right of access to pharmaceuticals. The UDHR states that everyone has the right to “share in scientific advancement and its benefits.”55
The ICESCR confers on everyone “the right to enjoy the benefits of scientific progress and its applications.”56 There is also the right to life itself,57 to which the right to health is regarded as “closely related” and
“dependent upon.”58
Finally, access to essential medicines is acknowledged as a legitimate
and important concern in non-human rights contexts as well. The WTO
has most prominently addressed the issue.59 The World Bank has issued
statements recognizing its importance.60 Even the World Intellectual
Property Organization (“WIPO”),61 which downplays both the impact of
patent protection on drug prices and the impact of drug prices on access
to drugs, acknowledges the importance of striking a balance between
54. See CESCR Gen. Comment 14, supra note 22, ¶ 11–12 (identifying access to essential medicines as defined by the WTO as a core obligation of states under right to
health and explaining that the right to health is “an inclusive right extending not only to
the timely and appropriate health care but also to the underlying determinants of
health” and requires states parties to ensure that health facilities, goods, and services
“whether privately or publicly provided, are affordable for all, including socially disadvantaged groups”); see also Special Rapporteur’s Mission to the WTO, supra note 3, ¶ 43
(explaining that because the right to health includes access to essential medicines, patent
protection can infringe upon the right).
55. UDHR, supra note 46, art. 27(1).
56. ICESCR, supra note 48, art 15(1)(b).
57. UDHR, supra note 46, art. 3 (“Everyone has the right to life, liberty and security
of person.”); ICCPR, supra note 47, art. 6(1) (“Every human being has the inherent right
to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life.”).
58. See CESCR Gen. Comment 14, supra note 22, ¶ 3.
59. See infra Part II.A.
60. See Juan Rovira, Trade Agreements, Intellectual Property, and the Role of the
World Bank in Improving Access to Medicines in Developing Countries, 4 YALE J.
HEALTH POL’Y L. & ETHICS 401 (2004), 410–411 (describing the World Bank’s position
encouraging the use of patent flexibilities and the production of generics to increase access to antiretroviral AIDS drugs).
61. WIPO is a specialized United Nations agency with a mandate “to promote the
protection of IP throughout the world through cooperation among states and in collaboration with other international organizations.” WIPO, What is WIPO?,
http://www.wipo.int/about-wipo/en/what_is_wipo.html (last visited Feb. 14, 2008). For a
brief overview of WIPO’s history and the WIPO framework, see Elaine Gin, International Copyright Law: Beyond the WIPO & TRIPS Debate, 86 J. PAT. & TRADEMARK
OFF. SOC’Y 763 (2004), 779–781.
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health concerns such as access to medicine and the benefits of a robust
patent regime.62
Despite the fact that the concept has been a part of the human rights
movement for quite some time and is recognized in a number of instruments, the right to health does not enjoy the same legal force as rights
that are considered “fundamental,” such as rights protecting against torture and genocide. There are a number of reasons for this. First, the right
to health suffers from a degree of “conceptual unclarity.”63 Although certain core concepts, including access to essential medicine, have emerged
over the years,64 “[i]t is difficult to pinpoint exactly what the right to
health contains. Health is a very broad and subjective concept . . . [and]
there exists a certain normative overlap with other human rights . . . .”65
Second, the right to health is different from other human rights in that
it is subject to progressive realization over time.66 However,
“[r]ecognition of core content underlines the fact that some elements are
not subject to progressive realization and should be realized immediately,
a notion which makes the right to health more tangible.”67 Additionally,
the right to health does impose an immediate obligation to take meaningful steps towards its fulfillment.68 Finally, there is a presumption that the
62. See WIPO, Striking a Balance: The Patent System and Access to Drugs and
Health Care, http://www.wipo.int/freepublications/en/patents/491/wipo_pub_491.pdf
(last visited Feb. 14, 2008) (describing the WIPO’s efforts to strike the appropriate balance between public health concerns relating to access to medicine and the interests of
patent owners).
63. Brigit Toebes, The Right to Health, in ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
175 (Asbjørn Eide, Catarina Krause & Allan Rosas eds., 2d rev. ed. 2001).
64. Id. at 176–177. Core concepts are primarily derived from the WHO Health for All
strategy and include maternal and child healthcare, family planning, immunization
against the major infectious diseases, appropriate treatment of common diseases and injuries, education concerning prevention and control of major health problems, promotion of
food supply and proper nutrition, and adequate supply of safe water and basic sanitation.
Id.
65. Id. at 174–175. See also John D. Blum, Is Justice for One Justice for All? The
Dilemma of Public Health Enforcement in an Interconnected World, 36 LOY. U. CHI. L.J.
349 (2004) (describing the difficulty of achieving an international agreement on what the
right to health means as a function of the “conceptual split over health, and the commensurate legal right to health, between the developed and the developing world”).
66. See CESCR Gen. Comment 14, supra note 22, ¶ 31 (“[P]rogressive realization
means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of article 12.”).
67. Toebes, supra note 63, at 176.
68. CESCR Gen. Comment 14, supra note 22, ¶ 30 (“States parties have immediate
obligations in relations to the right to health, such as the guarantee that the right will be
exercised without discrimination of any kind (art. 2.2) and the obligation to take steps
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right prohibits states from taking steps that would undermine progress
towards its realization69 as well as an obligation to “refrain from interfering directly or indirectly with the enjoyment” of it.70
Another challenge is that the right to health is not universally binding.
One hundred fifty-seven countries have ratified the ICESCR.71 Thus, five
countries, including the United States, are not bound to its expression of
the right to health.72 Moreover, the right to health does not enjoy the status of customary international law,73 which would be binding on the
United States in certain contexts despite the absence of a formal recognition of the right.74 Additionally, unlike the ICCPR, there currently is no
formal system in place for adjudicating violations of the ICESCR.75 Fi(art. 2.1) towards the full realization of article 12. Such steps must be deliberate, concrete
and targeted towards the full realization of the right to health.”).
69. Id. ¶ 32 (“As with all other rights in the Covenant, there is a strong presumption
that retrogressive measures taken in relation to the right to health are not permissible. If
any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives
and that they are duly justified by reference to the totality of the rights provided for in the
Covenant in the context of the full use of the State party’s maximum available resources.”).
70. Id. ¶ 33.
71. Office of the United Nations High Commission for Human Rights, ICESCR Ratifications and Reservations, http://www2.ohchr.org/english/bodies/ratification/3.htm (last
visited Feb. 14, 2008).
72. Other abstainers are Belize, Pakistan, Sao Tome and Principe, and South Africa.
Id. All of these countries, including the United States, have signed the covenant without
reservation but have not yet ratified it. Id. One, South Africa, has a domestic constitutional right to health. S. AFR. CONST. 1996 art. 27.
73. Flores v. S. Peru Copper Corp., 414 F.3d 233, 254 (2d Cir. 2003) (holding that the
right to health is “insufficiently definite to constitute rules of customary international
law”).
74. For example, in the Alien Tort Claims Act (“ATCA”), which gives federal district
courts original jurisdiction over civil actions by aliens for torts committed “in violation of
the law of nations or a treaty of the United States.” 28 U.S.C. § 1350 (2000). In this context, courts “have consistently used the term ‘customary international law’ as a synonym
for the term the ‘law of nation.’” Flores, 414 F.3d at 237 n.2.
75. Article 16 of the ICESCR requires states parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the
rights recognized herein,” which includes the right to health, to the Commission on Economic, Social, and Cultural Rights (“CESCR”), the body charged with overseeing the
implementation of the ICESCR. This generally takes the form of a written and oral discussion between the CESCR and a state government that concludes with the CESCR
adopting “concluding observations in relation to a specific state report.” Allan Rosas &
Martin Scheinin, Implementation Mechanisms and Remedies, in ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS 426–427 (Asbjørn Eide, Catarina Krause & Allan Rosas eds., 2d rev.
ed. 2001). This system “is more and more resembling a quasi-judicial complaint proce-
2008]
ACCESS TO ESSENTIAL MEDICINES
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nally, many governments are ambivalent or hostile to economic and social rights generally in part because they believe civil and political rights
are more basic and urgent and should be prioritized.76
The fact that the right to health is a progressive right, lacks binding
force, and struggles along with other economic and social rights to be
taken seriously leaves individuals hoping to assert it with no venue to
challenge general violations. However, as will be argued in Part II of this
Note, the access to essential medicines component of the right to health
is now ripe for elevation to customary international law. Assigning such
status to the access issue is a step towards judicial enforcement.
C. The Legal Dilemma: The Conflict between Intellectual Property
Rights and Health Rights
Another issue that complicates the realization of the right to health is
that, like all rights, it competes and conflicts with other rights. Often,
these other rights are more widely accepted and are supported by a much
more robust jurisprudence consisting of generations of statutes, treaties,
and case law.77 It is, in a sense, an uneven fight. Consequently, right to
dure[,]” but there still is no official complaint procedure. Id. at 427. This is in contrast to
the ICCPR (the treaty that guarantees civil and political rights, see supra note 47), which
is authorized to receive, review, and issue opinions on complaints from individuals claiming that a state has violated an ICCPR provision. See STEINER & ALSTON, supra note 46,
at 738. This individual complaint system was made possible through the enactment of a
binding optional protocol to the ICCPR, id., and has enabled the development of international case law and jurisprudence on civil and political rights. See John Quigley, The
International Covenant on Civil and Political Rights and the Supremacy Clause, 42
DEPAUL L. REV. 1287, 1294 (1993). Efforts to enact a similar system for the ICESCR
have been underway since 1990, but no consensus has been reached thus far. 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, 463 (2004). “Proponents of a
complaints mechanism have long argued that the absence of strong enforcement mechanisms in the ICESCR has marginalized economic, social, and cultural rights and stymied
their full realization.” Id.
76. STEINER & ALSTON, supra note 46, at 249–51.
77. Cf. Asbjørn Eide & Allan Rosas, Economic, Social, and Cultural Rights: A Universal Challenge, in ECONOMIC, SOCIAL, AND CULTURAL RIGHTS at 4 (describing one
theory advanced by many that regards civil and political rights as first generation rights
and economic, social, and cultural rights as second generation rights); id. at 5 (“It is a
well-known fact that economic, social, and cultural rights are surrounded by controversies, both of an ideological and technical nature. To some, they are not true rights at
all . . . .”).
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health issues are not prioritized.78 The right to access to essential medicines, in particular, is in direct competition most significantly with patent
rights.
Unlike the right to health, patent rights are longstanding79 and universally accepted.80 They are a component of intellectual property rights81
and give inventors the ability to legally exclude others from profiting
from their innovations.82 The theory of patent rights is based on the premise that inventions are “public goods that are costly to make and that
are difficult to control once they are released into the world.”83 Thus,
patent rights provide the economic incentive necessary to spur invention
by giving inventors the ability to take legal action against those that attempt to profit from the their invention, whether by stealing it, reverse
engineering it, or discovering it independently.84
Patent protection directly conflicts with access to essential medicine
because it prevents the production and sale of generic versions of patented drugs.85 Generic drugs significantly increase the accessibility of
78. Cf. id. at 3 (In the years since the passage of the ICCPR and the ICESCR, “civil
and political rights have attracted much more attention in theory and practice, while economic, social, and cultural rights have often been neglected.”).
79. The history of the patent system can be traced back to the Renaissance. Id. at 106.
Patent law first started becoming internationalized (such that an inventor with patent
rights in one country could assert them in another country) in 1883 with the Paris Convention. Id. at 293.
80. For example, patent protection is alluded to in article 27(2) of the UDHR, supra
note 46. Article 15(1)(c) of the ICESCR, supra note 48, states that every person has “the
right to benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.” (Interestingly, this
same article guarantees the right of everyone to benefit from scientific advancement.) In
1893, fourteen countries formed the predecessor to the World Intellectual Property Organization (“WIPO”). WIPO, About WIPO, http://www.wipo.int/treaties/en/general/ (last
visited Feb. 14, 2008). In 1974, WIPO became an official part of the United Nations and
currently has 184 member countries. Id.
81. MERGES ET AL., supra note 12.
82. Id.
83. Id. at 119.
84. Id. Other theories justifying patent rights include reward-based theories, natural
law theories, personhood theories, and property theories but these other theories play a
less significant role in patent law. Id. at 119 & n.38.
85. Cf. Robert Weissman, A Long, Strange Trips: The Pharmaceutical Industry Drive
to Harmonize Global Intellectual Property Rules, and the Remaining WTO Legal Alternatives Available to Third World Countries, 17 U. PA. J. INT’L ECON. L. 1069, 1099
(1996) (“Justified even on its own terms, the patent is not an unmitigated good. . . . It
does accomplish its stated goal of placing information regarding the newly invented item
in the public domain, but it does so at the expense of conditioning the right to use this
information commercially on securing a license from the patent holder. A license can
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medicine because they are cheaper than the patented brand name versions. “It is well documented that drug prices drop when countries promote the use of generics, abolish patents, or impose direct price controls.”86
At the international level, the production of generic drugs was primarily impeded by TRIPS, an agreement passed in 1994 by the WTO.87 The
agreement “brings together . . . a broad range of intellectual property
rights (“IRPs”) previously protected by subject-specific agreements”88
and is “the first significant multilateral agreement requiring member
countries to provide certain minimum levels of protection to owners of
intellectual property.”89 It also contains an enforcement mechanism. A
state party alleging violations of the agreement by another state party
may have its claim adjudicated by WTO dispute settlement procedures.90
Member states that fail to comply with the provisions of the agreement
may be subject to trade sanctions.91 Additionally, TRIPS requires member states to maintain both civil and criminal enforcement procedures
within their own borders to protect individual rights holders.92 Currently,
151 countries are members of the WTO and TRIPS.93
Part II, section 5 of TRIPS governs patents. It sets the minimum substantive protections that all member governments must provide to eligiusually only be acquired for a fee and, in the case of pharmaceuticals, is often not available for any feasible price.”).
86. Rahul Rajkumar, Note, The Central American Free Trade Agreement: An End
Run Around The Doha Declaration on Trips and Public Health, 15 ALB. L.J. SCI. &
TECH. 433, 438 (2005) (citing Fredrick T. Schut & Peter A.G. Van Bergeijk, International Price Discrimination: The Pharmaceutical Industry, 14 WORLD DEV. 1141, 1147
(1986)).
87. Supra note 14; cf. Doha Public Health Declaration, supra note 18, ¶ 3 (WTO declaration issued after trade rules were hindering access to medicines and acknowledging
the effect of intellectual property rights on prices).
88. Laurence R. Helfer, Adjudicating Copyright Claims Under the TRIPS Agreement:
The Case for a European Human Rights Analogy, 39 HARV. INT’L L.J. 357, 358–59
(1998).
89. Bagley, supra note 17, 782.
90. TRIPS, supra note 14, art. 64.1 (stating that disputes arising under TRIPS shall be
settled by the standard WTO dispute settlement procedures established in “articles XXII
and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding . . .”).
91. Bagley, supra note 17, 782–83.
92. TRIPS, supra note 14, arts. 41–61.
93. WTO, Members and Observers, http://www.wto.org/english/thewto_e/whatis_e
/tif_e/org6_e.htm (last visited Feb. 14, 2008). There are also thirty-two observer countries, some of which are currently in accession negotiations and all of which, excluding
the Holy See, must begin accession negotiations within five years of becoming an observer. Id.
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ble innovations and provides criteria that tightly control the circumstances under which derogation of patent rights is permitted.94 Under
article 27, pharmaceutical drugs are generally eligible for patent protection.95 However, products must be new and innovative in order to receive
protection.96 Article 28 defines the patent holder’s rights. These include
the right to exclude third parties from making, using, selling, or importing the patented product or process without consent97 as well as the right
to assign, transfer, and license the patent.98 Under article 33, the patent
holder has the right to exercise these rights for a term of twenty years.99
Article 30 allows the government of a member state to limit a patent
holder’s right to exclude other generic manufacturers “provided that such
exceptions do not unreasonably conflict with the normal exploitation of
the patent and do not unreasonably prejudice the legitimate interests of
the patent owner, taking account of the legitimate interests of third parties.”100
Under article 27, a member government is permitted to deny a patent to
an otherwise eligible invention if preventing the commercialization of
the invention “is necessary to protect ordre public or morality, including
to protect human, animal or plant life or health or to avoid serious prejudice to the environment . . . .”101 This provision is known as the public
health exception.102 Article 31 establishes parameters under which a
94. Bagley, supra note 17, at 785.
95. Cf. TRIPS, supra note 14, at art. 27.3 (listing the types of products that are ineligible for patent protection under TRIPS as “diagnostic, therapeutic and surgical methods”
and “plants and animals other than micro-organisms”). Although article 27 does not explicitly mention pharmaceuticals, that they were intended to receive patent protection is
evident from article 70(8). That article is a special provision for countries that did not
already provide patent protection for pharmaceuticals that required those countries to
begin to do so as they transitioned into TRIPS compliance. See Peggy B. Sherman &
Ellwood F. Oakley, III, Pandemics and Panaceas: The World Trade Organization’s Efforts to Balance Pharmaceutical Patents and Access to AIDS Drugs, 41 AM. BUS. L.J.
353, 363 (2004). The inclusion of article 70.8 was “[o]ne of the most significant victories
in TRIPS for the pharmaceutical industry.” Id. at 364.
96. TRIPS, supra note 14, at art. 27.1.
97. TRIPS, supra note 14, at art. 28.1(a)–(b).
98. Id. art. 28.2.
99. Id. art. 33 (“The term of protection available shall not end before the expiration of
a period of twenty years.”).
100. Id. art. 30.
101. Id. art. 27.2.
102. See Weissman, supra note 85, at 1099. Some have argued that article 27, which
states that therapeutic processes are ineligible for patent protection, is also a public health
exception because pharmaceuticals are a therapeutic process for the treatment of illnesses. However, this interpretation is “extreme” and “inconsistent” with article 70.8,
which specifically discusses the patentability of pharmaceuticals. Sherman & Oakley,
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member government may exercise the public health exception by breaking a pharmaceutical drug patent, also known as compulsory licensing.103
The decision to break a patent in this manner must be made on a case-bycase basis.104 Additionally, the patent can only be broken for a limited
scope and duration.105 The majority of the goods produced as a result of
the patent break must be used domestically106 and thus they cannot be
exported to another country.107 The member government must also pay
the patent holder remunerations if it breaks the patent.108
These mechanisms that allow member governments to loosen patent
protection in cases of national emergencies are commonly referred to as
“flexibilities.”109 The flexibilities make TRIPS compatible with an international patent system that adequately balances patent interests with the
need for access to essential medicines. The system was able to address
the concerns of the pharmaceutical industry110 while allowing member
supra note 95, at 368. Public health is also mentioned in article 8.1, which states that
“[m]embers may, in formulating or amending their laws and regulations, adopt measures
necessary to protect public health and nutrition, and to promote the public interest in
sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.” TRIPS,
supra note 14, art. 8.1.
103. Compulsory licensing allows a country to give someone other than the patentholder, such as a manufacturer of generic drugs, the right to manufacture and sell the
patented product without the patent-holder’s permission. BEIGBEDER, supra note 1, at 65.
The article makes specific reference to a “case of a national emergency or other circumstances of extreme urgency,” TRIPS, supra note 14, art. 31(b), however, compulsory
licensing is also permitted for non-emergency situations such as non-commercial public
use, id. art. 31(c), or to correct anti-competitive practices, id. art. 31(k). Additionally,
article 30 of TRIPS “potentially provides for very broad exceptions to the patent requirements of the Agreement . . . [as it] does not limit the purposes for which a country
may make exceptions to the Agreement.” Weissman, supra note 85, at 1108.
104. TRIPS, supra note 14, art. 31(a).
105. Id. art. 31(c).
106. Id. art. 31(f).
107. Id.; see also Fact Sheet: TRIPS and Pharmaceutical Patents, supra note 19.
108. Id. art. 31(h).
109. See, e.g., Sherman & Oakley, supra note 95, at 368 (referring to provisions that
compose the public health exception as “TRIPS flexibilities”).
110. Indeed, as described in Weissman, supra note 85, the American pharmaceutical
industry aggressively and successfully sought out deference to its international interests
both before and during the TRIPS drafting process. Through intense lobbying and political maneuvering, it was the pharmaceutical industry that prompted the United States to
demand that intellectual property be negotiated into the GATT. Once TRIPS negotiations
began, the industry “completely seized control of the terms of the debate.” Id. at 1085.
“Throughout the . . . negotiations, the United States maintained a firm stance; for an
agreement to be reached, other countries would have to adjust to its position. That position, essentially calling for the world to adopt U.S.-style patent law, was developed
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governments the ability to modify their patent rules where necessary to
secure the citizens’ right to health.
Unfortunately, these flexibilities proved unsuccessful. Despite the inclusion of a public health exception in TRIPS, patent protection still prevented access to essential medicine. The TRIPS flexibilities were underutilized because they were unclear and developing nations feared retaliation from other countries if they invoked them.111 For example, when
South Africa attempted to invoke the flexibilities for patented AIDS
drugs, forty-two pharmaceutical companies filed suit alleging violation
of TRIPS and the United States Trade Representative (“USTR”)112 pressured the South African government to maintain normal patent protection.113
Another problem with the public health exception was the “Paragraph
6 Problem,” a reference to TRIPS article 31(f) (the sixth paragraph of
article 31).114 As discussed above, article 31(f) requires that goods produced pursuant to compulsory licensing115 be used “predominantly for
largely by the pharmaceutical industry, according to the industry itself.” Id. at 1084. For
an excellent description of the American pharmaceutical industry’s tactics and influence
on international patent law, both before and after TRIPS, see id. at 1075–93.
111. Bagley, supra note 17, at 784–85.
112. The office of the United States Trade Representative is an executive agency responsible for formulating and implementing U.S. trade policy. Its responsibilities include
advising the president on international trade policy and the impact of other U.S. government policies on international trade, conducting international trade negotiations, coordinating trade policy with other agencies, and reporting to the president and Congress on
the administration of the trade agreements program. See USTR—History of the United
States Trade Representative, http://ustr.gov/Who_We_Are/History_of_the_United_States
_Trade_Representative_printer.html (last visited Jan. 28, 2008).
113. Bagley, supra note 17, at 784–85. The lawsuit was prompted by South Africa’s
passage of the Zuma Law in December of 1998 in the hopes of driving down drug prices
by opening the market to generic imports. The American pharmaceutical industry, which
at the time enjoyed a $2 billion-a-year drug market in South Africa, believed the law
would threaten their profits and that other countries would enact similar laws. In addition
to the law suit, some companies closed their plants in South Africa, forty-seven members
of Congress asked the USTR to take action to oppose the law, and President Clinton met
personally with the South African Health Minister, after whom the law was named, to
express his administration’s opposition to it. The New York Times described the dispute
as “bitter[] and driven by deep suspicions.” Donald G. McNeil, Jr., South Africa’s Bitter
Pill for World’s Drug Makers, N.Y. TIMES, Mar. 29, 1998, § 3 at 1. The lawsuit was
eventually dropped due largely to intense pressure from humanitarian nongovernmental
organizations (“NGOs”). See BEIGBEDER, supra note 1, at 59.
114. See Thomas A. Haag, TRIPS Since Doha: How Far Will the WTO Go Toward
Modifying the Terms for Compulsory Licensing?, 84 J. PAT. & TRADEMARK OFF. SOC’Y
945, 952 (2002).
115. Supra note 103.
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the domestic market.”116 The problem with this provision is that many
countries able to efficiently to produce generic drugs117 could not export
them to countries that needed cheaper versions but lacked the infrastructure and industry to produce them domestically.118 “Thus, for a state
lacking a drug manufacturing base, the ability to issue a compulsory license [was] largely academic.”119 Others have argued that the language
of TRIPS itself does not impede access as much as the power disparity
between developed and developing nations.120
II. LEGAL RESPONSES TO THE CONFLICT OF RIGHTS
A. The WTO Approach
In 2001, the African members of the WTO asked the WTO council to
clarify the TRIPS public health exception and the extent of members’
rights to use it.121 The WTO agreed,122 and the clarification was announced in 2001 in the Declaration on the TRIPS Agreement and Public
Health (“Doha Declaration”).123 “The Doha Declaration . . . explicitly
addressed some of the most problematic TRIPS provisions from the
standpoint of access to essential medicines, and returned a significant
measure of freedom to member countries to provide such access to their
citizens within the framework of the existing the TRIPS Agreement language.” 124
The Doha Declaration resulted in several positive steps towards harmonizing intellectual property rights and access to essential medicine.
First, it officially “recognized the gravity of the public health problems
116. TRIPS, supra note 14, art. 37(f).
117. These include India—which was the largest supplier of generic anti-AIDS drugs
to the world before it ratified TRIPS, requiring it to provide patent protection to pharmaceuticals, Sherman & Oakley, supra note 95, at 381–82, 392—and Brazil, id. at 388.
118. Haag, supra note 114, at 951.
119. Id. The practice of importing cheaper generic versions of drugs under patent in
one’s own country is known as parallel importing. BEIGBEDER, supra note 1, at 65. A
detailed explanation of TRIPS, which does not explicitly address parallel importing but
has been interpreted to disallow it, can be found in Haag, supra note 114.
120. See Dr. Susan K. Sell, Legal Movements in Trade & Intellectual Property, 17
EMORY INT’L L. REV. 591, 593 (2003).
121. See Brook K. Baker, Arthritic Flexibilities for Accessing Medicines: Analysis of
WTO Action Regarding Paragraph 6 of the Doha Declaration on the TRIPS Agreement
and Public Health, 14 IND. INT’L & COMP. L. REV. 613, 623 (2004); Press Release, WTO,
Decision Removes Final Patent Obstacle To Cheap Drug Imports (Aug. 30, 2003), available at http://www.wto.org/english/news_e/pres03_e/pr350_e.htm.
122. Id.
123. Doha Public Health Declaration, supra note 18.
124. Bagley, supra note 17, at 785.
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. . . resulting from HIV/AIDS” and “the concerns about [intellectual
property rights’] effects on prices.”125 It also stated in unequivocal terms
that TRIPS “does not and should not prevent members from taking
measures to protect public health”126 and “reaffirm[ed] the right of WTO
members to use, to the full, the provisions in the TRIPS Agreement,
which provide flexibility for this purpose.”127 The Doha Declaration also
clearly established the right of member governments to use compulsory
licensing in national emergencies and to determine for themselves what
constitutes a national emergency while also recognizing public health
issues related to HIV/AIDS as a legitimate national emergency under the
agreement.128
The Doha Declaration also took concrete steps towards policy change.
It instructed the TRIPS council to find an “expeditious solution” to the
parallel imports problem faced by developing nations with no capacity to
produce their own generic drugs.129 This was achieved via the 2003 Implementation Decision.130 That decision created a waiver that explicitly
allowed countries to export generic versions of essential medicines to
countries that did not have domestic generic manufacturing capabilities
and met certain other criteria.131 In 2005, the general council agreed on
125. Doha Public Health Declaration, supra note 18, ¶¶ 1, 3.
126. Id. ¶ 4.
127. Id. ¶ 4.
128. Id. ¶ 5(b)–(c).
129. Id. ¶ 6.
130. WTO, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS
Agreement and Public Health, WT/L/540, 43 I.L.M. 509 (Sept. 1, 2003) [hereinafter
2003 Implementing Decision], available at http://www.wto.org/english/tratop_e/trips_e/i
mplem_para6_e.htm.
131. Id. The waiver includes several safeguards intended to prevent abuse of the system, including a notification provision that requires countries to submit a detailed report
of their intention to employ the flexibility, specific eligibility requirements, limits on the
quantity of drugs that may be produced that correspond to what is needed, distinctive
labeling requirements so that products produced under the system can be easily distinguished, provision requiring countries to set up administrative measures preventing unauthorized use and sale, and the payment of remunerations by either the importing or exporting country to the patent holder. On July 17, 2007, Rwanda became the first country
to request generic imports in response to a domestic public health crisis. Press Release,
WTO, Patents and Health: WTO Receives First Notification Under “Paragraph 6” System
(July 20, 2007), available at http://www.wto.org/english/news_e/news07_e/public_
health_july07_e.htm. On October 4, 2007, Canada notified the WTO that it planned to
invoke the compulsory license provisions of the Doha Declaration to provide Rwanda
with the needed medicine—260,000 packs of a generic version of TriAvir, a triple combination AIDS therapy drug. Press Release, WTO, Canada is First to Notify Compulsory
License to Export Generic Drug (Oct. 4, 2007), available at http://www.wto.org
/english/news_e/news07_e/trips_health_notif_oct07_e.htm.
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an amendment to TRIPS that would permanently incorporate the new
exceptions into the agreement.132
B. U.S. Multilateral and Bilateral FTAs
With these new developments, an explicit acknowledgement by the
WTO asserting its commitment to facilitate increased access to medicine
and its demonstrated willingness to adjust patent laws in pursuit of this
goal, the international intellectual property regime seemed to have struck
a proper balance between the interests of patent-holders and the right to
health. However, TRIPS and its accompanying instruments do not represent the full body of law on the matter. Currently, the United States is
party to seventeen bilateral and regional FTAs.133 Each of these agree132. WTO, Amendment of the TRIPS Agreement, WT/L/641 (Dec. 6, 2005) [hereinafter TRIPS Amendment], available at http://www.wto.org/english/tratop_e/trips_e
/wtl641_e.htm. The amendment will become official once two-thirds of the WTO member countries ratify it. WTO, Countries Accepting Amendment of the TRIPS Agreement,
http://www.wto.org/english/tratop_e/trips_e/amendment_e.htm (last visited Feb. 5,
2008). The Unites States was the first on board, ratifying it on December 18, 2005, just
twelve days after the decision was announced. Id. As of January 2008, twelve other countries and the European Union have also ratified the amendment. Id. The waiver remains
in effect for each of the countries that has not ratified the amendment and until they do
so. Id. The WTO has also demonstrated its commitment to the access to essential medicines concerns in other less monumental but nonetheless important ways. In 2002, the
council issued a pair of decisions that extended the patent protection compliance deadline
for least developed countries from 2005 to 2016. WTO, Least-Developed Country Members—Obligations Under article 70.9 of the TRIPS Agreement with Respect to Pharmaceutical Products, WT/L/478 (July 8, 2002), available at http://www.wto.org/english
/tratop_e/trips_e/art70_9_e.htm; WTO, Extension of the Transition Period under article 66.1 of the TRIPS Agreement for Least-Developed Country Members for Certain
Obligations with Respect to Pharmaceutical Products, IP/C/25 (June 27, 2002), available
at http://www.wto.org/english/tratop_e/trips_e/art66_1_e.htm. On December 18, 2005,
the members reaffirmed the importance and their approval of WTO efforts to clarify the
relationship between TRIPS and public health. See WTO, Ministerial Declaration of 18
December 2005, ¶ 40, WT/MIN(05)/DEC, available at http://www.wto.org/english
/thewto_e/minist_e/min05_e/final_text_e.htm#public_health. In 2006, the WTO held
workshops in Geneva and Mauritius aimed at training government officials on how to use
the TRIPS public health flexibilities. WTO, Workshop Helps Officials Use Health Patent
Flexibilities (Nov. 27, 2006), http://www.wto.org/english/news_e/news06_e/trips_wp_
27nov06_e.htm.
133. The bilateral agreements are the Colombia Trade Promotion Agreement, Peru
Trade Promotion Agreement, Australia Free Trade Agreement, Bahrain Free Trade
Agreement, Chile Free Trade Agreement, Central American-Dominican Republic Free
Trade Agreement, Israel Free Trade Agreement, Jordan Free Trade Agreement, Malaysia
Free Trade Agreement, Morocco Free Trade Agreement, Oman Free Trade Agreement,
Panama Free Trade Agreement, Republic of Korea Free Trade Agreement, Singapore
Free Trade Agreement, South African Customs Union Free Trade Agreement, Thailand
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ments contains provisions governing patent protection that far exceed the
protections offered by TRIPS.134 Hence, they are referred to as TRIPSplus provisions.135
The effect of TRIPS-plus provisions in American bilateral and multilateral FTAs include “limit[ing] the potential exclusions from patentability, require[ing] the grant of patents for ‘new uses’ of known compounds,
requir[ing] the extension of patent terms under certain conditions, prevent[ing] parallel importation, limit[ing] the grounds on which compulsory licenses may be granted, and permit[ing] the prosecution of nonviolation nullification or impairment claims.”136 U.S. trading partners, in
particular least developed nations, routinely agree to such provisions despite their detrimental effects on the accessibility of essential medicines
because they hope that acquiescing to U.S. demands on the patent issues
will help them gain leverage in other trade areas and that such concessions will help build a friendly relationship with an important world su-
Free Trade Agreement, and the United Arab Emirates Free Trade Agreement. The regional agreements are the Central American Free Trade Agreement, North American Free
Trade Agreement, Asian-Pacific Economic Cooperation, Free Trade Area of the Americas, and Middle East Free Trade Area Initiative. See Office of the U.S. Trade Representative, Trade Agreements, http://ustr.gov/Trade_Agreements/Section_Index.html (last visited Feb. 5, 2008).
134. See Frederick M. Abbott, The WTO Medicines Decision: World Pharmaceutical
Trade and the Protection of Public Health, 99 AM. J. INT’L L. 317, 349–50 (2005) (arguing that the U.S. patent provisions “restrict the use of the flexibilities under the TRIPS
agreement”); see also Bagley, supra note 17, at 791–93 (“[C]ountries like the United
States and member-states of the European Union . . . were independently engaging in
negotiations to bind several developing countries to even higher levels of protection of
intellectual property rights (IPRs) via bilateral agreements.”).
135. Bagley, supra note 17, at 793.
136. Abbott, supra note 134, at 350. Some of the specific TRIPS-plus provisions included in U.S. FTAs include restricting compulsory licenses to public manufacturers
only, thereby taking this WTO endorsed flexibility away from governments that do not
have the capacity to publicly manufacture generics; prohibiting parallel imports, contrary
to the 2005 WTO decision to make the waiver permanent; increasing patents terms by
requiring an offset for delays that would result from the partner country’s marketing approval process; heightening the penalties for patent violations; prohibiting the partner
country from giving marketing approval to a generic drug until after the brand name
company’s patent expires, thus delaying delivery of cheaper generics to the market; and
requiring partner countries to keep the test data for a patented drug secret for the first five
years of the patent term, thus preventing the use of TRIPS flexibilities for the first five
years of a patent and further delaying the availability cheap generics to patients. See Human Rights Watch, The FTAA, Access to HIV/AIDS Treatment, http://www.hrw.org
/press/2002/10/ftaa1029-bck.htm (last visited Feb. 6, 2008).
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perpower.137 Thus far, the United States has declined to adjust its patent
policy to conform to the international standard.138
As a result of this policy, American FTAs upset the balance between
the right to health and intellectual property rights struck by the WTO. In
turn, essential antiretroviral drug therapies for HIV/AIDS remain prohibitively expensive in many countries and people in need of treatment
do not have the access to medicine that the right to health guarantees.
One way to regain the balance so that the patent flexibilities devised by
the WTO can retain their effectiveness is to force a change in U.S. policy. Until recently, there was no effective legal mechanism for prompting
such change. The Unites States was not bound by the right to health
guaranteed by the International Bill of Rights139 and TRIPS, as initially
adopted, establishes only a minimum level of patent protection that parties are free to enhance as long as they did not contravene the thrust of
the agreement.140 However, as Part III argues, the access to essential medicines issue can now be given legal force in ways that were unavailable
before.
III. THE CHANGING LEGAL LANDSCAPE
Widespread international acceptance of access to essential medicines
as a priority health issue and the 2005 WTO decision to make the Public
Health Waiver permanent by amending TRIPS have two consequences
that will require the United States to change its policy on pharmaceutical
patents. First, these developments enable the access to essential medicines component of the right to health to acquire international customary
law status, thereby giving it binding force. Second, if the TRIPS amendment is ratified, it will potentially make TRIPS-plus provisions illegal
and thus subject the United States, as a GATT signatory, to review by the
WTO dispute settlement process.
137. Abbott, supra note 134, at 353–54.
138. In response to assertions that its patent policy detrimentally curtails TRIPS flexibilities, the USTR issued side letters asserting that they do not undermine the right of
governments to take action for the public health. However, of the various agreements that
the USTR has negotiated, the side letters only address three agreements, the Central
American Free Trade Agreement, the U.S.-Bahrain Free Trade Agreement, and the U.S.Morocco Free Trade Agreement. Id. at 352. Additionally, “they are drafted in a substantially more restrictive way than the [WTO] texts” and “the USTR has questioned whether
the understanding will have legal effect.” Id.
139. See supra Part I.B
140. See Bagley, supra note 17, at 792 (“The TRIPS Agreement specifies minimum
levels of protection members must afford to IPRs, but explicitly allows members to implement ‘more extensive protection’ as long as it does not contravene the Agreement.”).
620
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A. Access to Essential Medicines as a Matter of Customary International
Law
It is long-standing and well-established that the United States is bound
by international law.141 This includes customary international law142 or
“the law of nations.”143 Customary international law consists of (1) “a
general and consistent practice of states” that is (2) “followed by them
from a sense of legal obligation” or opinio juris.144 In the context of human rights, the issue of customary international law has been most prominently brought to U.S. courts via claims seeking relief through the Alien
Tort Claims Act (“ATCA”).145 However, case law regarding customary
141. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 729–30 (2004) (“For two centuries we have affirmed that the domestic law of the United States recognizes the law of
nations”); The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of
our law, and must be ascertained and administered by the courts of justice of appropriate
jurisdiction, as often as questions of right depending upon it are duly presented for their
determination.”); RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED
STATES § 111(a) (1987) [hereinafter RESTATEMENT OF FOREIGN RELATIONS LAW] (“International law and international agreements of the United States are law of the United
States and supreme over the law of the several States.”). International law “consists of
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.” RESTATEMENT OF FOREIGN RELATIONS
LAW, supra, § 101. Though international treaties are also a part of U.S law, the fact that
the United States is party to treaty concerning the right to health, namely TRIPS, is insufficient to a bind it in this case because under U.S. law, international treaties are non-selfexecuting and thus do not in themselves impose obligations on the United States until
separate legislation is passed. Cf. Sosa, 542 U.S. at 735. For a contrary view asserting
that customary international law is not binding on the United States, see generally Curtis
A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common
Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997) (arguing in response to the RESTATEMENT OF FOREIGN RELATIONS LAW that because the decision in
Erie R.R. v. Tompkins, 304 U.S. 64 (1938), eliminated federal common law, customary
international law is not binding).
142. RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 141, § 102. International
law can also be formed by “(b) international agreement; or (c) by derivation from general
principles common to the major legal systems of the world.” Id.
143. Flores v. S. Peru Copper Corp., 414 F.3d 233, 377 n.2 (2d Cir. 2003) (“In the
context of the ATCA, we have consistently used the term ‘customary international law’
as a synonym for the term the ‘law of nations.’”) (citing Kadic v. Karadzic, 70 F.3d 232,
239 (2d Cir. 1995) and Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980)).
144. RESTATEMENT FOREIGN RELATIONS, supra note 141, § 102(2).
145. 28 U.S.C. § 1350 (2000). The ATCA, which was passed in 1789, states in full that
“[t]he district courts shall have original jurisdiction of any civil action by an alien for a
tort only, committed in violation of the law of nations or a treaty of the United States.” Id.
The viability of an ATCA claim for a health rights violation is beyond the scope of this
Note. However, in order for courts to review the viability of a claim under the ATCA,
2008]
ACCESS TO ESSENTIAL MEDICINES
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international law in general is sparse. The leading case is Sosa v. Alvarez-Manchain,146 an ATCA claim for relief alleging arbitrary detention as
a violation of customary norms. In Sosa, the Supreme Court affirmed the
view that new norms of customary international law are judicially cognizable.147 While the Court recognized that it had “no congressional mandate to seek out and define new and debatable violations of the law of
nations,”148 it held that “the door [to independent judicial recognition of
international norms] is still ajar subject to vigilant doorkeeping, and thus
open to a narrow class of international norms today.”149
In Sosa, the Court held that at least where the ATCA is concerned “any
claim based on the present-day law of nations [must] 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”
that were already established at the time the ATCA was enacted.150
While the ATCA is not directly implicated here in the essential medicines context, review of that case law is appropriate as it is the only area
that has led to any modern analysis of the mechanics of customary international law, especially with regard to the subset of international law,
human rights, at issue here. In determining whether a practice or rule
constitutes customary international law, courts may look to judgments
and opinions of national and international tribunals, scholarly works, and
unchallenged “pronouncements of states that undertake to state a rule of
international law.”151 Thus general acceptance and opinio juris serve as
the touchstones of international customary law while specificity enables
such a norm to develop into a private right of action that can be pursued
they had to discuss the issue of customary international law, as that is one of the statute’s
three main elements. Therefore, a discussion of the ATCA cases is particularly relevant
to the central thesis of this Note (that access to essential medicines is a binding right established by customary international law). Indeed, they are necessary as the overwhelming bulk of U.S. jurisprudence regarding customary international law was developed by
the ATCA cases.
146. 542 U.S. 692 (2004).
147. As pointed out by the Sosa Court, this view also bears congressional support. Id.
at 728. The majority opinion notes that the Torture Victim Protections Act provides a
mandate to define new violations of international law related to torture and that “the legislative history includes the remark that [the ATCA] should remain intact to permit suits
based on other norms that already exist or may ripen in the future into rules of customary
international law though congress as a body has done nothing to promote such suits.” Id.
(internal quotations and citations omitted).
148. Id.
149. Id. at 729.
150. Id. at 725. The eighteenth century norms identified by the Court were violation of
safe conduct, infringement of the rights of ambassadors, and piracy. Id. at 724.
151. RESTATEMENT OF FOREIGN RELATIONS LAW, supra note 141, § 103(d).
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under the ATCA. While the right to health in general is still evolving
towards these levels,152 the access to essential medicines component of
that right at least has arrived as a norm of customary international law.
However, though access to medicines is quite specific it is unlikely that
U.S. courts would recognize it as providing a private right of action justiciable under the ATCA.
1. General Acceptance
The first requirement for elevation to customary international law is
that the norm be generally accepted and practiced among the states.
“Practice . . . includes diplomatic acts and instructions as well as public
measures and other governmental acts and official statements of policy,
whether they are unilateral or undertaken in cooperation with other states
. . . . The practice necessary to create customary law may be of comparatively short duration . . . . A practice can be general even if it is not universally followed . . . .”153 To establish that prohibition of arbitrary detention was a customary norm, the plaintiff in Sosa relied on “a survey of
national constitutions, . . . a case from the International Court of Justice,
United States v Iran, 1980 I. C. J. 3, 42; and some authority drawn from
the federal courts.”154 The Court held that these authorities were insufficient to establish a customary norm not because they were inappropriate
proof of the standard but rather because the consensus they demonstrated
was at too general a level to meet the standard.155 In reaching this conclusion, the Court emphasized that there may be a norm against prolonged
arbitrary detention, but the plaintiff in Sosa was only detained for one
day.156 The Court rejected the ICJ case because it was decided on different grounds and did not deal directly with arbitrary detention.157 Like the
norm against arbitrary detention, the right of access to medicine is widely
recognized by the international community. However, it does not suffer
from the generality that was fatal to the plaintiff’s claim in Sosa.
First, through General Comment 14, the right of access to medicine has
been specifically adopted as a part of the ICESCR, which is binding international law for 157 countries. Since the ICESCR was established, the
international community’s commitment to honor the right of access to
152. This is especially true given that the content and definition of the right to health
are still being developed and the right still operates as a progressive right, as discussed
supra Part I.B.
153. RESTATEMENT OF FOREIGN RELATIONS, supra note 141, § 102 cmt. b.
154. Sosa, 542 U.S. at 737 n.27 (internal citations omitted).
155. Id.
156. Id. at 738.
157. Id. at 737 n.27
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essential medicines has been reaffirmed again and again. Major United
Nations initiatives have been launched to make access to essential medicines a factual reality.158 The 193 member countries of the World Health
Organization have made essential medicines a policy priority for that
organization. The WTO, with its 193 member countries, has taken several active steps in the last decade to ensure a legal regime conducive to
realization of the right for all. This has culminated in the unprecedented
2005 decision to amend TRIPS for the first time in the agreement’s history. Even though the amendment has not yet been ratified by the twothirds of member governments necessary to make it an official part of
TRIPS, it was approved by the WTO General Council, which is the main
decision-making body and has representatives for every member country.159 Thus, it serves as an official statement of 193 members of the
world community that the right of access to essential medicines must be
protected. Additionally, more so than other such statements, such as the
ICESCR itself, this decision is a powerful statement of state practice because it takes a very specific and concrete position on the issue and was
the product of deliberation and negotiation.
In addition to international level commitment, several countries have
unilaterally prioritized the issue, both has a matter of law and fact. By the
end of 1999, over 100 countries had a national drug policy, which by
definition includes access to essential medicine as a core objective.160
The issue has also been successfully litigated fifty-nine times between
1992 and 2003 in domestic courts.161 In 2000, President Bill Clinton issued Executive Order 13155, in which he recognized the importance of
access to essential medicines as dealt with in TRIPS and affirmed the
United States’ commitment to enabling increased access in sub-Saharan
Africa.162
158. See, e.g., 3 by 5 Report, supra note 6; The United Nations Millennium Development Goals, http://www.un.org/millenniumgoals/goals.html (last visited Feb. 24, 2008);
The Special Rapporteur’s Mission to the WTO, supra note 3.
159. WHO, The WTO General Council, http://www.wto.org/english/thewto_e/gcounc_
e/gcounc_e.htm (last visited Feb. 14, 2008).
160. WHO, How to Develop and Implement a National Drug Policy (2003),
http://www.who.int/medicines/publications/policyperspectives/PPM_No6-6pg-en.pdf
(last visited Feb. 14, 2008).
161. Hans V. Hogerzeil, et. al., Is Access to Essential Medicines as Part of the Fulfillment of the Right to Health Enforceable though the Courts?, 368 THE LANCET 305, 305
(2006) (presenting the results of a study that examined domestic litigation of the access to
essential medicines component of the right to health).
162. Exec. Order No. 13155, 65 Fed. Reg. 30,521 (May 10, 2000). The Order used
muted language, never mentioned the word “patent,” and emphasized that access was
only one and not the most important issue in the fight against HIV/AIDS but it nonethe-
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Second, unlike arbitrary detention in the Sosa case, access to essential
medicines is a very specific and narrowly defined norm. It is based on
the concept of essential medicines as developed by the World Health Organization, which the ICESCR and the WTO have both adopted. Thus it
applies to a very specific and finite list of pharmaceuticals. While it encompasses more than drug affordability, cost is a key component among
all of the international organizations that address the right to health and
access as well as the countries that have domestic policies regarding
health.
2. Opinio Juris
“For a practice of states to become a rule of customary international
law it must appear that the states follow the practice from a sense of legal
obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute
to customary law.” At the same time, departures from the practices do
not invalidate it as a customary norm. The Sosa Court did not address
opinio juris and very few lower courts have had occasion to apply it.163
In Kane v. Winn, the Court accepted the existence of international treaties and non-treaty instruments such as the UDHR as evidence of opinio
juris for a torture claim under the ATCA.164 The Court reached a similar
conclusion in Lareau v. Manson, a prisoners’ rights case ultimately decided under domestic law.165
Several aspects of the development of the right to access to essential
medicines demonstrate that it is followed from a sense of legal obligation. As established above, access to medicine is an essential component
less recognized the “right” of countries to promote public health and the United States’
commitment to make sure its policies did not interfere with that right. Additionally, the
Order was entitled “Access to HIV/AIDS Pharmaceuticals and Medical Technologies.”
However, it specifically stated that it did not create any substantive or procedural rights
enforceable against the United States as it was “intended only to improve the internal
management of the executive branch.” Id.
163. The relevant cases include: Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Vietnam Ass’n for Victims of Agent Orange/Dioxin v. Dow Chemical Co. (In re Agent Orange Prod. Liab. Litig.), 373 F. Supp. 2d 7 (S.D.N.Y. 2005); Kane v. Winn, 319 F. Supp.
2d 162 (D. Mass. 2004); Aldana v. Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285
(S.D. Fla. 2003) vacated in part by, Aldana v. Del Monte Fresh Produce, N.A., Inc., 416
F.3d 1242 (11th Cir. 2005); Sarei v. Rio Tinto Plc, 221 F. Supp. 2d 1116 (C.D.Cal. 2002)
rev’d on other grounds by Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, (9th Cir. 2005);
Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002); Lareau v. Manson, 507
F. Supp. 1177 (D. Conn. 1980).
164. Kane, 319 F. Supp. 2d at 197.
165. Lareau, 507 F. Supp. at 1193 n.18.
2008]
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625
of the right to health. The right to health in turn is a firmly established
human right. A human right by definition imposes a legal obligation on
states. It is a limit upon state action that stems from the humanity all individuals are born with and thus precedes the existence of the state. As in
Kane and Lareau, the right is expressed in various treaties and in the
UDHR, which U.S. courts have acknowledged as legitimate evidence of
opinio juris. The language of legal obligation is also present in the WTO
statements and the Executive Order 13155 concerning access to medicine. Both refer to the “right” of states to promote public health. The
WTO documents go even further and refer to the right of nations to promote access to essential medicines. Finally, the most powerful evidence
that states are compelled to protect the right of access to essential medicines is the 2005 decision to amend TRIPS.166 One hundred ninety-three
nations agreed that the international trading regime, an aspect of law facially unrelated to health or human rights and a pillar of international
relations, needed to be changed in order to eliminate conflicts with the
human rights obligations of developing nations to their people.
That the language used by the international community to express the
concept is one step removed from the direct assertion that individuals
have a legal right of access to essential medicines does not undermine the
opinio juris claim. The phrase “the right of countries to promote access
to essential medicines” would be meaningless if it did not a fortiori mean
that the people have a corresponding right of access to essential medicines. It only makes sense if read to mean that the states have a right to
fulfill their duty to their people. The opinio juris aspect of the right of
access to essential medicines is also not undermined by the fact that the
issue is often discussed in terms of a practical need to respond to the
AIDS epidemic. The law does not require that a norm be followed exclusively out of a sense of legal obligation to qualify as a matter of international customary law. For example, the prohibition against torture, which
has been accepted as customary norm167 is similarly followed out of a
sense of legal as well as moral obligation.168
166. Practice and opinio juris can be proven by the same evidence. Cf. Kane, 319 F.
Supp. 2d at 197 (holding that the treaties relevant to the case “constitute both state practice and evidence of opinio juris”).
167. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
168. Cf. Filartiga, 630 F.2d at 890 (“In the modern age, humanitarian and practical
considerations have combined to lead the nations of the world to recognize that respect
for fundamental human rights is in their individual and collective interest. Among the
rights universally proclaimed by all nations, as we have noted, is the right to be free of
physical torture.”) (emphasis added).
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B. The Impact of the TRIPS Amendment on U.S. TRIPS-Plus Policy
Prior to the WTO’s 2005 decision to amend TRIPS, the flexibilities incorporated in it represented minimum protections for intellectual property rights. Thus, the United States and other countries were free to institute more stringent protection, which by necessary implication would
undermine the right of access, without violating the agreement. The
amendment, if ratified, has the potential to turn the WTO patent regime
on its head with respect to pharmaceuticals. That is, it could be interpreted as a ceiling above which member governments may not increase
pharmaceutical patent protection. This in turn could mean that governments that institute patent policies that exceed the TRIPS ceiling, i.e.,
TRIP-plus polices, could be violating TRIPS and be subject to sanction.
Whether this will occur is, of course, contingent on the amendment becoming official and how the amendment will be interpreted.
To become official, the amendment must be ratified by two-thirds of
the WTO members.169 This will likely occur without incident. It was already approved by the WTO council, which consists of representatives
from each member country.170 Additionally, access to essential medicines
is not a controversial issue. As discussed above, it already enjoys widespread acceptance. Moreover, given the international shame brought
upon pharmaceutical companies that attempted to sue South Africa for
invoking TRIPS flexibilities,171 it is unlikely that any government would
take the public relations risk of opposing the amendment. Finally, the
country wielding the most power in the debate and the one that would be
expected to put up the most opposition given the trade policies it negotiates outside the WTO, the United States, has already ratified the amendment.172
Whether the amendment will be interpreted as a prohibition on TRIPSplus is much less certain. Of course, the fact that the biggest proponent of
TRIPS-plus has ratified the treaty cuts against such a reading. Additionally, despite the reports of scholars and NGOs identifying the detrimental
effects of TRIPS-plus that are cited throughout this Note, the WTO’s
latest review of U.S. trade policy barely mentions pharmaceutical patents
in its over two hundred pages.173 The report was issued in 2006, well af169. See WTO, Countries Accepting Amendment of the TRIPS Agreement,
http://www.wto.org/english/tratop_e/trips_e/amendment_e.htm (last visited Feb. 5,
2008).
170. See TRIPS Amendment, supra note 132.
171. See supra note 113.
172. See supra note 132.
173. See WTO, Trade Policy Review–United States, WT/TPR/S/160 (Feb. 15, 2006).
The only mention of U.S. versus WTO policy regarding intellectual property protection
2008]
ACCESS TO ESSENTIAL MEDICINES
627
ter the adoption of the TRIPS flexibility waiver and the decision to make
the waiver permanent via amendment. Thus it appears that the WTO was
either unwilling or uninterested in addressing TRIPS-plus so far as multilateral and bilateral FTAs were concerned. However, there are factors
that suggest this could change once the amendment becomes official.
First, the language of the amendment is much stronger than the original
TRIPS-flexibilities. It expressly forbids reservations to the new protocols
without the consent of other members.174 It states unequivocally that the
obligations of the patent section of TRIPS that limit parallel imports
“shall not apply” to countries that face a health crisis.175 It also forbids
members from challenging a country that invokes a flexibility.176 Underlying all of these provisions, and expressed in various WTO statements,
is the WTO’s express commitment to promoting a world trade regime
that is in harmony with the right of access. It can be argued that all of
this language taken together means that by pushing for TRIPS-plus, the
United States and its trading partners are “violating a commitment [they
have] made in the WTO”177 or that while it may “not involve a violation
of obligations under a covered agreement . . . nevertheless . . . benefits
are being nullified or impaired.”178
Second, the WTO undertook to reevaluate TRIPS flexibilities and ultimately to adopt an amendment to strengthen them in response to a formal request from its least developed member nations.179 The amendment
is designed to eliminate the legal ambiguities resulting from the intersection of intellectual property and the right to health that prompted these
nations to seek clarification. Thus, it can be further argued that interpreting the amendment in any manner other than as categorically prohibiting
TRIPS-plus defeats its very purpose and its reason for being.
CONCLUSION
Despite the international prioritization of health issues, adequate access
to essential medicines continues to elude millions across the globe. One
of pharmaceutical patents is a brief, one-sentence note acknowledging that U.S. FTAs
“go beyond the commitments of the TRIPS Agreement.” Id. at 18.
174. TRIPS Amendment, supra note 132.
175. Id.
176. Id.
177. WTO, Dispute Settlement, http://www.wto.org/english/tratop_e/dispu_e/dispu_e.
htm#intro (last visited Feb. 14, 2008).
178. WTO, Understanding on Rules and Procedures Governing the Settlement of Disputes, http://www.wto.org/english/docs_e/legal_e/ursum_e.htm#Understanding (last
visited Feb. 14, 2008).
179. See supra note 121.
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major obstacle has been international trade and intellectual property
laws. While significant strides have been made in harmonizing those regimes with the right of access to essential medicines, U.S. TRIPS-plus
policy thwarts progress. Until recently, there were no legal mechanisms
to prompt the United States and its trading partners to honor the right.
However, the WTO’s recent decision to amend TRIPS heralds new possibilities for enforcing countries’ legal obligations under the right of access to medicine.
That the right can now properly be considered a norm of international
customary law is immensely significant because as such, it is universally
binding regardless of a country’s formal acceptance of the ICESCR and
comparable instruments. Thus, in continuing to push TRIPS-plus trade
provisions, the United States is violating the law. While there is no specific manner in which the United States can be sanctioned, it should be
enough that by continuing to pursue TRIPS-plus in the face of specific,
narrowly defined, and widely accepted international standards, the
“[g]overnment itself would become a lawbreaker.”180
If that is not enough, however, the TRIPS amendment, once ratified,
has the potential to force a reversal of TRIPS-plus policy by declaring it
a violation of the GATT and by imposing sanctions on countries that
pursue policies that undermine TRIPS flexibilities. The United States is
powerful and there surely is a general reluctance among the other nations
of the world to subject such an indispensable ally to trade sanctions.
However, if the WTO is sincere about its commitment to securing the
right of access to essential medicines, it will encourage member states to
hold the United States accountable and will support them when they do.
Tina S. Bhatt*
180. Olmstead v. United States, 277 U.S. 438, 483 (1928) (Brandeis, J., dissenting).
* B.A. University of Virginia; J.D. Brooklyn Law School (expected 2008). I would
like to thank Shannon Haley and the 2007–2008 staff of the Brooklyn Journal of International Law for their help in editing this Note and preparing it for publication.
ATCA: CLOSING THE GAP IN
CORPORATE LIABILITY FOR
ENVIRONMENTAL WAR CRIMES
INTRODUCTION
W
hen Israel’s 2006 military bombing campaign in Lebanon
wrought destruction of both the infrastructure of the country as
well as the natural environment, the environmental impact of warfare
was once again brought to public consciousness.1 This kind of wanton
destruction of the environment has been condemned by the international
community,2 and prohibitions against it are found in several treaties, including the Additional Protocol I of the Geneva Convention of 1949
(“Additional Protocol I”),3 the Convention on the Prohibition of Environmental Modification Techniques (“ENMOD”),4 and the Rome Statute
of the International Criminal Court (“Rome Statute”).5 However, the lack
of criminal prosecution for environmental war crimes since Nuremburg6
1. See, e.g., Hassan M. Fattah, Casualties of War: Lebanon’s Trees, Air and Sea,
N.Y. TIMES, July 29, 2006, available at http://www.nytimes.com/2006/07/29/world
/middleeast/29environment.html?ex=1311825600&en=34075758dfbd9790&ei=5088&pa
rtner=rssnyt&emc=rss; Richard Black, Environmental Crisis in Lebanon, BBC NEWS,
July 31, 2006, http://news.bbc.co.uk/2/hi/science/nature/5233358.stm; Bassem Mroue,
Lebanon Sees Environmental Damage, WASH. POST, Aug. 1, 2006, available at
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/01/AR2006080100672.
html.
2. For example, the United Nations (“U.N.”) General Secretary issued a message on
The International Day for Preventing the Exploitation of the Environment in War and
Armed Conflict expressing the U.N.’s view that countries in armed conflicts should “neither exploit[] nor heedlessly damage[] ecosystems in the pursuit of military objectives,”
and noting that “by and large the environmental consequences of war are overlooked by
contemporary laws;” the message also declares that “[i]t is high time that we review international agreements related to war and armed conflict to ensure that they also cover
deliberate and unintentional damage to the environment.” Message by the SecretaryGeneral of the U.N., Kofi Annan, International Day for Preventing the Exploitation of
the Environment in War and Armed Conflict, Nov. 6, 2006, available at
http://www.eclac.org/cgi-bin/getProd.asp?xml=/prensa/noticias/comunicados/7/27167/P2
7167.xml&xsl=/prensa/tpl-i/p6f.xsl&base=/prensa/tpl-i/top-bottom.xsl.
3. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125
U.N.T.S. 3, 16 I.L.M. 1391 [hereinafter Protocol I].
4. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 U.S.T. 333, T.I.A.S. No. 9614 [hereinafter ENMOD].
5. Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc.
A/Conf.183 [hereinafter Rome Statute].
6. Carl E. Bruch, All’s Not Fair in (Civil) War: Criminal Liability for Environmental
Damage in Internal Armed Conflict, 25 VT. L. REV. 695, 716 (2001).
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suggests that these international agreements do not provide an effective
deterrent. Furthermore, when military powerhouses such as the United
States refuse to be a party to most of these conventions,7 it is unlikely
that criminalization of these acts will succeed as a deterrent.
Civil liability for such destruction could be more effective. Some success in obtaining funds to clean up war-related environmental damage
has been achieved through the United Nations Compensation Commission (“UNCC”),8 which adjudicated claims brought against Iraq for actions it took during the Persian Gulf War. Though this demonstrates that
civil remedies pursued through international channels might be useful,
the relatively insubstantial damages recovered indicate potential problems with the UNCC as a tool of recovery against states.9 In the case of
Iraq, problems recovering had much to do with Iraq’s initial refusal to
cooperate with the United Nations.10 Application of the UNCC to future
civil claims may face additional challenges, namely the requirement that
a state fulfilling a judgment has sufficient and accessible wealth to draw
upon for such remedial measures.11
Taking into consideration the difficulties that inhere when attempting
to recover monetary relief from a state, it is possible that civil litigation
against private entities such as corporations could achieve better results.
There may be more to gain both in terms of financial compensation as
well as deterrence since the cost of participating in such large scale destruction could be prohibitive from the private sector perspective.
One potential avenue of relief that allows private individuals a right to
litigate for compensation is the United States Alien Tort Claims Act
(“ATCA”).12 The ATCA establishes jurisdiction for U.S. district courts
to hear any civil action by an alien for a tort committed in violation of
the law of nations or a treaty of the United States. Although said to apply
to “claims in a very limited category,”13 the ATCA has been used with
increasing frequency to bring charges against both corporations and pri7. See Protocol I, supra note 3; see Rome Statute, supra note 5. The United States is
not a party to Protocol I or the Rome Statute.
8. Meredith DuBarry Huston, Wartime Environmental Damages: Financing the
Clean-up, 23 U. PA. J. INT’L ECON. L. 899, 911 (2002) (citing S.C. Res. 687, ¶ 16, U.N.
Doc. S/RES/687 (1991)).
9. Id. at 915.
10. Id. at 915−16. Compensation for the fund was to be derived from thirty percent of
Iraq’s exports of petroleum and petroleum products, but Iraq refused to comply. Instead,
frozen oil revenues held by other countries temporarily subsidized the fund.
11. Id. (citing Rosemary E. Libera, Note, Divide, Conquer, and Pay: Civil Compensation for Wartime Damages, 24 B.C. INT’L & COMP. L. REV. 291, 301 (2001)).
12. 28 U.S.C.A. § 1350 (2003).
13. Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004).
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vate individuals accused of violating “the law of nations.” It has met with
substantial success in actions brought against private individuals who
engaged in conduct that violated “well-established, universally recognized norms of international law.”14
This is not to say that the conventions criminalizing certain levels of
environmental destruction during combat would serve no purpose or
should never be asserted, but only that the penalty of cleaning up the destruction could provide a crucial economic barrier to corporations that
support military plans entailing great environmental damage. While
some have argued that litigation is neither effective nor efficient in
achieving goals that are ostensibly political in nature,15 the pressure applied to private corporations through prosecution of ATCA claims brings
public awareness to this crisis, and can deter those that customarily facilitate unlawful military operations. Furthermore, regular prosecution of
individuals or corporations for such activities can contribute to the international consensus that this environmental crime is one that reaches the
level of universal concern, and thus subjects the perpetrators to a wider
range of jurisdiction and a greater degree of accountability.
This Note will argue that the ATCA is an important tool that should be
utilized to hold private entities, such as corporations, accountable for
causing serious harm to the environment in the course of an armed conflict. In order to protect the environment and the health and well-being of
all its inhabitants, it is necessary to inhibit the reckless destruction of the
land and sea. The international community has not yet achieved the will
or means to do so. Applying punitive measures against those who perpetrate environmental war crimes is necessary and the ATCA can provide
such a precedent.
Part I of this Note will briefly describe the range of environmental
damage arising from armed conflict throughout history to the present
time. Part II will establish the existence of an international prohibition
against environmental destruction during warfare as evidenced in international agreements as well as in customary international law. Part III
will discuss the mechanisms in place to address the deterrence of such
conduct and examine the shortcomings of these methods. Part IV presents the ATCA as a viable alternative for discouraging environmental
harm. Part IV begins with a brief history of the ATCA followed by an
examination of how courts have responded to ATCA claims, highlighting
14. Filartiga v. Pena-Irala, 630 F.2d 876, 888 (2d Cir. 1980).
15. Bill Baue, “Win or Lose” in Court, BUSINESS-ETHICS.COM, Summer 2006, available at http://www.globalpolicy.org/intljustice/atca/2006/06winlose.pdf#search=%22ali
en%20tort%20claims%20act%20pushes%20corporate%20respect%22.
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potential obstacles litigants may have to overcome. Discussion in this
section will include the legal argument for holding private entities such
as corporations liable for environmental torts during war. Part V will discuss the application of the ATCA to military defense contractors. The
Note will conclude with a policy argument for utilizing the ATCA in
U.S. courts, including the need to fill in the gap in accountability for environmental war crimes so that the perpetrators, and not victims or taxpayers, will be held fiscally responsible.
I. A BRIEF HISTORY OF ENVIRONMENTAL HARM AS A BYPRODUCT OF
WARFARE
The history of environmental destruction during war, intended or incidental, is millennia old and notorious. A few milestones in the history of
environmental abuse include the alleged salting of the fields of Carthage
in the second century by the Romans during the Punic Wars,16 the Union
Army’s burning of thousands of farms and killing of livestock in the Civil War,17 the atomic blast that irradiated Hiroshima and Nagasaki, the
forests defoliated by Agent Orange during the Vietnam War,18 and the
deliberate spilling of millions of gallons of oil into the Persian Gulf and
the burning of over 500 oil fields by Iraq in the Persian Gulf War.19 More
recently, the armed conflict between Israel and Lebanon gave rise to yet
another wartime environmental disaster.20 Fallout from the bombing
campaign included an 87-mile long oil slick along the Lebanese shore.21
An estimated total of 35,000 tons of oil in the coastal waters threatened
the fishing and tourism industries and posed a serious threat to human
health from toxic substances such as benzene, a known carcinogen.22 As
a result, Lebanon, a country that prioritized the maintenance of a pristine
environment, faces the devastation of the entire marine ecosystem on its
16. Tara Weinstein, Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?, 17 GEO. INT’L ENVTL. L. REV. 697, 700
(2005).
17. See Bruch, supra note 6, at 695 (citing BRUCE CATTAN, THE PENGUIN BOOK OF
THE AMERICAN CIVIL WAR 240 (1960)).
18. John Alan Cohan, Modes of Warfare and Evolving Standards of Environmental
Protection under the International Law of War, 15 FLA. J. INT’L L. 481, 488 (2003) (citing Michael N. Schmiit, Green War: An Assessment of the Environmental Law of International Armed Conflict, 22 YALE J. INT’L L. 269 (1997)).
19. Id. at 488.
20. See, e.g., Fattah, supra note 1; Black, supra note 1.
21. Anthee Carassava, U.N. Pledges $64 Million for Cleanup of Oil Spill off Lebanon,
N.Y. TIMES, Aug. 18, 2006, available at http://www.nytimes.com/2006/08/18/world/
middleeast/18spill.html.
22. Id.
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shores.23 Furthermore, there is evidence that Israel, in this latest conflict,
used weapons that not only produce long term health effects in humans,
but contaminate the environment.24 Though U.N. forces and concerned
representatives of countries affected by the spillage have banded together
to clean up the waters,25 it is unclear how effective these measures will
be in restoring the ecosystem in the affected areas and preventing death
or sickness from exposure to the chemical substances in the water, or
how much money will ultimately be needed to sustain such a clean up.26
II. ENVIRONMENTAL DESTRUCTION DURING WAR IS DELIMITED BY
INTERNATIONAL AGREEMENT AND CUSTOMARY INTERNATIONAL LAW
The international community has for centuries recognized various rules
of war, otherwise known as jus in bello,27 some of which apply indirectly
to environmental destruction.28 Among these rules are three relevant
principles: necessity, proportionality, and humanity.29 Military necessity
23. In particular, the endangered turtles that hatch on the beaches in July are threatened, as well as the beds along the shore where tuna spawn. Mroue, supra note 1. Mroue
also points out that Lebanon has taken steps to combat the effects of pollution, unlike
many of its neighbors in the Middle East. For example, Lebanon has laws that prohibit
diesel minibuses and that curtail factory pollution. Id. This demonstrates how easily an
aggressor country using military force against another can destroy in a few hours the
benefits of any environmental progress made over the years by the country it attacks.
24. Dr. Doug Rokke, Bunker Buster Bombs Containing Depleted Uranium Warheads
Used By Israel Against Civilian Targets In Lebanon, GLOBAL RESEARCH, July 26, 2006,
available at http://www.globalresearch.ca/index.php?context=viewArticle&code=ROK2
0061106&articleId=3748; Israel Detonated a Radioactive Bunker Buster Bomb in Lebanon: What Kind of Weapon Leaves Traces of Radiation & Produces Such Lethal & Circumscribed Consequences?, GLOBAL RESEARCH, Nov. 11, 2006, available at http://www.
globalresearch.ca/index.php?context=viewArticle&code=20061111&articleId=3813.
25. Carassava, supra note 21.
26. In August 2007, the Christian Science Monitor reported that the government of
Lebanon had collected sixty to seventy percent of the oil spill but was unable to complete
the clean up due to a lack of funding. Carol Huang, Oil Legacy of War Mars Lebanon
Coast, THE CHRISTIAN SCIENCE MONITOR, Aug. 23, 2007, available at http://www.
csmonitor.com/2007/0823/p06s02-wome.htm. Free-floating oil is still drifting ashore,
and the oil that remains on the shore and seafloor is reentering the sea. Id.
27. See, e.g., The Paquete Habana, 175 U.S. 677, 686 (1900) (discussing the application of international law governing the capture of fishing vessels during wartime).
28. See, e.g., The Hague Convention II Laws and Customs of War on Land art. 23,
July 29, 1899, 32 Stat. 1803, available at http://www.yale.edu/lawweb/avalon/law
ofwar/hague02.htm (prohibiting the employment of “poison or poisoned arms” and the
destruction or seizure of “the enemy’s property, unless such destruction or seizure be
imperatively demanded by the necessities of war”).
29. Cohan, supra note 18, at 491 (citing Capt. William A. Wilcos, Jr., Environmental
Protection in Combat, 17 S. ILL. U. L.J. 299, 302 (1993)). See also Protocol I, supra note
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justifies applying any force required to win the complete and timely
submission of the enemy without violating the laws of war.30 The proportionality principle “prohibits methods of warfare likely to cause injury to
civilians in excess of any concrete direct military advantage,”31 while the
humanity principle prohibits “means of warfare that are inhumane.”32
The application of these principles to environmental destruction was asserted by members of the U.N. when the Security Council passed Resolution 687, which held Iraq liable for “any direct loss, damage, including
environmental damage, and the depletion of natural resources” caused by
the Iraqi invasion.33 For example, the United States asserted that, with
respect to this damage, Iraq had violated the principles of necessity and
proportionality.34
The international community also has several international agreements
in place that delimit the range of environmental destruction tolerated during war. Some of the earlier conventions address the environment indirectly. For example, the Hague Convention of 1907 prohibits the use of
“poison or poisoned weapons,” and the destruction or seizure of “the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”35 These principles were applied after
WWII to hold German industrialists who had over-exploited Polish forests for timber accountable.36
3. Protocol I limits military conduct in many instances to that deemed “necessary.” For
example, see articles 14(3)(b), 54(5), 62(1). Id.
30. Capt. William A. Wilcos, Jr., Environmental Protection in Combat, 17 S. ILL. U.
L.J. 299, 302 (1993).
31. Cohan, supra note 18, at 494 (citing Stephanie N. Simonds, Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform, 29 STAN.
J. INT’L L. 165, 168 (1992)).
32. Id. at 495 (citing the Declaration of St. Petersburg Renouncing the Use, in Time
of War, of Explosive Projectiles under 400 Grammes in Weight, Nov. 29, 1868).
33. Lt. Col. Michael N. Schmitt, Green War: An Assessment Of The Environmental
Law Of International Armed Conflict, 22 YALE J. INT’L L. 1, 27 (S.C. Res. 687, ¶ 16,
U.N. Doc. S/RES/687 (1991)).
34. Id. at 27–28. However, there was not a consensus: “Other states referred to Protocol I and ENMOD, while a third group suggested that peacetime environmental law carried forward into periods of hostilities and applied in the case of the Gulf War.” Id.
35. Article 23(a) prohibits the use of “poison or poisoned weapons,” while article
23(h) deals with destruction or seizure of the enemy’s property. The Hague Convention
IV Laws and Customs of War on Land, art 23(a), Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277 [hereinafter Hague Convention IV].
36. Mark J.T. Caggiano, The Legitimacy of Environmental Destruction in Modern
Warfare: Customary Substance Over Conventional Form, 20 B.C. ENVTL. AFF. L. REV.
479, 486−87 (1993).
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Recognition of the seriousness of environmental harm grew when the
world witnessed the devastation of Vietnam’s forests by the use of the
herbicide Agent Orange, and thus the international community formulated conventions that would more directly address such environmental
destruction.37 The Additional Protocol I to the Geneva Convention, the
Convention on the Prohibition of Military or any Other Hostile Use of
Environmental Modification Techniques, and the Rome Statute all contain language that makes it a violation of international law to exceed certain bounds of environmental destruction resulting from military combat.38 In addition, the international community has sought to prosecute
such violations through statutes adhering to ad hoc tribunals created to
punish war crimes violations. For example, article 13(b)(5) of the Iraqi
Statute contains language similar to the above-mentioned treaties.39
III. INTERNATIONAL AGREEMENTS PROSCRIBING ENVIRONMENTAL
DESTRUCTION LACK EFFECTIVE ENFORCEMENT MECHANISMS
The fact that neither states nor individuals have been held accountable
for war-related environmental crimes since Nuremburg,40 and that intense environmental destruction, as seen in the recent war between Israel
and Lebanon, continues without fear of retribution illustrates the ineffectiveness of these treaties as a deterrent.
Several reasons have been put forth to explain why these conventions
have not been successful tools in prosecuting environmental war crimes.
First of all, the language addressing the limits of environmental harm in
37. Cohan, supra note 18, at 485. See also Caggiano, supra note 36 at 488 (“The
nations of the world drafted [the Environmental Modification Convention] in response to
the massive, albeit unsuccessful attempts by the United States to use weather modification to harass the North Vietnamese during the Vietnam war.”) (citing Stockholm International Peace Research Institute (Sipri), WEAPONS OF MASS DESTRUCTION AND THE
ENVIRONMENT 59 (1977)).
38. Weinstein, supra note 16 (citing Convention on the Prohibition of Military or Any
Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 U.S.T.
333, T.I.A.S. No. 9614; Protocol Additional to the Geneva Conventions Relating to the
Protection of Victims of International Armed Conflicts, June 8, 1977, 16 I.L.M. 1391,
U.N. Doc. A/32/144 (1977); Rome Statute, supra note 5.
39. Id. at 706.
40. During the Nuremberg proceedings, General Alfred Jodl was found guilty of “war
crimes associated with scorched earth tactics in Northern Norway, Leningrad, and Moscow,” while certain German civilian officials were tried for “ruthless exploitation of Polish forestry.” Bruch, supra note 6 at 716 (citing the Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany,
pt.22, at 517 (1950) and Aaron Schwabach, Environmental Damage Resulting From The
Nato Military Action Against Yugoslavia, 25 COLUM. J. ENVTL. L. 117, 125 (citing United
Nations War Crimes Commission, Case No. 7150 496 (1948)).
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both the Additional Protocol I and the Rome Statute has been described
as too vague and undefined.41 Both agreements proscribe “widespread,
long-term and severe” damage to the natural environment.42 The problem
is the difficulty of articulating what widespread, long-term and severe
mean.43 Furthermore, the requirement that all three factors, (wide-spread,
long-term, and severe) must be demonstrated, establishes a high threshold for criminal prosecution. Finally, with respect to the Rome Statute,
prosecution of military actors is difficult due to two other features of the
statute: it balances military concerns against environmental integrity and
requires proof of intent. Article 8(2)(b)(iv) of the Rome Statute makes it
a crime when
[i]ntentionally launching an attack in the knowledge that such attack
will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete
and direct overall military advantage anticipated.
The Rome Statute essentially tolerates environmental destruction when
it is undertaken to secure a military advantage, and is not “clearly excessive,” a term itself undefined. It is also unclear whether the “anticipated”
advantage is to be gauged on an objective or subjective standard. If
judged on a subjective standard, this would also create problems of
proof.44 The challenges that arise from this potential subjective standard
for judging military advantage are augmented by the need to prove that
an accused had knowledge that the environmental destruction in question
would result from the attack. In sum, it must be proven that 1) the individual responsible had knowledge that the attack would cause such damage and 2) that the perpetrator acted willingly to cause such destruction,
a much higher standard than that of recklessness or negligence.45 In addition, because the Rome Statute, which is applied through the International Criminal Court (“ICC”), cannot supersede national procedures, the
41. Weinstein, supra note 16, at 707; Cohan, supra note 18, at 502.
42. Protocol I, supra note 3; Rome Statute, supra note 5.
43. Huston, supra note 8, at 906. “Long-lasting” in the ENMOD Convention has been
interpreted in Understanding I of the Conference of the Committee on Disarmament as
constituting a period of months or a season, while the Commentary to Protocol I defines
long-lasting as “matter of decades.” See ENMOD, Understanding Relating to article 1,
supra note 4; Protocol I, supra note 3.
44. Mark A. Drumbl, International Human Rights, International Humanitarian Law,
and Environmental Security: Can the International Criminal Court Bridge the Gaps?, 6
ILSA J. INT’L & COMP. L. 305, 319−21 (2000).
45. Id. at 322.
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ICC is precluded from asserting jurisdiction in countries with functioning
legal mechanisms that can address environmental crimes.46
The Additional Protocol and Rome Statute share the further drawback
that neither has been ratified by the United States,47 a nation whose participation in large-scale military activities worldwide48 makes its absence
particularly notable and troubling in terms of deterring environmental
damage through criminal prosecution. Though ENMOD has been ratified
by the United States, and has the further advantages of more precisely
defining the words “widespread, long-lasting or severe” and proscribing
environmental harm without regard to military necessity or advantage, it
has been held to ban only manipulation of the environment as a weapon,
as opposed to destruction of the environment as a collateral effect or intentional act.49
46. JOE SILLS, JEROME C. GLENN, ELIZABETH FLORESCU & THEODORE J. GORDON, U.S.
ARMY ENVIRONMENTAL POLICY INSTITUTE, ENVIRONMENTAL CRIMES IN MILITARY
ACTIONS AND THE INTERNATIONAL CRIMINAL COURT (ICC)—U.N. PERSPECTIVES (APRIL
2001), available at http://www.acunu.org/millennium/es-icc.html.
47. Protocol I, supra note 3; Rome statute, supra note 5.
48. For example, the United States supplied most of the weapons used by Israel in its
recent bombing campaign against Lebanon. DEMOCRACY NOW!: U.S. Arming of Israel: How U.S. Weapons Manufacturers Profit From Middle East Conflict, Interview
with Frida Berrigan, a Senior Research Associate with the Arms Trade Resource Center
and at the World Policy Institute [hereinafter U.S. Arming of Israel], http://www.
democracynow.org/article.pl?sid=06/07/21/1432202 (last visited Dec. 29, 2007). These
weapons are “part of a multimillion-dollar arms sale package approved last year that
Israel is able to draw on as needed.” David S. Cloud & Helene Cooper, U.S. Speeds Up
Bomb Delivery for the Israelis, N.Y. TIMES, July 22, 2006, available at
http://www.nytimes.com/2006/07/22/world/middleeast/22military.html?ex=1311220800
&en=e256f1d8872a835d&ei=5088&partner=rssnyt&emc.
49. Cohan, supra note 18, at 519 (citing Understanding Relating to Article I, Report
of the Conference of the Committee on Disarmament, U.N. GAOR, 31st Sess., Supp. No.
27, at 91–92, U.N. Doc. A/31/27 (1976)).
It is the understanding of the Committee that, for the purposes of this Convention, the terms “widespread,” “long-lasting” and “severe” shall be interpreted as
follows: (a) “widespread”: encompassing an area on the scale of several hundred square kilometers; (b) “long-lasting”: lasting for a period of months, or
approximately a season; (c) “severe”: involving serious or significant disruption or harm to human life, natural and economic resources or other assets. It is
further understood that the interpretation set forth above is intended exclusively
for this Convention and is not intended to prejudice the interpretation of the
same or similar terms if used in connection with any other international agreement.”
Id.
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Given the lack of clear guidelines and the heavy burdens of proof in
conventions addressing environmental war crimes, it is not surprising
that international criminal tribunals such as the ICC have failed to prosecute these crimes. Ad hoc tribunals are not well equipped to prosecute
war crimes either, since most of the tribunals are not directly empowered
to charge individuals for environmental destruction50 and thus must rely
on the conventions cited above. For example, the prosecutor for the International Criminal Tribunal for Yugoslavia (“ICTY”) failed to prosecute NATO for potential violations of articles 35 and 55 of Additional
Protocol I upon recommendation of the Committee Established to Review the NATO Bombing Campaign, which had determined that the
NATO bombing had not reached the threshold level of Additional Protocol I and that military necessity could have played a role in choosing targets.51
While criminal charges of environmental crimes seem to encounter insurmountable burdens of proof to prosecute, civil liability for such
crimes has been established with some success through at least one notable mechanism. Iraq’s liability for its “unlawful” invasion of Kuwait and
the resulting loss to “foreign government, nationals and corporations,”
including “environmental damage and the depletion of natural resources,” was declared in the Security Council’s adoption of Resolution
687, and through Resolution 692, the UNCC was established to administer payments.52
The last line indicates a reluctance to allow the standards defined here to apply in any
other context, and thereby become an international standard.
50. Weinstein, supra note 16, at 704−05. Weinstein points out that none of the following are either directly charged with or have jurisdiction over crimes against the environment: the Internal Criminal Tribunal for Yugoslavia (“ICTY”), the International
Criminal Tribunal for Rwanda (“ICTR”), the Law on the Establishment of Extraordinary
Chambers for Cambodia, and the Special Tribunal for Sierra Leone. Id.
51. Weinstein, supra note 16, at 704 (citing Final Report to the Prosecutor by the
Committee Established to Review the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia (Final Report) ¶¶ 14−25, available at http://www.un.org
/icty/pressreal/nato061300.htm). The Final Report argues that prosecution of NATO for
war crimes is not warranted on several grounds, namely that (1) France and the United
States have not ratified Additional Protocol I; (2) application of articles 35 and 55 is “extremely stringent and their scope and contents imprecise” and that the cumulative standard contributes to this high threshold for application; and (3) that the difficulty of proving the mens rea of intentionality as well as the balancing factor of military necessity
and/or advantage led the Commission to its decision not to recommend prosecution of
NATO for environmental war crimes. Id.
52. Huston, supra note 8, at 911 (citing S.C. Res. 687, ¶ 16, U.N. Doc. S/RES/687
(1991)).
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Though the UNCC can be termed successful in some respects, having
awarded $14 trillion in compensation to 1,506,458 claimants,53 there
were some drawbacks to this mechanism. First of all, out of the six categories of claims (A through F) established by the UNCC to compensate
individuals, corporations, governments and international organizations,
the category F claims for environmental damages were the lowest priority of claims.54 The fact that ten years passed before the first award of
environmental damages illustrates this well.55 Cash flow was also a problem in distributing the awards as Iraq was not cooperative in exporting
the oil that would generate revenue for the fund.56 What is of greater
concern is whether the UNCC is a viable type of mechanism to compensate for environmental losses by other violators, such as Israel, or for that
matter, Hezbollah, whose rockets burned thousands of acres of Israeli
forests.57 It is especially problematic to extract the necessary funding for
such clean-ups from non-state entities in terms of gaining access to their
wealth.58 What is promising about the UNCC though is that the claims
brought against Iraq for environmental harms considered not justifiable
by military necessity and violative of the laws of proportionality, as argued by the United States, and violative of Additional Protocol I and
ENMOD, as argued by other states,59 strengthen the argument that customary law prohibits excessive environmental destruction inflicted during war.
IV. THE ALIEN TORT CLAIMS ACT AND AN ANALYSIS OF DOCTRINES
LIMITING ITS APPLICATION
The Alien Tort Claims Act (“ATCA”), enacted in 1789, states that
“district courts shall have original jurisdiction of any civil action by an
alien for a tort only, committed in violation of the law of nations or a
treaty of the United States.”60 The ATCA was little known or employed
53. Id. at 917.
54. Id. at 912.
55. Id. at 913.
56. Id. at 915–16.
57. Dina Kraft, Dry Forests in Northern Israel are Damaged as Hezbollah’s Rocket
Attacks Ignite Fires, N.Y. TIMES, Aug. 7, 2006, available at http://www.nytimes
.com/2006/08/08/world/middleeast/08fires.html. An estimated 9000 acres of land and
almost 3000 acres of forest have been damaged by fire resulting from the firing of rockets
across the Israeli-Lebanon border.
58. Huston, supra note 8, at 919. Huston cites Al Qaeda as an example of a terrorist
organization that caused environmental damage in the September 11 attack and the difficulties in “identify[ing] and gain[ing] access to all their funding sources.” Id.
59. Schmitt, supra note 33, at 27−28.
60. 28 U.S.C.A. § 1350.
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until 1978 when Paraguayan immigrants living in the United States
brought suit against a former Paraguayan policeman, Filartiga, who they
accused of torturing and killing their son in Paraguay years earlier.61 Filartiga established that the court had jurisdiction over claims that violated
“universally accepted norms of the international law of human rights”62
and that “deliberate torture perpetrated under color of official authority”
fell within that category.63 That such torture was a violation of universally accepted norms was proven by the “numerous international agreements, and the renunciation of torture as an instrument of official policy
by virtually all of the nations of the world (in principle if not in practice).”64 The court rejected the appellee’s claim “that the law of nations
forms a part of the laws of the United States only to the extent that Congress has acted to define it.”65
The Second Circuit ruling in Kadic v. Karadzic expanded liability under the ATCA to include private actors for certain violations of international law,66 including genocide67 and war crimes such as “murder, rape,
torture, and arbitrary detention of civilians.”68 Private entities such as
corporations have also been deemed liable for violations of international
law under the ATCA.69
However, there are ways in which courts have narrowed the scope of
jurisdiction over ATCA claims. The courts may narrow the scope of
61. Anne-Marie Slaughter and David L. Bosco, Alternative Justice, GLOBAL POLICY
FORUM, http://www.globalpolicy.org/intljustice/atca/2001/altjust.htm, last visited Mar. 4,
2008. See also Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
62. Filartiga, 630 F.2d at 878.
63. Id.
64. Id. at 880.
65. Id. at 886−87.
66. Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995). The court relied on the
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §404
(1986) [hereinafter FOREL] to identify crimes for which individuals may be held liable
under international law. Kadic, 70 F.3d at 240.
67. Kadic, 70 F.3d at 242.
68. Id. at 242−44.
69. Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) (finding that plaintiff’s allegations of the corporate defendant’s complicity in forced labor, murder, and rape, if proven, sufficiently alleged violations of international law under the ATCA); Presbyterian
Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 296 (S.D.N.Y. 2003)
(finding that plaintiffs sufficiently alleged human rights violations including torture, enslavement, war crimes, and genocide); Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1074 (9th
Cir. 2006) (plaintiffs alleging that an international mining company, with state assistance,
committed violations against international law including “racial discrimination, environmental devastation, war crimes and crimes against humanity”).
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what can determine international law70 or narrowly construe the range of
violations of international law cognizable under the ATCA.71 Furthermore, the courts will limit the application of the ATCA against private
individuals when they determine that the alleged violation of international law does not apply to non-state actors.72 ATCA claims have also
been rejected based on claims of forum non conveniens,73 exhaustion
requirements,74 or domestic and foreign policy considerations.75
Several jurisdictional bases for ATCA claims were narrowed under the
Supreme Court case of Sosa v. Alvarez-Machain.76 First, the Court, restricting the kinds of claims cognizable under ATCA, found that it had
no jurisdiction under the ATCA to hear the appellee’s claims because
they did not fall within the “handful of heinous actions” that “violate[]
definable, universal and obligatory norms,”77 and hence there was no
violation of “customary international law so well defined as to support
the creation of a federal remedy.”78 In addition, the Court determined that
international agreements upon which the claimant relied to establish that
70. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734−35 (2004).
71. Id. at 732−733.
72. Kadic, 70 F.3d. at 243−44 (holding that individuals are only liable for torture if
acting in an official capacity).
73. Aguinda v. Texaco, 303 F.3d 470, 476−480 (2d Cir. 2002).
74. Sosa, 542 U.S. at 733 n.21.
75. See In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7,
47−48 (E.D.N.Y. 2005); Sosa, 542 U.S. at 733.
76. Sosa, 542 U.S. at 697, 736−37 (finding that the ATCA did not provide jurisdiction for Alvarez’s arbitrary detention claim when the claimant was abducted in Mexico
and brought to the U.S. for a criminal trial). The Supreme Court reversed the Ninth Circuit’s holding that “[t]he unilateral, nonconsensual extraterritorial arrest and detention of
Alvarez were arbitrary and in violation of the law of nations under the ATCA.” AlvarezMachain v. United States, 331 F.3d 604, 620 (9th Cir. 2003). A central difference in judicial opinion revolves around the question of whether The Universal Declaration of Human Rights (“UDHR”) and/or the International Covenant of Civil and Political Rights
(“ICCPR”) can impose obligations on the United States to recognize arbitrary detention
as a violation of international law. The 9th Circuit holds that they do impose such obligations in Alvarez-Machain, 331 F.3d at 620−21, while the Supreme Court said that the
UDHR does not impose obligations on its own and that the ICCPR was not selfexecuting. Sosa, 542 U.S. at 734−35.
77. Sosa, 542 U.S. at 732−733 (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d
774 (D.C. Cir. 1984)).
78. Id. at 738. The Court also held that “that federal courts should not recognize private claims under federal common law for violations of any international law norm with
less definite content and acceptance among civilized nations than the historical paradigms
familiar when § 1350 was enacted.” Id. at 732. Those historical paradigms were said to
include “offenses against ambassadors,” “violations of safe conduct,” and “individual
actions arising out of prize captures and piracy.” Id. at 720.
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arbitrary arrest was a violation of international law did not support his
claim, namely, the Universal Declaration of Human Rights (“UDHR”)
and the International Covenant of Civil and Political Rights (“ICCPR”).
The Court concluded that the UDHR has “moral authority” but does not
impose specific legal obligations, and that the ICCPR was not held to be
self-executing by the United States and therefore requires further Congressional action to enforce any of its precepts.79 The Court also rejected
the appellee’s assertion of binding customary law based on the prohibition against arbitrary detention in several state constitutions, as well as
judicial rulings on both an international and national (U.S.) level. The
Court maintained that the norm against arbitrary detention illustrated in
state constitutions was at “a high level of generality,” and that the Court
was unwilling to assert its federal judicial discretion over an arbitrary
detention claim based on customary international law.80 Finally, the
Court suggested that exhaustion of international tort claims may require
exhaustion in domestic courts or in other international tribunals.81
The argument that the ATCA was originally intended to cover a limited range of claims asserting violations of the law of nations has been
made by several courts.82 However, the bar has not been set so high as to
eliminate claims that do not rise to the level of jus cogens.83 Of course
79. Sosa, 542 U.S at 734−35.
80. Id. at 736−37 n.27.
81. Id. at 733 n.21. The Court cites the argument in the European Commission amicus
curiae’s brief that “basic principles of international law require that before asserting a
claim in a foreign forum, the claimant must have exhausted any remedies available in the
domestic legal system, and perhaps in others such as international claims tribunals.” Id.
82. Filartiga, 630 F.2d at 887−88; Sosa, 542 U.S. at 719−20 (relying on An Act for
the Punishment of Certain Crimes Against the United States § 8, 1 Stat. 113−114 and id.
§28, at 118, to infer that Congress intended to restrict ATCA jurisdiction to a “relatively
modest set of actions alleging violations of the law of nations” including “offenses
against ambassadors,” “violations of safe conduct,” as well as “prize captures and piracy”). However, the Court in Sosa concedes that a consensus understanding of Congressional intent with respect to private actions subject to the jurisdictional provision of the
ATCA has proven elusive. Id. at 718−19. See also In re Agent Orange, 373 F. Supp. 2d at
46−47.
83. Under article 53 of the Vienna Convention, a jus cogens (or peremptory) norm is:
“a norm accepted and recognized by the international community of States as a whole as
a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Vienna Convention on the Law of Treaties, article 53, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter
Vienna Convention]. The Court in Sosa does not discuss whether or not the violation
must rise to the level of a jus cogens violation. Sosa, 542 U.S. 692. The court in Unocal
asserted that “[a]lthough a jus cogens violation is, by definition, a violation of specific,
universal, and obligatory international norms that is actionable under the ATCA, any
violation of specific, universal, and obligatory international norms—jus cogens or not—is
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the ultimate decision at to whether a given violation rises to the level of a
norm that is “definable, universal and obligatory”84 is based on what
sources of international law the court is willing to accept. In Sosa, the
Supreme Court’s cursory rejection of the internationally recognized declarations and agreements cited to support the ATCA claims was founded
on insubstantial analysis compared to other jurisprudence.85 Furthermore,
the Court refused to acknowledge appropriate sources of customary international law86 on the grounds that the norms thus embodied in various
documents were too general,87 and that courts that have held otherwise
simply go further than the Supreme Court was willing to go,88 suggesting
that the Court circumscribed the limits based on nothing more than its
own desire to do so.
With regard to non-state actors, courts have determined that liability
under the ATCA is limited to “certain forms of conduct [that] violate the
law of nations whether undertaken by those acting under the auspices of
a state or only as private individuals.”89 Included among those violations
actionable under the ATCA.” Unocal, 395 F.3d 932, 945, n.15 (9th Cir. 2002) (internal
quotes and citations omitted).
84. Sosa, 542 U.S. at 732 (citing Tel-Oren, 726 F.2d at 781).
85. The Sosa court cites one source to support its assertion that the UDHR is merely
moral authority; the Court references Eleanor Roosevelt’s statement that the UDHR is
“not a treaty or international agreement . . . impos[ing] legal obligations.” Sosa, 542 U.S.
at 734−35. This is in notable contrast to the evidence cited by the Filartiga court that the
UDHR provides much more than moral authority. The Filartiga court cites several U.N.
issued statements regarding the U.N. Charter, which include the statement that a U.N.
Declaration is “a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated” (emphasis added) and that
“insofar as the expectation is gradually justified by State practice, a declaration may by
custom become recognized as laying down rules binding upon the States.” Filartiga, 630
F.2d at 883 (citing 34 U.N. ESCOR, Supp. (No. 8) 15, U.N. Doc. E/cn.4/1/610 (1962)).
Filartiga also cites a source that states that the UDHR “no longer fits into the dichotomy
of ‘binding treaty’ against ‘non-binding pronouncement’ but is rather an authoritative
statement of the international community.” Id. at 883 (citing E. Schwelb, HUMAN RIGHTS
AND THE INTERNATIONAL COMMUNITY 70 (1964)).
86. Such sources of customary law have been held to consist of “general and consistent practice of states followed by them from a sense of legal obligation,” which in turn
can be established by international agreements inasmuch as they represent the practice of
states. In addition, general principles of law, as practiced by states on a domestic level
“may sometimes convert such a principle into a rule of customary law.” FOREL, supra
note 66, § 102. Thus the Court’s cursory rejection of the UDHR, the ICCPR and the domestic law of states is misguided. Sosa, 542 U.S. at 734−35.
87. Sosa, 542 U.S. at 736−37 n.27.
88. Id. at 737 n.27.
89. Kadic, 70 F.3d at 239. To support its assertion that liability exists for non-state
actors, the court relies on historical evidence that individuals such as pirates were prose-
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are genocide, war crimes, and forced labor, while torture is an act that
only makes those acting in an official capacity liable under the ATCA.90
However, several theories exist for holding private actors liable when
they are intertwined with state actors who violate international law, thus
broadening the scope of liability for private actors.91 This issue is particularly relevant for holding corporate actors liable under the ATCA for
violations that do not violate peremptory norms.92 With respect to environmental war crime, there is evidence that it has not reached that level
of universal condemnation.93
The exhaustion requirement that the Supreme Court in Sosa mentions
in passing was not applicable there,94 but has been discussed in other
cuted under the law of nations (citing United States v. Smith, 18 U.S. (5 Wheat) 153, 161
(1820)). The Court cites the Restatement (Third) of the Foreign Relations Law of the
United States (1986), which states that “[i]ndividuals may be held liable for offenses
against international law, such as piracy, war crimes, and genocide.” FOREL, supra note
66, pt. II, introductory note. The court goes on to note the Restatement’s extension to
other violations of “universal concern.” Id. at 239−40.
90. Kadic, 70 F.3d at 241−44 (finding that genocide and war crimes constitute violations of international law for which individuals are liable; also finding that torture is not
included in this category); Unocal, 395 F.3d at 946–948 (finding that private actors are
liable for forced labor under the ATCA).
91. Theories that expand private actors’ liability under international law include the
joint-action theory, acting under color of law, and aiding and abetting. See, e.g., Presbyterian Church, 244 F. Supp. 2d at 328 (finding that private actors are “considered state
actors if they are willful participant[s] in joint action with the State or its agents”) (citations omitted); Kadic, 70 F. 3d at 245 (finding that under 42 U.S.C. § 1983, “[a] private
individual acts under color of law within the meaning of section 1983 when he acts together with state officials or with significant state aid”) (citing Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982)); Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1078 n.5 (2006)
(holding that “violations of the laws of nations have always encompassed vicarious liability”).
92. Peremptory norms are also known as jus cogens norms. See Vienna Convention,
supra note 83, art. 53.
93. For example, FOREL § 404 cmt. (a) states that “[u]niversal jurisdiction over the
specified offenses is a result of universal condemnation of those activities and general
interest in cooperating to suppress them, as reflected in widely-accepted international
agreements and resolutions of international organizations. These offenses are subject to
universal jurisdiction as a matter of customary law.” It includes violations such as “piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps
certain acts of terrorism . . . .” Id. It may be difficult at this stage to show that environmental war crimes are proscribed in widely accepted international agreements.
94. The Court made reference to the amicus brief of the European Commission,
which asserted that “basic principles of international law require that before asserting a
claim in a foreign forum, the claimant must have exhausted any remedies available in the
domestic legal system, and perhaps in other forums such as international claims tribu-
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645
cases.95 Though exhaustion is clearly an element of the Torture Victims
Protection Act (“TVPA”) (codified under 28 U.S.C. § 1350 like the
ATCA),96 there is no clear consensus among courts that it need apply to
other claims brought under the ATCA.97 It is thus not an insurmountable
barrier. Furthermore, even if a court did require exhaustion, this would
be excused in cases in which the plaintiff’s efforts in the forum state
would be futile.98
Other courts have accepted defendants’ motions to dismiss ATCA
claims arguing on forum non conveniens grounds.99 The two-prong test
nals.” However, the Court did not deem it appropriate to apply in the case at hand. Sosa,
542 U.S. at 733 n.21.
95. See, e.g., Sarei, 456 F.3d at 1089−90.
96. The TVPA states that “[a] court shall decline to hear a claim under this section if
the claimant has not exhausted adequate and available remedies in the place in which the
conduct giving rise to the claim occurred.” 28 U.S.C.A. § 1350.
97. For example, the court in Sarei refused to require exhaustion because it found that
the legislative history of the ATCA did not reflect unambiguously Congress’s intent that
“international exhaustion was required . . . before an ATCA claim could be heard in a
U.S. court.” Sarei, 456 F.3d at 1093. The Sarei court also points out the lack of consensus
in several ATCA cases. Id. at 1089. It cites decisions that do not require exhaustion, see,
e.g., Alperin v. Vatican Bank, 410 F.3d 532, 544−58 (9th Cir. 2005); In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467−76 (9th Cir. 1994), as well as opinions that do suggest that exhaustion might be appropriate under the ATCA, see, e.g.,
Judge Cudahy’s opinion in Enahoro v. Abubakar, 408 F. 3d 877, 889−90 (7th Cir. 2005).
Sarei, 456 F.3d at 1089. However, the Sarei court concludes that because Congress has
not clearly mandated exhaustion for ATCA claims, “sound judicial discretion” governs
whether or not exhaustion will be required. Id. at 1090.
98. See Presbyterian Church, 244 F. Supp. 2d at 343 n.44 (finding that no precedent
exists for enforcing exhaustion requirements when efforts to do so would be futile).
99. See Aguinda, 303 F.3d at 476−80; Flores v. S. Peru Copper Corp., 253 F. Supp.
2d 510, 539 (S.D.N.Y. 2002). This has been an especially effective defense in cases involving environmental pollution. Lorelle Londis, The Corporate Face of The Alien Tort
Claims Act: How an Old Statute Mandates a New Understanding of Global Interdependence, 57 ME. L. REV. 141, 181−85 (2005) (citing Jeffrey B. Gracer, Protecting Citizens of
Other Countries, in THE LAW OF ENVIRONMENTAL JUSTICE: THEORIES AND PROCEDURES
TO ADDRESS DISPROPORTIONATE RISK 727–28 (Michael B. Gerrard ed., 1999). In footnote 314, Londis cites Gerrard’s string cite of cases to illustrate the frequency of dismissal of environmental claims on forum non conveniens grounds: Torres v. Southern
Peru Copper Corp., 113 F.3d 540 (5th Cir. 1997) (dismissing toxic tort suit brought by
700 Peruvian citizens against copper company); In re Union Carbide Corp. Gas Plant
Disaster, 634 F. Supp. 842 (S.D.N.Y. 1986), aff’d in part, modified in part, 809 F.2d
1295 (2d Cir. 1987), cert. denied, 485 U.S. 871 (1987) (dismissing action against Union
Carbide for a catastrophic leak of methyl icocyanate in Bhopal, India); Delgado v. Shell
Oil Co., 890 F. Supp. 1324 (S.D. Tex. 1995) (dismissing actions brought by farm workers
from 23 countries alleging chemical exposure); Sequihua v. Texaco, 847 F. Supp. 61
(S.D. Tex. 1994) (dismissing suit Ecuadoreans alleging massive air, soil, and water contamination). Id. at 182 n.314.
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applied by the courts100 tends to favor the defendants in ATCA cases because the first prong considers the adequacy of the alternative forum recommended by the defendant, and in the interests of comity, U.S. courts
are reluctant to offend the foreign state by finding it inadequate.101 There
is clearly some overlap between finding exhaustion claims futile and the
ruling under the doctrine of forum non conveniens claim that the foreign
forum is inadequate. Thus a plaintiff could prevail on both motions to
dismiss if it is demonstrated that no feasible alternative forum exists.
With respect to the second prong of the forum non conveniens test, balancing public and private interest in litigating in the chosen forum, courts
may consider the policy interest of the United States in determining public interest and could find that dismissal on this basis may “frustrate
Congress’s intent to provide a federal forum for aliens suing domestic
entities for violation of the law of nations.”102 Thus, the policy interests
of the United States could play a role in determining the public interest in
allowing a U.S. forum for adjudication.103
One of the main barriers to ATCA claims is the reluctance of courts to
interfere with U.S. foreign policy.104 Two prudential doctrines that courts
draw upon in assessing whether the judiciary can assert itself in a given
100. The court “first considers whether an adequate forum exists. If so, it must then
balance a series of factors involving the private interests of the parties in maintaining the
litigation in the competing fora and any public interests at stake.” Aguinda, 303 F.3d at
476 (internal quotes and citations omitted). Private interests have been held to include
access to evidence and witness amenability, while public interest factors consider the
public’s interest in the controversy as well as the administrative burden placed on courts
in presiding over the case and applying foreign law. Londis, supra note 99, at 182 (citing
Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1164 (C.D. Cal. 2002) (internal citations
omitted).
101. Londis, supra note 99, at 185. Londis also points out that dismissal on these procedural grounds may also be favored because it is less controversial than prudential doctrines such as the political question. Id. at 185.
102. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 (2d Cir. 2000) (citing Jota
v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998)).
103. For example, the court in Wiwa views the TVPA as expressing a policy in favor
of allowing U.S. federal courts jurisdiction over cases of torture. Wiwa, 226 F.3d at 105.
Factors also cited by the court in overturning the dismissal on grounds of forum non conveniens included the fact that two plaintiffs were residents of the United States, the “very
substantial expense and inconvenience” that would be imposed on the plaintiffs were the
suit to be dismissed in favor of the foreign forum, and that the inconvenience to the defendants was minimal. Id. at 106.
104. See, e.g., In re Agent Orange, 373 F. Supp. 2d at 48 (finding that allowing the suit
to proceed would interfere with the U.S. government’s negotiation of war reparations
with Vietnam, thus “impinging on the discretion of the Legislative and Executive
Branches in managing foreign affairs”) (internal citations and quotations omitted).
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ATCA case are the political question doctrine and act of state doctrine.105
The political question doctrine consists of a six factor test that focuses
primarily on whether a judicial decision would undermine the authority
of the executive or legislative branches.106 The act of state doctrine focuses more specifically on the consequences a judgment regarding a foreign state may have on U.S. foreign policy.107 However, courts have held
that political questions do not automatically prevent courts from determining the legality of executive action.108 An implicit part of the court’s
determination of how much weight to give this factor is the political
pressure applied to the judiciary by the executive branch.109
105. The act of state and/or political question doctrines have been invoked in a number
of notable ATCA cases. See, e.g., Tel-Oren, 726 F.2d at 796; Kadic, 70 F.3d at 248−49;
In re Agent Orange, 373 F. Supp. 2d at 48; Sarei, 456 F.3d at 1079, 1084.
106. The six factors discussed in Baker v. Carr are:
(1) the matter is constitutionally committed to a coordinate branch of government; (2) no “judicially discoverable and manageable standards” exist to guide
the court’s analysis; (3) it is impossible to decide the case without making an
initial policy determination that should rightfully be made by a separate branch;
(4) deciding the case would express “a lack of respect” to a coordinate branch
of government; (5) there is “an unusual need for unquestioning adherence to a
political decision already made;” or (6) the potential embarrassment to the U.S.
government could arise as a result of “multifarious pronouncements by various
departments on one question.”
Londis, supra note 99, at 186 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). In Sarei,
the court addressed factors one, four, five and six. Sarei, 456 F.3d at 1079.
107. The act of state doctrine “prevents U.S. courts from inquiring into the validity of
the public acts of a recognized sovereign power committed within its own territory.”
Sarei, 456 F.3d at 1084 (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401
(1964)). Thus an action may be dismissed if “(1) there is an ‘official act of a foreign sovereign performed within its own territory’; and (2) ‘the relief sought or the defense interposed [would require] a court in the United States to declare invalid the [foreign sovereign’s] official act.’” Id. at 1084 (citing W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 405 (1990)).
108. “[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Londis, supra note 99, at 186 (citing Baker, 369
U.S. at 211). Courts should investigate the history of the issue in question to determine
whether it is “susceptible to ‘judicial handling’ and consider ‘other possible consequences of judicial action.’” Id. (citing Baker, 369 U.S. at 211−12).
109. Londis notes that statements of interest by the State and Justice Departments have
been influential in the courts’ decision to allow ATCA claims to proceed. In particular,
Londis observes that the Carter Administration supported Filartiga and that the Clinton
Administration supported plaintiffs in Kadic and Unocal; the author contrasts that with
the position of the Bush Administration, which did not support plaintiffs in Doe v. Exxon
Mobil, nor in Sarei v. Rio Tinto. The successful suits were ones in which the executive
branch had not argued against the plaintiffs. Londis, supra note 99, at 188−91 (cases
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V. APPLICATION OF THE ATCA AGAINST MILITARY DEFENSE
CONTRACTORS FOR ENVIRONMENTAL WAR CRIMES
In an ATCA case brought against military defense contractors, defendants would seek to invoke one or more of these barriers. The defenses
they are most likely to rely on include the claim that environmental
harms do not constitute the “handful of heinous crimes” cognizable under the ATCA.110 Further, they might allege that even if such violations
are cognizable under the ATCA, they are not jus cogens violations and
thus require state action; state action could then suffice to persuade
judges that the suit infringes on the government’s right to determine foreign policy.111 The problem of state action will be discussed below,
where it is maintained that the defendants’ actions are clearly implicated
in illegal state conduct.
As U.S. defense contractors are among the leaders in weapons manufacturing internationally,112 it is likely that they could be defendants in
cited include Filartiga, 630 F.2d 876; Kadic, 70 F.3d 232; Nat’l Coalition Government of
the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 340 (C.D. Cal. 1997); Doe v. Exxon
Mobil Corp. (No. 01-1357) (D.D.C. filed June 20, 2001); Sarei, PLC, 221 F. Supp. 2d
1116 (C.D. Cal. 2002)). The court’s decision with respect to the political question issue in
Sarei was overruled. Sarei, 456 F.3d 1069 (9th Cir. 2006). The court found that the
statement of interest provided by the government did not establish that a political question precluding judicial oversight existed. Id. at 1083.
110. For example, the court in Beanal determined that the plaintiff’s allegations of
violations of international law with respect to the environment relied upon treaties that
merely referred to a “general sense of environmental responsibility and state abstract
rights and liberties devoid of articulable or discernable standards and regulations to identify practices that constitute international environmental abuses or torts,” and thus were
not cognizable under the ATCA. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161,
167 (5th Cir. 1999).
111. While the decision to wage war is certainly a state decision with serious political
repercussions, the courts do not refuse to hear cases solely because they implicate political questions. See, e.g., In re Agent Orange, 373 F. Supp. 2d at 64. The court noted that
even when a case “may call for an assessment of the President’s actions during wartime,”
this was “no reason for a court to abstain” and “that [p]residential powers are limited
even in wartime.” Id. at 64. Furthermore, the court declared that “[i]t is not a defense that
the spraying of herbicides was on orders of the President: Authorization by the head of
government does not provide carte blanche for a private defendant to harm individualism
violation of international law.” The court noted further that “[i]n the Third Reich all power of the state was centered in Hitler; yet his orders did not serve as a defense at Nuremberg. Justiciability is not eliminated because of possible interference with executive power even in wartime.” See also Sarei, 456 F.3d at 1081–84 (finding that the political question raised by the defense failed to bar jurisdiction despite the statement of interest provided by the government).
112. For example, in a list of the top one-hundred world leaders in the defense industry, forty-three of the top one hundred were U.S. companies; the top ten included seven
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ATCA litigation. Thus, this Note will seek to establish links between the
U.S. government and these industries to demonstrate the viability of the
ATCA in the context of a war-related environmental harm.
There is ample evidence that the defense industry has deep ties to the
political regime in the United States.113 It is not surprising that the industry cultivates such ties given the fact that U.S. decisions to engage in military operations bring financial windfalls to companies that manufacture
weapons.114 With so much money at stake, these corporations invest considerable sums to persuade Congress to award them lucrative defense
contracts.115 This lobbying effort, in turn, is likely to pay off, especially
in the current administration where policy makers have extensive financial ties to the arms industry.116 In fact, the huge contracts awarded such
defense contractors as Lockheed Martin suggest that these governmentU.S. companies, including Lockheed Martin, which was ranked number one. Defense
News Top 100, DEFENSENEWS.COM, available at http://dfn.dnmediagroup.com/index.
php?S=06top100 (last visited Mar. 18, 2008).
113. See infra note 116 (providing information regarding the personnel links between
the government and military contractors).
114. Evidence of the financial rewards associated with U.S. military engagement include a rise in stock shares in several major weapons manufacturing corporations including Northrop Grumman (increases in stock prices following September 11 and after
bombing in Afghanistan began), Raytheon, and Lockheed Martin. Frida Berrigan, The
War Profiteers: How are Weapons Manufacturers Faring in the War?, COMMON DREAMS
NEWSCENTER, Dec. 18, 2001, available at http://www.commondreams.org/views01
/1218-03.htm.
115. For example, Lockheed Martin invested over $9.8 million lobbying Congress in
2000. Berrigan, supra note 114. See also supra, note 117 (regarding the dollar amount of
Lockheed’s contract in 2000 and 2001).
116. As of May 2002, the Bush Administration had thirty-two policy makers with
“significant financial ties to the arms industry” before their appointments, including Vice
President Cheney and his wife Lynne, who received more than $500,000 as a director on
the board of Lockheed Martin from 1994–2001. William D. Hartung & Jonathan Reingold, About Face: The Role of the Arms Lobby in the Bush Administration’s Radical
Reversal of Two Decades of U.S. Nuclear Policy, THE GLOBAL POLICY INSTITUTE, May
2002, at 13, available at http://www.worldpolicy.org/projects/arms/reports/About
Face5.6.02.pdf (see “Through the Revolving Door”) (last visited Feb. 8, 2008). Other
notable members of the administration at this time (May 2002) with such ties included
Deputy Secretary of Defense Paul Wolfowitz, I. Lewis Libby, Vice President Cheney’s
Chief of Staff, Secretary of State Colin Powell, among several others. Id. at 20. Besides
seeking influence by lobbying Congress directly, numerous weapons contractors such as
Boeing, General Atomics, General Dynamics, Litton, Lockheed Martin, Northrop
Grumman, Textron, Thiokol and TRW, have donated money to the corporate think-tank
Center for Security Policy (“CSP”), which advocates the development of nuclear weapons and opposes arms control agreements. CSP, in turn, has “close ties to influential legislators . . . in the forefront of influencing U.S. nuclear and missile defense policies.”
Several of these legislators sit on the board of CSP. Id. at 28.
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corporate interrelationships have proven very beneficial to the industry.117 Furthermore, the development of Pentagon policy has also been
shaped by the cooperative advocacy of conservative think-tanks staffed
by numerous individuals who work for defense contractors.118 Attempts
to influence military engagement do not stop at helping to shape policy
or lobbying for contracts. There is evidence that defense contractors actively engage in campaigning for military action.119
The links between the defense industry and the state here go beyond an
overlap of personnel and philosophy of war-making. The development of
military technology is a shared enterprise of the government and the contractors. The Pentagon works with the contractors to design weapons120
and can exert control over the distribution of such technology worldwide.121
117. Lockheed Martin had contracts worth almost $30 billion in fiscal years 2000 and
2001 alone. Hartung & Reingold, supra note 116, at 14.
118. The National Institute for Public Policy (“NIPP”) produced a report that considerably influenced the Pentagon’s Nuclear Posture Review, evidenced by the similarity of
logic and language found in both documents. NIPP, in turn has board members who are
directly engaged in the weapons manufacturing industry, such as Charles Kupperman,
Vice President for National Missile Defense Programs at Lockheed Martin. Hartung &
Reingold, supra note 116, at 30.
119. Lockheed’s former vice-president Bruce Jackson was chair of the Coalition for
the Liberation of Iraq, a group that promoted Bush’s plan to invade Iraq. Jackson was
also involved in securing support for the war in Eastern Europe; Jackson even provided
assistance in drafting the letter of endorsement for such military intervention for these
countries. Corpwatch: Lockheed Martin, Corpwatch.org, available at http://www.
corpwatch.org/article.php?list=type&type=9^printsafe=1, (last visited Mar. 5, 2008).
120. For example, the Pentagon communicates its needs to contractors by “simulat[ing] the features and performances of weapon systems in computers” before the contractors begin production. Joshua A. Kutner, Robust Weapons Simulations Hinge on
Close Collaboration, NATIONAL DEFENSE BUSINESS AND TECHNOLOGY MAGAZINE, Jan.
2001, available at http://www.nationaldefensemagazine.org/issues/2001/Jan/Robust
_Weapon.htm (last visited Feb. 8, 2008). This simulations-based acquisition system
(“SBA”) allows “[t]he military services and contractors [to] work together to simulate all
aspects of a weapon system, such as design and performance, leading up to the development of a prototype. The military customer tells the contractor what properties it wants
the system to have, and the contractor incorporates those into the simulation. The contractor then can offer suggestions to improve the system.” Id. The Joint Strike Fighter
(“JSF”) and the DD-21 surface combatant were products of such a collaboration. Id.
Lockheed Martin is a manufacturer of the JSF. Lockheed Martin, JSF Program, available
at http://www.lockheedmartin.com/products/f35/JSFProgram.html (last visited Feb. 8,
2008). Northrop Grumman was given a contract to build the DD 21 in 1998. Press Release, Northrop Grumman Ship Systems (Aug. 17, 1998), available at http://www.ss.
northropgrumman.com/press/news/m_08_17_98.html (last visited Jan. 10, 2008).
121. For example, the Pentagon expressed reluctance to share the technology associated with the Joint Strike Fighter. Renae Merle, Iraq Coverage Helps Arms Exporters,
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LIABILITY FOR INTERNATIONAL WAR CRIMES
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Furthermore, with the increasing reliance of the government on private
military contractors122 to carry out a wide range of duties, the link between the state and the contractors has grown tighter. Contractors known
for their weapons manufacturing capability are now branching out to
provide other services such as training military personnel and providing
interrogators for prisons.123
Given the substantial links between the military contractors and the
state, their aligned efforts in establishing policy,124 developing weapons,
and engaging in other war-time activities,125 the actions of private military contractors can clearly be linked to the state for the purposes of finding liability for environmental war crimes under the ATCA.126
The color of law rule derived from Kadic,127 that a private individual or
entity acts under color of law when acting “together with state officials
Corpwatch.org, Apr. 1, 2003, available at http://www.corpwatch.org/article.php?id=
7871&printsafe=1 (last visited Nov. 24, 2006). The Joint Strike Fighter is a combat jet
built by Lockheed pursuant to a contract worth $200 billion. War Profiteer of the Month:
Lockheed Martin, Corpwatch.org, http://www.corpwatch.org/article.php?list=type&type
=9&all=1(last visited Jan. 28, 2008).
122. During the first Gulf War in 1991, the ratio of contractors to military personnel
was 1:50; in the 2003 conflict, it was 1:10. David Isenberg, A Fistful of Contractors: The
Case for a Pragmatic Assessment of Private Military Companies in Iraq, PMC Sector: A
Marriage Between Government and the Private Sector, AMERICAN BRITISH SECURITY
INFORMATION COUNCIL, available at http://www.basicint.org/pubs/Research/2004PMC2ii
.pdf (last visited Nov. 25, 2006).
123. For example, Northrop Grumman’s subsidiary, Vinnell Corporation obtained a
forty-eight million dollar contract to train the Iraqi National Army. Corpwatch: Northrop
Grumman, Corpwatch.org, available at http://www.corpwatch.org/article.php?list
=type&type=11&printsafe=1 (last visited Nov. 18, 2006). Also, Sytex, a subsidiary of
Lockheed, plays a significant role recruiting private interrogators operating in U.S.-run
prisons in Iraq and Afghanistan. See Pratap Chatterjee, Meet the New Interrogators:
Lockheed Martin, Corpwatch.org, Nov. 4, 2005, available at http://www.corpwatch.org
/article.php?id=12757.
124. Hartung & Reingold, supra note 116.
125. See supra notes 118 and 119.
126. Courts have found private actors can be implicated in state action under several
theories including the theories of joint-action with a state, acting under color of law, and
aiding and abetting state actors. See, e.g., Presbyterian Church v. Talisman Energy,
Inc., 244 F. Supp. 2d 289, 328 (S.D.N.Y. 2003) (finding that state actors are “considered
state actors if they are willful participant[s] in joint action with the State or its agents”)
(citations omitted); Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995) (finding that under 42 U.S.C. § 1983, “[a] private individual acts under color of law within the meaning
of section 1983 when he acts together with state officials or with significant state aid”)
(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)); Sarei v. Rio Tinto, PLC,
456 F.3d 1069, 1078 n.5 (2006) (holding that “violations of the law of nations have always encompassed vicarious liability”).
127. Kadic, 70 F. 3d 232.
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or significant state aid”128 is applicable here. The defense contractors
work with state officials to shape policy and develop weapons.129 They
also receive significant state aid in securing contracts, given the close
relationship that exists between the contractors and their representatives
in the administration.130 Secondly, the aiding and abetting theory articulated by the court in Unocal,131 holding liable a private entity that provides “practical assistance or encouragement which has substantial effect
on the perpetration of the crime,” applies to defense contractors as
well.132 The practical assistance is found in many instances: designing
weapons, training personnel to use aircraft, and other operations.133 The
encouragement is found in active lobbying and policy-making efforts.134
The perpetration of the environmental war crime is thus the result of
teamwork between the state and the defense contractor.135
CONCLUSION
The potential for massive casualties and irrevocable environmental
harm in armed conflict is greater today than ever before. The salting of
fields in Carthage, or the burning of crops and killing of livestock, are
trivial events compared to the long term environmental disasters brought
on by modern day weaponry, and the intensive assaults that they afford
the military. Furthermore, there exists no criminal justice mechanism
sufficient to bring rogue states to justice;136 states are also shielded by the
doctrine of foreign sovereign immunity against civil litigation.137 When
128. Id. at 245.
129. See supra notes 116 (policy) and 120 (developing weapons).
130. Hartung & Reingold, supra note 116, at 30.
131. Unocal, 395 F.3d at 947.
132. Id.
133. See Kutner, supra note 20.
134. See Hartung & Reingold, supra note 116, at 30.
135. In domestic lawsuits, military contractors have resorted to the military contractor
defense. See, e.g., In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 187, 190 (2d Cir.
1987) (finding that the defense contractor is shielded from liabilities “for injuries caused
by products ordered by the government for a distinctly military use, so long as it informs
the government of known hazards or the information possessed by the government regarding those hazards is equal to that possessed by the contractor.” However, when this
defense was asserted in a lawsuit against Dow Chemical (producers of Agent Orange)
under the ATCA, the court held that it was invalid.
136. Supra pages 9–13 and accompanying text explaining the failure of international
mechanisms to punish those who commit environmental war crimes.
137. See FOREL, supra note 66, § 451. “Under international law, a state or state instrumentality is immune from the jurisdiction of the courts of another state, except with
respect to claims arising out of activities of the kind that may be carried on by private
persons.” Id. Section 451 also discusses U.S. adherence to the “restrictive theory of im-
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653
the same privileges of immunity are extended to corporations involved in
warfare, accountability for humanitarian violations ceases.138
States in the international community implicitly acknowledge that the
victims of decisions to destroy the infrastructure and environment are
entitled to compensation.139 However, one problem is the funding of such
compensation. Under the current regime of accountability, U.S. taxpayers are compelled to pay for weapons designed to safeguard their own
country, and often to subsidize the weaponry of a foreign state.140 The
state may justify this in the interests of national security. On the other
hand, the taxpayer is billed again to clean up the damage done, while
corporate entities reap the profits and incur none of the liabilities.
The goal of ATCA suits is twofold: heightening public awareness of
environmental war crimes and those who perpetrate them and compensating the victims of the crimes, which in this case means providing the
funds to restore the environment as much as possible to its condition
prior to the armed attack. The ATCA has been asserted with mixed results.141 When successful, it may fail to bring financial relief,142 though it
munity,” which maintains that “a state is immune from any exercise of judicial jurisdiction by another state in respect of claims arising out of governmental activities.” Id. at
cmt. a. 28 U.S.C.A. § 1605 articulates exceptions to the immunity, stating that the actions
of the foreign state must either occur in, or have a direct effect on the United States. See §
1605(a)(1)–(5).
138. Adding weight to this argument is the point made by Londis that nation states
have “diminished power . . . in the globalized context,” while “[c]orporations are . . .
immensely powerful (often more so than governments) yet highly unregulated.” Londis,
supra note 99 at 180. Londis also points out that transnational corporations “are both
public and private entities—public actors engaged in ventures with foreign governments,
and private actors engaged in business for profit” such that “the distinction between public and private breaks down.” Thus, the corporation comes less and less to represent the
interests of the state. “Consequently, [such corporations] may be held to the rule of international law without disrupting the relationships among nation-states.” Id. at 195.
139. The United Nations Compensation Commission fund is an example of such recognition. The United Nations Compensation Commission, http://www2.unog.ch/uncc/
(last visited Mar. 4, 2008).
140. For example, Berrigan asserts that “the United States provides 20% of the Israeli
military budget on an annual basis, and then about 70% of that money provided by the
United States, from U.S. taxpayers, to Israel is then spent on weapons from Lockheed
Martin and Boeing and Raytheon.” U.S. Arming of Israel, supra note 48 (last visited Jan.
31, 2008).
141. Of the thirty-six corporate ATCA cases brought over the past thirteen years, twenty have been dismissed (three quarters of these on substantive legal grounds and one
quarter on procedural grounds). “Three have been settled out of court and 13 are ongoing.” Baue, supra note 15, at 12.
142. For example, Bosnian plaintiffs suing General Karadzic for human rights abuses
under the ATCA were awarded $4.5 billion but have not been able to collect that award.
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may provide a sense of closure or satisfaction to the victims, as well as
international attention to the crimes perpetrated against them. Other
times, the plaintiffs have not won in court but have been able to negotiate
settlements; this is particularly true in the context of suits against corporations.143 That the ATCA has potential as a means of deterring corporate
misfeasors is evidenced in the way it is perceived as a serious threat by
some corporate advocates.144 Another view of this potential is a positive
one—it can be used to redress violations that as of yet have not been seriously addressed by the international community. It may not be a “weapon of mass destruction” but it certainly is a means to pierce the immunity of state-like corporations who wield their strength to destroy the environment and are never forced to pay the consequences for their actions.
That the state actively encourages such behavior is not an adequate defense, especially when the representatives of the state and the corporate
leaders are often of one mind.
Elise Catera*
Jake Kreilkamp, Suing Saddam—And Others—In U.S. Courts: The Controversy Over the
Alien Tort Claims Act, available at http://writ.news.findlaw.com/student/20
030709_kreilkamp.html (last visited Feb. 11, 2008). However, it may be expected that
relief against corporations, particularly U.S. corporations, would be more forthcoming
than from individuals who act in disregard of the law in general.
143. Though the terms of the settlement with Unocal were not disclosed, it was believed to range in the millions of dollars. Baue, supra note 15.
144. See, e.g., Londis, supra note 99, at 143−44 (citing Gary Clyde Hufbauer & Nicholas K. Mitrokostas, AWAKENING MONSTER: THE ALIEN TORT STATUTE OF 1789 (2003)).
“The first chapter, ‘Nightmare Scenario,’ predicts the rapid divestment of [transnational
corporations] in developing countries ‘with less than perfect observance of individual and
labor rights and shortcomings in the realm of political and environmental norms,’ should
these ATCA suits be allowed to proliferate.” Id. at 143.
* B.A., Sierra Nevada College; M.A., Teachers College, Columbia University; J.D.,
Brooklyn Law School (expected 2008); Executive Notes and Comments Editor of the
Brooklyn Journal of International Law (2007–2008). I would like to thank Brooklyn Law
School Faculty for their helpful suggestions. I also greatly appreciated the help of the
2007–2008 Executive Board of the Brooklyn International Journal of Law in preparing
this Note for publication. Any errors or omissions are my own.
A NEW CALL FOR REFORM: SEX ABUSE
AND THE FOREIGN SOVEREIGN
IMMUNITIES ACT
INTRODUCTION
I
n 2002, the Catholic Church became embroiled in what has been
called “a crisis without precedent in our times.”1 That year, more
than 3,300 allegations of sexual abuse by clergy members surfaced in the
United States.2 At the time, that figure brought the total number of alleged victims since 1950 to 11,750 and contributed to an estimated $840
million dollars spent by the Catholic Church in legal settlements and
“other costs related to sex abuse.”3 For the most part, however, the Holy
See has been insulated from the wave of litigation resulting from these
astounding statistics as it has rarely been named a co-defendant in U.S.
lawsuits.4
On June 7, 2006, the U.S. District Court of Oregon (“Oregon District
Court”) rendered an unusual decision in the matter of Doe v. Holy See
when it denied the Holy See’s motion to dismiss for lack of subject matter jurisdiction.5 The Holy See was named a co-defendant in the complaint, which arose from the alleged sex abuse committed by Father Andrew Ronan (“Ronan”) against the plaintiff, a minor, during the 1960s.6
The Oregon District Court found that the Holy See’s conduct fell within
the tortious activity exception (“tort exception”) of the Foreign Sovereign Immunities Act of 1976 (“FSIA”)7 and that the Holy See was therefore subject to jurisdiction despite its presumed immunity.8
1. UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, CHARTER FOR THE
PROTECTION OF CHILDREN AND YOUNG PEOPLE (2005), http://www.usccb.org/ocyp/
charter.shtml [hereinafter CHARTER].
2. Alan Cooperman, In 2004, 1000 Alleged Abuse By Priests, WASH. POST, Feb. 19,
2005, at A02, available at http://www.washingtonpost.com/wp-dyn/articles/A363242005Feb19.html (correction to the original article).
3. Id. The costs continue to increase by staggering amounts. In 2007, the Los Angeles Archdiocese settled with sex abuse victims for a record $660 million. See Laurie
Goodstein, Payout Is Bittersweet for Victims of Abuse, N.Y. TIMES, July 17, 2007, at
A15, available at http://www.nytimes.com/2007/07/17/us/17abuse.html.
4. The instances in which the Holy See has been named a co-defendant are discussed
infra, Part II.
5. Doe v. Holy See, 434 F. Supp. 2d 925, 931 (D. Or. 2006).
6. Id. at 931.
7. Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611 (1976). The tort
exception is found at 28 U.S.C. § 1605(a)(5).
8. Doe v. Holy See, 434 F. Supp. 2d at 931.
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The FSIA serves as the exclusive vehicle by which to obtain jurisdiction over a foreign sovereign.9 It immunizes a foreign sovereign from
jurisdiction in U.S. courts except as provided in certain sections of the
act.10 The Holy See was first recognized as a foreign sovereign by the
United States in 1984.11 Originally filed in 2002 and amended two years
later, plaintiff John V. Doe’s complaint asserted three causes of action
against the Holy See, including negligence,12 respondeat superior,13 and
fraud.14
The Oregon District Court concluded that the plaintiff’s allegations
were “sufficient to establish the applicability of the tortious activity exception to the FSIA such that plaintiff survives the Holy See’s facial attack in this motion to dismiss.”15 Under Oregon’s “expansive” respondeat superior doctrine, it seemed only sensible that the Holy See should
be subject to liability for the alleged acts of Ronan, its agent.16 As for
negligence, however, the Oregon District Court was obliged to address
the fact that some of the Holy See’s alleged conduct did not occur in the
United States,17 a fact that has typically led courts to determine that the
FSIA’s tort exception does not apply.18 The language of the tort excep-
9.
10.
11.
12.
Id. at 933 (citing Republic of Austria v. Altmann, 541 U.S. 677, 699 (2004)).
28 U.S.C. § 1604.
O’Bryan v. Holy See (O’Bryan I), 490 F. Supp. 2d 826, 829 (W.D. Ky. 2005).
According to the Restatement (Second) of Torts:
Negligent conduct may be either: (a) an act which the actor as a reasonable man
should recognize as involving an unreasonable risk of causing an invasion of an
interest of another, or (b) a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do.
Restatement (Second) of Torts § 284 (1979).
13. “The doctrine holding an employer or principal liable for the employee’s or
agent’s wrongful acts committed within the scope of the employment or agency.”
BLACK’S LAW DICTIONARY 1338 (8th ed. 2004).
14. Doe v. Holy See, 434 F. Supp. 2d at 931. According to the Restatement (Second)
of Torts:
A misrepresentation is fraudulent if the maker (a) knows or believes that the
matter is not as he represents it to be, (b) does not have the confidence in the
accuracy of his representation that he states or implies, or (c) knows that he
does not have the basis for his representation that he states or implies.
Restatement (Second) of Torts § 526 (1979).
15. Doe v. Holy See, 434 F. Supp. 2d 925, 957 (D. Or. 2006).
16. Id. at 949.
17. Id. at 951–53.
18. Joseph W. Dellapenna, Refining the Foreign Sovereign Immunities Act, 9
WILLAMETTE J. INT’L L. & DISP. RESOL. 57, 136–37 (2001) (noting that “most courts that
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CALL FOR REFORM: SEX ABUSE & THE FSIA
657
tion expressly requires the injury to occur in the United States, but is silent as to the tortious act or omission.19 The confusion with regard to the
site of the tort has not gone unnoticed by judges or scholars.20 In dealing
with this issue, the Oregon District Court decided that since the plaintiff
alleged that at least one entire tort occurred in the United States, the negligence complaint was sufficient to withstand dismissal.21
This Note will argue that Doe v. Holy See, although decided correctly,
exemplifies the unnecessary confusion surrounding the FSIA’s tort exception. Such confusion must be addressed in view of the wave of clergy
sex abuse litigation in the United States that is now more likely to name
the Holy See as a defendant. Part I of this Note will discuss the language
of the tort exception and how it is typically interpreted in FSIA jurisprudence in terms of both legislative history and statutory construction. Part
II will discuss similar clergy sex abuse cases in which the Holy See was
named a defendant and the unsuccessful endeavors of plaintiffs to pierce
its sovereign veil. Part III will discuss in further detail the facts, reasoning, and unusual holding of the Oregon District Court in Doe v. Holy See.
Part IV will argue that the plaintiff-friendly result of Doe v. Holy See,
though atypical, is proper given the language of the tort exception and
the FSIA’s stated objective to “serve the interests of justice.”22 Finally,
Part V will conclude that in the absence of much needed amendment to
the FSIA’s tort exception, courts should look more favorably upon plaintiffs that sue the Holy See for its role in the clergy sex scandal epidemic,
provided their complaints sufficiently allege tortious conduct occurring
either at home or abroad with direct effects in the United States.
I. VARIOUS INTERPRETATIONS OF THE TORT EXCEPTION
As a general proposition, sovereign immunity of a foreign state is a
rule, not an exception.23 The FSIA states, “Subject to existing interna-
have addressed the issue have held that both the tortious act or omission also must occur
in the United States”).
19. See 28 U.S.C. § 1605(a)(5) (1976).
20. See, e.g., Dellapenna, supra note 18, at 137.
21. Doe v. Holy See, 434 F. Supp. 2d 925, 953 (D. Or. 2006).
22. 28 U.S.C. § 1602 (1976).
23. 28 U.S.C. § 1330(a) provides:
The district courts shall have original jurisdiction without regard to amount in
controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to
which the foreign state is not entitled to immunity either under sections 16051607 of this title or under any applicable international agreement.
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tional agreements to which the United States is a party . . . a foreign state
shall be immune from the jurisdiction of the courts of the United States
. . . except as provided in sections 1605–07 of this chapter.”24 One reason
for the FSIA’s enactment, as discussed by Congress, was to codify the
“restrictive principle” of sovereign immunity, under which a foreign state
is subject to jurisdiction in U.S. courts only for its commercial or private
acts.25 Further, Congress intended this principle to apply in litigation,
leaving the question of sovereign immunity in the hands of the judiciary
in order to alleviate pressure on the executive branch with potentially
adverse consequences for foreign relations.26 This goal is highlighted in
the FSIA’s declaration of purpose, which states in part: “The Congress
finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve
the interests of justice and would protect the rights of both foreign states
and litigants in United States courts.”27
While these intentions may be clear cut, the FSIA’s substantive provisions are not always so transparent.28 The tort exception, upon which
Doe v. Holy See was decided,29 is one such provision. FSIA section
1605(a)(5) provides:
A foreign state shall not be immune from the jurisdiction of courts of
the United States or of the States in any case . . . in which money damages are sought against a foreign state for personal injury or death, or
damage to or loss of property, occurring in the United States and
caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of
his office or employment.30
28 U.S.C. § 1330(a) (1976). The same holds true for the Holy See. As the Oregon District Court noted, “The Holy See, a foreign sovereign, is presumptively
immune from suit under the FSIA unless an exception applies.” Doe v. Holy
See, 434 F. Supp. 2d at 931.
24. 28 U.S.C. § 1604 (1976).
25. H.R. Rep. No. 94-1487, at 7 (1976).
26. Id. (discussing how, prior to enactment of the FSIA, foreign states would “often
request the Department of State to make a formal suggestion of immunity to the court”
and possibly “attempt to bring diplomatic influences to bear upon the State Department’s
determination”).
27. 28 U.S.C. § 1602.
28. Working Group of the American Bar Association, Report: Reforming the Sovereign Immunities Act, 40 COLUM. J. TRANSNAT’L L. 489, 492 (2002) [hereinafter Working
Group] (stating that “the structure and language of the [FSIA] have challenged courts”).
29. Doe v. Holy See, 434 F. Supp. 2d 925, 931 (D. Or. 2006).
30. 28 U.S.C. § 1605(a)(5) (1976). The tort exception is subject to two limitations.
The provision does not apply to:
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Among the provision’s noteworthy features is the explicit language
calling for the injury to occur in the United States while providing no
geographic requirement as to the tortious act or omission. As the Oregon
District Court in Doe v. Holy See explained, this is because of the
“placement of the clause ‘in the United States’ after ‘injury’ but before
‘caused by act or omission.’”31 This inconsistency has been dealt with
numerous times by the courts, which generally acknowledge that, on its
face, the tort exception would allow jurisdiction regardless of where the
act or omission took place.32 Legislative intent, however, has usually
swayed courts in favor of the theory that the entire tort, including the act
or omission, must occur in the United States.33 The House Report appurtenant to the FSIA explicitly states as much.34
Some courts have interpreted the tort exception to require the tortious
conduct to occur within the United States as a matter of statutory construction based on the language of another FSIA exception to immunity—the commercial activity exception. Found in section 1605(a)(2),
that provision states:
A foreign state shall not be immune from the jurisdiction of courts of
the United States or of the States in any case . . . in which the action is
based upon a commercial activity carried on in the United States by the
(A) any claim based upon the exercise or performance or the failure to exercise
or perform a discretionary function regardless of whether the discretion be
abused, or (B) any claim arising out of malicious prosecution, abuse of process,
libel, slander, misrepresentation, deceit, or interference with contract rights.
28 U.S.C. § 1605(a)(5)(A)-(B). The underlying purpose of 28 U.S.C. § 1605(a)(5)(A) is
“to allow government executives to make policy decisions in an atmosphere free of concern over possible litigation.” Olsen v. Gov’t of Mexico, 729 F.2d 641, 647 (9th Cir.
1984). See also Working Group, supra note 28, at 569 (observing that “the more the conduct involves the exercise of judgment and the more it appears to be grounded in social,
economic, or political policy, the more likely courts will find it to be a discretionary function”).
31. Doe v. Holy See, 434 F. Supp. 2d at 951.
32. See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 379 (7th
Cir. 1985) (noting that “[a]t first blush, it appears that there is jurisdiction [under the tort
exception] if the injury . . . occurs in this country, regardless of whether the tortious act
causing the injury occurred within this nation’s borders”); English v. Thorne, 676 F.
Supp. 761, 762 (S.D. Miss. 1987) (observing that “the provision is silent as to the situs of
the alleged tortious conduct”).
33. See, e.g., Frolova, 761 F.2d at 379 (stating that “there is explicit legislative history indicating that Congress intended that the tortious act or omission, as well as the
injury, occur in the United States”).
34. H.R. Rep. 94-1487, at 21 (1976) (stating that “the tortious act or omission must
occur within the jurisdiction of the United States”).
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foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon
an act outside the territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that act causes a
direct effect in the United States.35
The construction of this particular provision influenced the Supreme
Court’s interpretation of the tort exception in Argentine Republic v. Amerada Hess Shipping Corporation.36
In Amerada Hess, two Liberian corporations sued the Argentine Republic in tort for damages sustained by a neutral oil tanker attacked at
sea.37 The respondents argued that, of the FSIA’s various exceptions to
immunity,38 the tort exception was “most in point.”39 The Court rejected
this argument, stating, “[The tort exception] is limited by its terms . . . to
those cases in which damage or loss of property occurs in the United
States.”40 In its discussion, the Supreme Court gave credence to Congress’s “primary purpose” behind the provision, which was “to eliminate
a foreign state’s immunity for traffic accidents and other torts committed
in the United States, for which liability is imposed under domestic tort
law.”41
Further, the Supreme Court opined that the tort exception “covers only
torts occurring within the United States.”42 Here the Court employed a
comparison of the commercial activity exception with the tort exception.43 It observed that, unlike the commercial activity exception, the tort
exception “makes no mention of ‘territory outside the United States’ or
of ‘direct effects’ in the United States.”44 Thus the use of “explicit language” in one provision but not the other indicates that Congress intended noncommercial torts to be actionable under the FSIA only if the
35. 28 U.S.C. § 1605(a)(2).
36. 488 U.S. 428 (1989).
37. Id. at 431–32. At the time of the attack, Great Britain and the Argentine Republic
were at war over the Falkland Islands and the Islas Malvinas, off the Argentine coast. Id.
at 431. Both countries were informed by the United States of the presence of oil tankers
and “to avoid any attacks on neutral shipping.” Id.
38. See 28 U.S.C. § 1605(a)–(d).
39. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989).
40. Id.
41. Id. at 439-40. See also H.R. Rep. No. 94-1487, at 21 (1976) (stating that “the
purpose of section 1605(a)(5) is to permit the victim of a traffic accident or other noncommercial tort to maintain an action against the foreign state to the extent otherwise
provided by law”).
42. Amerada Hess, 488 U.S. at 441.
43. Id.
44. Id. (citing 28 U.S.C. § 1605(a)(2)).
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661
tort occurred in the United States.45 As Justice Blackmun noted, however, the question of whether one of the FSIA’s exceptions to immunity
applied to the case had not been addressed by the Court of Appeals or
fully briefed by the parties.46 He therefore felt it was inappropriate to
address the issue at first instance.47
The Seventh Circuit employed reasoning similar to the Supreme
Court’s four years earlier in the case of Frolova v. Union of Soviet Socialist Republics when it affirmed the district court’s dismissal of the
plaintiff’s action.48 The absence of language similar to that of the commercial activity exception lent support to the Seventh Circuit’s conclusion that Congress intended both the injury and act or omission to occur
in the United States.49 In Persinger v. Islamic Republic of Iran, a majority of the District of Columbia Circuit agreed that where Congress uses
explicit language in one provision of a statute but not in the other, “a
strong inference arises that the two provisions do not mean the same
thing.”50
Other courts and scholars, however, have recognized the problem with
the foregoing deference to legislative intent, particularly in cases where
the site of the tortious conduct is not entirely clear.51 The Ninth Circuit
45. Id.
46. Id. at 443. Because the respondent corporations originally attempted to invoke
jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350, hence the FSIA was not the
focus of the district court proceedings, or of the Second Circuit Court of Appeals, which
reversed the district court’s dismissal of the complaints. Amerada Hess, 488 U.S. at 432–
33.
47. Id. at 443 (Blackmun, J., concurring in part).
48. Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 372 (7th Cir. 1985).
The plaintiff in Frolova, an American woman, sought an injunction and damages against
the Soviet Union for its refusal to allow her husband, a Muscovite, to return to the United
States with her after her Soviet visa expired. Id. at 371. The allegations included mental
anguish, physical distress, and loss of consortium. Id.
49. Id. at 379–80 (stating that “[the commercial activity exception] demonstrates that
when Congress intended to provide jurisdiction for acts outside this country having an
effect within our borders, it said so explicitly”).
50. Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (D.C. Cir. 1984). The
plaintiff, a United States Marine captured by Iranian militants in Tehran and held hostage
for fifteen months, sought damages for violations of international law, constitutional law,
and common law. Id. at 837. His parents, co-plaintiffs in the action, sought damages for
“mental and emotional injuries suffered by virtue of their son’s confinement.” Id. at 844
(Edwards, J., dissenting in part and concurring in part). The majority held that, despite its
plain language, the FSIA’s tort exception requires both the tort and injury to occur in the
United States. Id. at 842. Therefore the court found it did not have jurisdiction over the
claims. Id. at 843.
51. For further discussion of this issue, and the many other uncertainties found in the
FSIA, see Dellapenna, supra note 18.
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was confronted with just such a case in Olsen v. Government of Mexico.52 In Olsen, two children brought a wrongful death action based in
negligence for the death of their parents, both prisoners, who died in a
plane crash less than one mile inside the United States.53 The crash victims were en route from Monterrey to Tijuana, where they were to be
transferred to American authorities for incarceration in the United
States.54 Poor weather conditions required maneuvering the plane within
the airspaces of Mexico and the United States, as well as communication
between air controllers in Tijuana and San Diego, before the aircraft
struck a telephone pole and crashed.55 The appellants alleged that “Mexico negligently maintained, directed and piloted the aircraft.”56 Mexico
challenged the applicability of the tort exception, contending it “must be
construed to require all of the tortious conduct to occur in the United
States before a foreign state will be denied immunity.”57 Thus Mexico
asserted its immunity on the grounds that “some allegedly tortious acts or
omissions took place outside the United States.”58
The Ninth Circuit rejected Mexico’s argument, stating that such an interpretation “contradicts the purpose of the FSIA, which is to ‘serve the
interests of justice and . . . protect the rights of both foreign states and
litigants in United States courts.’”59 The court reasoned that to adopt
such a strict situs requirement “would encourage foreign states to allege
that some tortious conduct occurred outside the United States.”60 Instead
the court held that jurisdiction is proper under the tort exception where a
plaintiff alleges that “at least one entire tort” occurred in the United
States.61
The Ninth Circuit’s approach is more closely aligned with recent
scholarship concerning the language of the FSIA. For example, in a 2002
report, the Working Group of the International Litigation Committee of
the Section of International Law and Practice of the American Bar Association (“Working Group”) recommended various amendments to the
FSIA, including the tort exception.62 Given its uncertainties, the Working
52. Olsen v. Gov’t of Mexico, 729 F.2d 641(9th Cir. 1984).
53. Id. at 643–44.
54. Id. at 643.
55. Id. at 643–44.
56. Id. at 647.
57. Olsen, 729 F.2d at 646.
58. Id.
59. Id. (quoting 28 U.S.C. § 1602).
60. Id.
61. Id.
62. Working Group, supra note 28, at 564–73. The Working Group discussed Olsen
in support of this proposition. Id. at 567.
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Group proposed that the tort exception be amended to require a “substantial portion” of the tortious activity to occur in the United States.63 As the
Working Group noted, however, other “influential” authority, such as the
American Law Institute’s Restatement (Third) of Foreign Relations Law,
interprets the tort exception to apply “regardless of where the act or
omission causing the injury took place.”64
II. A FORMIDABLE ADVERSARY
Doe’s complaint against the Holy See was certainly not the first of its
kind to reach a United States District Court.65 The Holy See, however,
has most often prevailed against the piercing of its sovereign status.66
63. Id. at 573.
64. Id. at 567 (quoting Restatement (Third) of Foreign Relations Law of the United
States § 454 cmt. e (1987)). With regard to tort claims, the Restatement reads like the
FSIA. It states:
Under international law, a state is not immune from the jurisdiction of the
courts of another state with respect to claims in tort for injury to persons or
property in the state of the forum.
Courts in the United States may exercise jurisdiction with respect to claims in
tort against foreign states for injury to persons or property in the United States,
other than claims based upon an exercise of a discretionary function or claims
for malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.
Restatement (Third) Foreign Relations Law § 454. With regard to place of injury, the
commentary provides:
Under Section 1605(a)(5) of the Foreign Sovereign Immunities Act, courts in
the United States have jurisdiction over tort claims against a foreign state only
if the injury took place in the United States, regardless of where the act or
omission causing the injury took place. Indirect effects in the United States,
such as loss of consortium resulting from injury to a claimant’s spouse inflicted
by the foreign state outside the United States, are not within the jurisdiction of
courts in the United States under Subsection (2).
Id. cmt. e.
65. See, e.g., English v. Thorne, 676 F. Supp. 761, 762 (S.D. Miss. 1987)
(“[P]laintiffs seek to impose liability upon the various other defendants, including the
Vatican, based upon allegations that they negligently employed, retained and reassigned
[Catholic priest] as pastor of the Holy Ghost Parish of the Catholic Diocese of Jackson
. . . .”); O’Bryan I, 490 F. Supp. 2d 826, 828 (W.D. Ky. 2005) (noting that plaintiffs’
claims against the Holy See, including respondeat superior, infliction of emotional distress, and negligence, “arise from allegations of sexual abuse by local Catholic priests
many years ago”).
66. Doe v. Holy See, 434 F. Supp. 2d 925, 933 (D. Or. 2006) (noting that in this case
“the sovereign status of the Holy See is not in dispute”). See also John L. Allen, Jr., U.S.
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The results of prior clergy sex abuse cases—both state and federal—are
indicative of the difficulties involved in suing the Holy See. In Doe v.
O’Connell, for example, the Missouri Court of Appeals for the Eastern
District affirmed the dismissal of the plaintiff’s claims against all defendants on statute of limitations grounds,67 while the claims against codefendant Holy See had already been dismissed for failure to prosecute.68
In the New York case of Doe v. Holy See (State of Vatican City), the
plaintiff’s claims were similarly dismissed on statute of limitations
grounds, and also for jurisdictional reasons, “even absent a motion from
[the Holy See].”69 The O’Connell and State of Vatican City opinions
were not specific as to why the Holy See should escape liability. The
1987 case of English v. Thorne, however, clearly turned on the FSIA
with regard to both service of process and the tort exception.70
In English, the Holy See based its motion to dismiss upon insufficiency
of process, lack of personal jurisdiction and lack of subject matter jurisdiction.71 The plaintiffs acknowledged that service of process was defective and requested leave to correct it.72 The court could have granted such
Court Oks Legal Action Against The Holy See, NAT’L CATHOLIC REPORTER, June 16,
2006, http://nationalcatholicreporter.org/word/word061606.htm#five (stating that “[t]o
date, the wall of sovereign immunity in American courts has held up where the Vatican is
concerned”).
67. Doe v. O’Connell, 146 S.W.3d 1, 2 (E.D. Mo. 2004) (per curiam).
68. Id. at 2 n.1. The complaint in O’Connell arose from the alleged sex abuse of the
plaintiff by Father O’Connell, which began in the 1960s when plaintiff, then a minor, was
a seminary student. Id. at 3. The opinion is silent as to how or why the plaintiff failed to
prosecute the Holy See.
69. Doe v. Holy See (State of Vatican City), 793 N.Y.S.2d 565, 567 n.1 (N.Y. App.
Div. 2005), leave to appeal denied, 845 N.E.2d 1274 (N.Y. 2006). The four consolidated
matters in this case asserted various causes of action stemming from clergy sex abuse
occurring as far back as fifty years. Id. at 793–94. The opinion is silent as to what “jurisdictional grounds” the New York Supreme Court invoked when it ordered dismissal of
the complaint against co-defendant Holy See, and on appeal the plaintiffs apparently did
not assert a substantive argument regarding that dismissal. Id. at 794 n.1. For purposes of
this Note, the terms “Holy See,” “Vatican,” or “Vatican City” may be used interchangeably, as seen in the name of this case. For a detailed analysis of those entities and their
international status, see Matthew N. Bathon, The Atypical International Status of the
Holy See, 34 VAND. J. TRANSNAT’L L. 597 (2001).
70. English v. Thorne, 676 F. Supp. 761 (S.D. Miss. 1987). The plaintiffs alleged
tortious conduct of a Catholic priest during his service at the Holy Ghost Parish in Jackson, Mississippi. Id. at 762. The complaint against co-defendant Holy See alleged negligent employment, retention, and reassignment of the priest to the parish. Id.
71. Id. at 762.
72. Id. The plaintiffs attempted to effect service under Mississippi statutes, rather than
under the FSIA as required. Id. at 762 n.1. See also 28 U.S.C. § 1608 (1976).
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a request,73 but instead dismissed the complaint in its entirety for lack of
subject matter jurisdiction.74 The court found two major problems with
the complaint, both arising from the FSIA’s tort exception.75 First, the
English court found that the complaint challenged “the policies and/or
procedures utilized by the Vatican in instructing or ordaining its priests,
matters which are undeniably of a policy-making nature and clearly discretionary functions.”76 Thus the court held that the complaint was barred
by the FSIA’s discretionary function limitation.77 Second, the English
court determined that “the alleged acts or omissions by the Vatican
would not have occurred within the jurisdiction of the United States, but
rather within the confines of the Vatican.”78 In analyzing the FSIA’s tort
exception, the court favored the legislative history of the provision and,
like numerous courts before it, concluded that in addition to the injury,
“the conduct complained of must also have occurred in the United
States.”79
The Kentucky case of O’Bryan v. Holy See makes for an interesting
look at the foregoing issues given that thus far two opinions have been
published in the case—one prior to the Oregon District Court’s decision
in Doe v. Holy See,80 and one after.81 In O’Bryan I, the first class action
suit in which the Holy See was named as the sole defendant for clergy
sex abuse,82 the plaintiffs failed to effect proper service upon the Holy
See pursuant to the stringent requirements of the FSIA.83 Though the
court noted that “the Holy See’s sovereign status does not guarantee its
immunity from suit,”84 it also emphasized the importance of “strict compliance” with the FSIA’s provisions regarding service of process.85 The
73. English, 676 F. Supp. at 762.
74. Id. The cause of action was dismissed as to all defendants because the plaintiffs
based subject matter jurisdiction solely on 28 U.S.C. § 1330, a provision under which the
court found jurisdiction did not exist. English, 676 F. Supp. at 764.
75. Id. at 763–64.
76. Id. at 764.
77. Id. at 763-64. See also 28 U.S.C. § 1605(a)(5)(A) (1976).
78. English, 676 F. Supp. at 764.
79. Id.
80. See O’Bryan I, 490 F. Supp. 2d 826 (W.D. Ky. 2005).
81. O’Bryan v. Holy See (O’Bryan II), 471 F. Supp. 2d 784 (W.D. Ky. 2007).
82. Peter Smith & Andrew Wolfson, Louisville Attorney Sues the Vatican, COURIERJ., June 6, 2004, available at http://www.courtroomlaw.com/news_vatican.shtml.
83. O’Bryan I, 490 F. Supp. 2d at 832.
84. Id. at 830 n.1.
85. Id. at 831. With regard to service of process, the FSIA provides in part:
Service in the courts of the United States and of the States shall be made upon a
foreign state or political subdivision of a foreign state: (1) by delivery of a copy
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plaintiffs were granted sixty days to perfect service,86 which is apparently
a difficult task given that they made several prior (and unsuccessful) attempts to do so,87 and the Holy See was hardly an amenable defendant.88
In O’Bryan II, much like in Doe v. Holy See,89 the Holy See challenged
the court’s subject matter jurisdiction under the FSIA.90 Thus the court
was compelled to undertake a similar analysis of the FSIA as applied to
employees of the Holy See and the Holy See itself.91 With regard to the
duties allegedly breached by the Holy See’s agents, the court concluded
these “squarely fall under the tortious activity exception of FSIA” given
of the summons and complaint in accordance with any special arrangement for
service between the plaintiff and the foreign state or political subdivision; or (2)
if no special arrangement exists, by delivery of a copy of the summons and
complaint in accordance with an applicable international convention on service
of judicial documents; or (3) if service cannot be made under paragraphs (1) or
(2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state,
by any form of mail requiring a signed receipt, to be addressed and dispatched
by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or (4) if service cannot be made within 30 days under
paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the
foreign state, by any form of mail requiring a signed receipt, to be addressed
and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular
Services—and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a
certified copy of the diplomatic note indicating when the papers were transmitted.
28 U.S.C. § 1608(a) (1976).
86. O’Bryan I, 490 F. Supp. 2d at 832.
87. Id. at 832. Ultimately the court found that plaintiffs failed to properly comply
with 28 U.S.C. § 1608(a)(3), supra note 85, because they addressed the summons and
complaint to the Head of the Secretariat of State, rather than the Foreign Minister.
O’Bryan I, 490 F. Supp. 2d at 832.
88. Id. at 831 (noting that “compliance is admittedly difficult and is made more so by
the absence of any accommodation from the Holy See”).
89. See Doe v. Holy See, 434 F. Supp. 2d 925, 931 (D. Or. 2006).
90. O’Bryan II, 471 F. Supp. 2d 784, 786 (W.D. Ky. 2007).
91. Plaintiffs alleged that certain torts were committed “by and through [the Holy
See’s] agents, servants and employees.” Id. at 786. These included breaches of the duty to
provide safe care to minors, the duty to warn parents and the duty “to report known or
suspected perpetrators of childhood sex abuse to the appropriate authorities.” Id. Plaintiffs also alleged torts of deceit and misrepresentation against the Holy See itself, as an
“incorporated association and head of an international religious organization.” Id. at 786–
87.
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that both the acts and the injuries occurred in the United States.92 As for
the torts alleged directly against the Holy See, however, the court was
unwilling to assert jurisdiction. To hold otherwise, it stated, “would constitute a dramatic expansion of FSIA” given that the Holy See’s alleged
deceit and misrepresentation occurred outside the United States.93 Moreover, not all of the claims that fell within the tort exception survived due
to other FSIA intricacies. For example, the court held that the FSIA’s
discretionary function limitation94 barred the claim that the Holy See
(through its agents) failed to provide safe care to children.95
Ultimately, several of the O’Bryan II claims withstood the Holy See’s
motion to dismiss for lack of subject matter jurisdiction. These included
“negligent failure to report, negligent failure to warn . . . outrage and
emotional distress, violations of the customary law of human rights, and
claims under the doctrine of respondeat superior.”96 These victories,
however, came with a limitation. The court remained willing to reconsider the question of whether the individual actors accused of tortious
conduct (the “United States-based bishops, archbishops and other clergy
of the Roman Catholic Church”) are actually “employees” or “officials”
of the Holy See pursuant to the FSIA.97 While the plaintiffs did make a
prima facie showing that the Holy See exercised “substantial control”
over these actors, the FSIA does not define the terms “employee” or “official.”98 Thus, at the writing of this Note, the Holy See remains free to
present evidence that these actors were not acting within the scope of
their employment, and this would “require the court to revisit [its] conclusions and refine the precise acts or omissions subject to jurisdiction
under FSIA.”99 In other words, the court has left the Holy See with yet
another mechanism for challenging jurisdiction.
III. DOE V. HOLY SEE—AN ATYPICAL RESULT
The matter of Doe v. Holy See arose from the alleged sexual abuse the
plaintiff suffered at the hands of Father Andrew Ronan, a Catholic priest
assigned to St. Albert’s Church in Portland around 1965, when the plain-
92. Id. at 790.
93. Id.
94. 28 U.S.C. § 1605(a)(5)(A) (1976).
95. O’Bryan II, 471 F. Supp. 2d at 793.
96. Id. at 795.
97. Id.
98. Id. at 791 (noting that whether one is an employee of the Holy See is a question of
Kentucky law).
99. Id. at 792.
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tiff was fifteen or sixteen years old.100 Among the plaintiff’s numerous
assertions was that, “[d]espite knowing of Ronan’s dangerous propensities to abuse children, the Holy See placed Ronan in defendant Archdiocese in Portland, Oregon.”101 Further, the complaint alleged that when
the “repeated occasions” of sexual abuse occurred, “plaintiff was under
the authority and influence of Ronan as a Roman Catholic priest which
authority was granted to him by Defendant Holy See, Archdiocese and
Order.”102
The Holy See’s motion to dismiss presented a facial attack against the
complaint.103 That is, it did not dispute the plaintiff’s factual allegations,
but rather asserted that the complaint on its face was insufficient to invoke federal jurisdiction.104 In such a situation, “the court must accept as
true the factual allegations in plaintiff’s complaint.”105
The plaintiff did not dispute the sovereign status of the Holy See, but
argued that subject matter jurisdiction was nonetheless proper under both
the FSIA’s commercial activity exception and the tort exception.106 The
commercial activity theory was based on the fact that the Holy See oversees and participates in “providing religious and pastoral guidance, education and counseling services to Roman Catholics world-wide in exchange for all or a portion of the revenues derived from its members for
these services.”107 Ronan, acting as the Holy See’s agent, helped obtain
such financial support during the course of his agency.108 The Oregon
District Court commented that the commercial activity exception, as applied to the facts of the case, was a “novel and close” issue.109 Ulti-
100. Doe v. Holy See, 434 F. Supp. 2d 925, 931 (D. Or. 2006).
101. Id. at 932 (citing Complaint at ¶ 13, Doe v. Holy See, 434 F. Supp. 2d 925 (D. Or.
2006) (No. CV 02-430-MO). See also Complaint at ¶¶ 11–12, Doe v. Holy See, 434 F.
Supp. 2d 925 (D. Or. 2006) (No. CV 02-430-MO) (discussing Ronan’s prior admissions,
documented in the records of the Roman Catholic Church, to molesting youth in Ireland
and Chicago prior to his placement in Portland).
102. Doe v. Holy See, 434 F. Supp. 2d at 932 (citing Complaint at ¶¶ 15, 36, Doe v.
Holy See, 434 F. Supp. 2d 925 (D. Or. 2006) (No. CV 02-430-MO)). The Archdiocese of
Portland (“Archdiocese”) and the Order of Friar Servants (“Order”) were named as codefendants for their role in the alleged sexual abuse by Ronan. See id. at 931.
103. Id. at 932–33.
104. Id. at 932.
105. Id.
106. Id. at 933.
107. Doe v. Holy See, 434 F. Supp. 2d at 940 (citing Complaint at ¶ 3, Doe v. Holy
See, 434 F. Supp. 2d 925 (D. Or. 2006) (No. CV 02-430-MO)) (emphasis omitted).
108. Id.
109. Id. at 942.
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mately, however, the plaintiff could not persuade the Oregon District
Court that subject matter jurisdiction existed under that exception.110
The plaintiff’s argument that the Holy See was subject to jurisdiction
under the tort exception was more successful, at least with regard to the
claims of respondeat superior and negligence liability.111 As to the former claim, the Holy See argued that the plaintiff failed to allege, per the
language of the tort exception, that Ronan was “an employee acting
within the scope of his employment.”112 The Oregon District Court disagreed.113 First, the Oregon District Court found that the plaintiff sufficiently alleged Ronan was an employee of the Holy See given that the
Holy See had the right to control Ronan, “furnished Ronan with facilities
. . . to perform his duties,” and was responsible for disciplining its
priests.114 Further, the Oregon District Court found sufficient allegations
that Ronan acted within the scope of his employment.115 Specifically, the
allegations that Ronan “sought and gained” the plaintiff’s trust, procured
his participation in “counseling and other activities,” and did so out of
motivation to serve the Holy See, were all relevant to a determination
that Ronan’s conduct preceding the sexual abuse was within the scope of
his employment.116 Based on the foregoing, the Oregon District Court
found “sufficient grounds upon which to hold [the Holy See] liable under
a theory of respondeat superior.”117
In moving to dismiss the negligence claim, the Holy See argued that
the FSIA’s discretionary function limitation118 shielded it from jurisdiction and that the plaintiff failed to allege that the entire tort occurred in
the United States.119 Given the leading tort exception jurisprudence, and
110. Id. In its analysis, the Oregon District Court observed that “[t]he true essence of
plaintiff’s complaint is an allegation of sexual abuse committed by a parish priest. The
gravamen of the complaint does not appear to be commercial in nature.” Id. at 940.
111. Id. at 947–53. The plaintiff’s cause of action for fraud was based on the notion
that the Holy See misrepresented Ronan as a “fit and competent agent of the Holy See
and a minister of Christ.” Id. at 932, 945 (citing Pl.’s Compl. ¶ 35). The plaintiff, however, conceded that the fraud claim was likely barred by 28 U.S.C. § 1605(a)(5)(B), the
“misrepresentation exception.” Id. at 947. See also 28 U.S.C. § 1605(a)(5)(B) (1976).
112. Doe v. Holy See, 434 F. Supp. 2d at 948.
113. Id. at 950.
114. Id. at 949. Under Oregon law, these factors are among those considered by courts
to establish employee status. Id.
115. Id. at 950.
116. Id. Additionally, these were the type of acts that Ronan was hired to perform,
another relevant factor under Oregon’s “expansive theory” of scope of employment. Id. at
949–50.
117. Doe v. Holy See, 434 F. Supp. 2d at 950.
118. 28 U.S.C. § 1605(a)(5)(A) (1976).
119. Doe v. Holy See, 434 F. Supp. 2d at 950.
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the outcome of English v. Thorne, these were not novel arguments.120
The Oregon District Court’s decision, however, was not typical given the
defendant-friendly stance most courts have taken on the issue.121
The Holy See failed to persuade the Oregon District Court that its alleged conduct fell within the FSIA’s discretionary function limitation.122
As the Oregon District Court observed, Doe’s complaint alleged more
than just “negligent hiring or supervision,” allegations which would have
been sufficient to invoke immunity under the discretionary function limitation.123 Here the complaint detailed Ronan’s propensity for child molestation and how the Holy See knew (or should have known) of such
propensity when it placed him in the Portland archdiocese without warning parishioners.124 The Oregon District Court concluded that these acts
or omissions, particularly the Holy See’s failure to warn parishioners,
were not “based on plausible policy considerations for which the Holy
See is entitled to immunity under the discretionary function exception.”125
The Holy See also argued that the negligence claim should be dismissed for the plaintiff’s failure to show that the “entire tort occurred ‘in
the United States.’”126 In so arguing, the Holy See relied on Amerada
Hess for support that “the tort exception is inapplicable unless the Holy
See’s alleged acts or omissions occurred entirely within the United
States.”127 The Holy See theorized that the tort exception did not apply
under these facts given that the plaintiff’s allegations included tortious
conduct occurring in Rome.128 However, as the Oregon District Court
120. See supra text accompanying notes 71–76.
121. Id.
122. Doe v. Holy See, 434 F. Supp. 2d at 957.
123. Id. at 954 (rejecting the Holy See’s “rather generic characterization of the plaintiff’s allegations”).
124. Id. at 954–55. According to the complaint, the factual allegations of which went
undisputed, Ronan sexually molested a minor in Ireland in the 1950s prior to his placement in Chicago in the private counseling office of St. Philip’s High School. Id. at 931.
There he admitted to abusing three male students and “expressed confusion as to why he
would be assigned to work in the private counseling office where temptation to molest
children would be maximized.” Id. He was then placed in Portland. Id.
125. Id. at 956. This conclusion, apart from being surprisingly favorable to the plaintiff, also demonstrates the importance of detailed pleadings. Compare id. (discussing how
plaintiff’s complaint “adequately alleges” conduct that the discretionary function exception was not “designed to shield”), with English, 676 F. Supp. 761, 763 (S.D. Miss. 1987)
(stating that “[t]he complaint contains nothing more than general allegations” with regard
to defendants’ negligence).
126. Doe v. Holy See, 434 F. Supp. 2d at 950 (quoting 28 U.S.C. § 1605(a)(5)).
127. Id. at 952.
128. Id.
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observed, “Amerada Hess does not require this result.”129 This observation is correct. In Amerada Hess, the injury itself occurred outside of the
United States and therefore the tort clearly did not fall within the exception.130 Thus the Supreme Court did not delve into the issue of whether
the tortious act or omission also needed to occur entirely within the
United States—that analysis was done largely in dictum.131
Plaintiff Doe, on the other hand, advanced a plain reading of the tortious activity exception to argue that only the injury, not the act or omission, needs to occur in the United States.132 Although this particular reading of the provision has been consistently rejected in FSIA jurisprudence,133 the fact remains that the language of the act does not expressly
require the tortious act or omission to occur on U.S. soil.134
For guidance on the situs issue, the Oregon District Court looked to the
Ninth Circuit’s “middle ground” interpretation in Olsen.135 It noted that
Doe’s complaint contained allegations of negligent acts (such as placing
Ronan in Portland) as well as omissions (such as failure to warn).136 To
comport with Olsen, the Oregon District Court would have to evaluate
whether at least one of these occurred entirely within the United
States.137 As the opinion observed, “it is difficult to pinpoint the site of
an omission.”138 Thus the Oregon District Court focused its analysis on
the Holy See’s actions that were “easier to locate.”139
Apparently the easiest negligent act to locate was the Holy See’s transfer of Ronan from Chicago to Portland, even though it allegedly “knew
or should have known of Ronan’s dangerous propensities.”140 The Oregon District Court reasoned that since this transfer “occurred entirely
129. Id.
130. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989).
131. Id. at 441.
132. Doe v. Holy See, 434 F. Supp. 2d at 951.
133. See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 379 (7th
Cir. 1985) (stating that “[a]t least one district court has read [the tort exception] this
broadly, but this interpretation has been rejected by the Court of Appeals for that circuit,
and by every other court that has considered the issue”) (internal citations omitted).
134. See 28 U.S.C. § 1605(a)(5) (1976).
135. Doe v. Holy See, 434 F. Supp. 2d at 951. See also supra text accompanying notes
59–61.
136. Doe v. Holy See, 434 F. Supp. 2d at 952–53.
137. Id. at 953.
138. Id. The Oregon District Court recognized the dual argument that “the Holy See’s
failures could be said to have occurred inside the Vatican . . . . On the other hand, it is
also possible to situate a failure to warn at the location where such warning would have
been heard—Portland, Oregon.” Id.
139. Id.
140. Id.
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within the United States,” and since the plaintiff’s injuries thereafter
clearly occurred in the United States, the claim for negligence was legitimately based on “acts and injuries occurring entirely in the United
States.”141 The court used Olsen here in support of the theory that the
negligence claim was viable in spite of the plaintiff having alleged
“many other bases of tortious conduct . . . possibly occurring outside the
United States.”142 Although the Oregon District Court did not explicitly
do so, perhaps one could analogize that Ronan was like the negligent
pilot in Olsen in the sense that he was under control both at home (by
the local archdiocese) and abroad (by the Holy See) before scandal
erupted.143
The analogy, however, is not completely cohesive given that the Holy
See’s negligence, despite the Oregon District Court’s reasoning, cannot
logically be placed within the confines of the United States. The authority to make such a transfer was most likely granted from within the confines of the Holy See, despite the wording of the plaintiff’s complaint
that the Holy See literally placed Ronan in Portland.144 Perhaps the Holy
See could have prevailed on its motion had it attacked the factual truth of
this statement rather than launching only a facial attack as it chose to
do.145 Given that the Oregon District Court was bound to accept the facts
as true,146 however, its decision to deny the Holy See’s motion was
sound.
IV. CLERGY SEX ABUSE AND THE NEED FOR LEGISLATIVE CHANGE
The Doe v. Holy See decision exemplifies the confusion courts face
when interpreting the FSIA’s tort exception in cases where only some (if
any) of the tortious act or omission occurs in the United States. In the
wake of the new phenomenon of clergy sex abuse litigation,147 the debate
over the FSIA’s tort exception is an issue with which courts will continue
to grapple until the matter is resolved once and for all by Congress.
Meanwhile, to serve the interests of justice, as Congress intended with
141. Doe v. Holy See, 434 F. Supp. 2d at 953.
142. Id.
143. See Olsen v. Gov’t of Mexico, 729 F.2d 641, 644 (9th Cir. 1984). See also supra
text accompanying notes 52–61.
144. Doe v. Holy See, 434 F. Supp. 2d at 952–53.
145. Id. at 932.
146. Id. at 931.
147. Although many sex abuse complaints involving the Catholic Church allege conduct occurring well before the enactment of the FSIA, the Author has not found a case
prior to 1987 in which the Holy See was named a co-defendant for its role in the abuse.
See English v. Thorne, 676 F. Supp. 761 (S.D. Miss. 1987).
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the FSIA,148 courts determining the Holy See’s immunity for its role in
U.S. sex abuse cases should pay greater credence to the plain meaning of
the tort exception. Otherwise the Holy See’s liability will depend on
which case law a particular jurisdiction chooses to follow when deciding
the issue, thereby creating inconsistent and potentially unjust decisions.
In his article Refining the Foreign Sovereign Immunities Act, Joseph
Dellapenna, an international law scholar and a member of the Working
Group, cites the tort exception as an example of one of the difficulties
“judges have bemoaned” when interpreting the “poorly drafted” FSIA.149
Further, as the Working Group has stated, “Despite the substantial case
authority, there are reasons for questioning the conclusion that the noncommercial tort exception, as currently drafted, requires the tortious act
or omission to occur in the United States.”150 The Working Group has
also observed that the tort exception’s legislative history, upon which
courts have often relied, is more ambiguous than it seems given Congress’s remark that the tort “must occur within the jurisdiction of the
United States.”151 “Jurisdiction,” as the Working Group has noted, is not
synonymous with “territory.”152 Dellapenna has asserted that foreclosing
jurisdiction on the grounds that only part of the tortious conduct took
place outside the United States is “hardly likely to have been what Congress meant in [the tort exception].”153
The Working Group has also questioned the role of legislative history
as a dispositive factor in FSIA jurisprudence. The Working Group’s report noted that the Supreme Court “has not yet squarely addressed the
issue.”154 Meanwhile, “some of [the Supreme Court’s] current members
place substantial weight on plain language and tend to look skeptically
148. 28 U.S.C. § 1602 (1976).
149. Dellapenna, supra note 18, at 60.
150. Working Group, supra note 28, at 566.
151. Id. (emphasis added). See also H.R. Rep. No. 94-1487, at 21 (1976).
152. Working Group, supra note 28, at 566. Jurisdiction: “A government’s general
power to exercise authority over all persons and things within its territory; esp., a state’s
power to create interests that will be recognized under common-law principles as valid in
other states.” BLACK’S LAW DICTIONARY 867 (8th ed. 2004). Territory: “A geographical
area included within a particular government’s jurisdiction; the portion of the earth’s
surface that is in a state’s exclusive possession and control. Id. at 1512.
153. Dellapenna, supra note 18, at 137.
154. Working Group, supra note 28, at 566. Presumably the Working Group’s assertion here is in reference to Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.
428 (1989), and the fact that much of the Supreme Court’s opinion regarding the situs of
the tortious conduct is dictum, given that the plaintiff’s injury in that case occurred outside the United States and clearly precluded jurisdiction over the foreign state. See supra
text accompanying notes 127–31.
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on the use of legislative history.”155 This approach was also taken by Circuit Judge Edwards in his Persinger dissent.156 To him, the language of
the tort exception was not ambiguous at all and therefore he saw “no reason to resort to the legislative history to clarify the plain language of the
statute.”157 The simple fact that Congress did not enact the same language used in the House Report was enough to convince the dissenting
judge that the plaintiff’s claims, and those of his parents, fell within the
tort exception and should have withstood dismissal.158
Granted, when the Persinger decision came down in the District of Columbia, the Seventh Circuit had yet to hand down its opinion in Frolova,
a case clearly guided by legislative history.159 In Frolova, however, the
court rejected another proposition grounded in the legislative history of
the FSIA.160 The district court had dismissed the plaintiff’s claims sua
sponte.161 The Soviet Union itself did not file its own motion to dismiss
because it did not appear in the action.162 The FSIA House Report states
that “sovereign immunity is an affirmative defense which must be specially pleaded.”163 Had the court adopted this theory, the plaintiff’s complaint might not have been dismissed absent a responsive pleading from
the Soviet Union raising the defense. Instead, the court stated that this
portion of the FSIA’s legislative history “is not entirely accurate,” and
that “the question of immunity must be considered by a district court
even though the foreign country . . . has not entered an appearance.”164
Therefore, despite its semblance of deference to Congressional intent, the
Seventh Circuit was nonetheless selective as to which portions of the
FSIA’s legislative history had merit.
155. Working Group, supra note 28, at 566.
156. Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (D.C. Cir. 1984) (Edwards, J., dissenting).
157. Id. at 844 (Edwards, J., dissenting).
158. Id.
159. The majority in Persinger cited the Frolova case while it was still at the district
court level. See Persinger, 729 F.2d at 842 (citing Frolova v. Union of Soviet Socialist
Republics, 558 F. Supp. 358 (N.D. Ill. 1983)). At the time, as Judge Edwards noted, the
majority’s discussion of the FSIA was “pure dictum.” Id. at 844 (Edwards, J., dissenting).
See also Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 372 (7th Cir.
1985) (noting that the lower court “discussed, but did not decide, whether the Soviet Union was immune from suit under the [FSIA]”).
160. Frolova, 761 F.2d at 373.
161. Id. at 371.
162. Id. at 371 n.1.
163. H.R. Rep. No. 94-1487, at 17 (1976).
164. Frolova, 761 F.2d at 373.
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In light of Doe v. Holy See, and the plaintiff’s initial success in withstanding the motion to dismiss, there are undoubtedly many lawsuits yet
to come in which the Holy See will be named a defendant. Given this
prospect, consistency, not selectivity, should be a common goal among
courts that must decide whether the tort exception permits claims involving tortious activity in multiple countries (as in Olsen)165 or bars them (as
in English).166 Such consistency will not only aid courts presented with
clergy sex abuse claims, but also those addressing sovereign immunity in
cases pending in different districts that involve common questions of
fact.167
V. BENEFITS OF A PLAINTIFF-FRIENDLY APPROACH
Lawsuits involving sex abuse by members of the Roman Catholic
clergy have become commonplace in recent U.S. history.168 Among the
archdioceses contributing to the astounding settlement figures are Los
Angeles ($660 million)169 and Boston (over $100 million).170 The Archdiocese of Portland, a co-defendant in Doe v. Holy See, recently ended
bankruptcy proceedings with a $75 million settlement.171 The enormous
settlements between these archdioceses and sex abuse plaintiffs begs the
question of why plaintiffs would include the Holy See as a defendant at
all given the general lack of success in piercing its immunity. In other
words, why complicate a lawsuit with the inclusion of a foreign sover-
165. Olsen v. Gov’t of Mexico, 729 F.2d 641 (9th Cir.1984). See supra text accompanying notes 59–61.
166. English v. Thorne, 676 F. Supp. 761 (S.D. Miss. 1987). See supra text accompanying notes 78–79.
167. See, e.g., Notice of Pendency of Other Action or Proceeding, Alperin v. Vatican
Bank, No. C99-4941MMC (N.D. Cal. June 25, 2002), available at http://www.
vaticanbankclaims.com/plaintiffs.pdf. Plaintiffs’ attorneys filed this document calling for
coordination of pretrial matters pertaining to multi-district litigation in which the sovereign immunity of the Holy See was “an issue of first importance.” Id. at 5–6. The document suggested that lawsuits naming the Holy See as a defendant, including pending
sexual abuse cases, should be coordinated to “avoid divergent findings on the issue of
Vatican amenability to suit in the United States.” Id. at 7. See also 28 U.S.C. § 1407(a)
(1968).
168. See supra text accompanying notes 2–3.
169. Goodstein, supra note 3.
170. Katie Zezima, In Boston, Church Leaders Offer Atonement for Abuse, N.Y.
TIMES, May 30, 2006, at A14, available at http://www.nytimes.com/2006/05/30/us/
30religion.html.
171. Ed Langlois & Robert Pfohman, Portland Archdiocese Ends Bankruptcy With $75
Million Settlement, CATHOLIC NEWS SERVICE, http://www.catholicnews.com/data/
stories/cns/0702198.htm.
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eign when the local culprits are both more accessible and willing to settle?
One explanation is that suing the Holy See will serve as a wake-up call
for the Catholic Church to address the sex scandal epidemic from the
root up. William McMurry, a lead attorney in O’Bryan, stated, “This
won’t be over until the party who is directly accountable is brought to
justice, and in my opinion that’s the Holy See.”172 And, as plaintiff James
O’Bryan stated, “I would just like to see the Catholic Church
changed.”173
A recent measure taken by Pope Benedict XVI (the “Pope”) suggests
that the Holy See feels a similar urgency to quell the clergy sex abuse
scandal. In 2005, the Pope was named as an individual defendant in the
case of Doe v. Roman Catholic Diocese of Galveston-Houston.174 The
complaint, which arose from the alleged sexual abuse of three minors by
a local priest, included conspiracy to commit sexual assault, fraudulent
concealment, and negligence.175 In that case, the U.S. Government filed a
suggestion of immunity on behalf of the Pope, asking the Southern District of Texas to dismiss the suit against him “on the basis of head-ofstate immunity.”176 Consequently, the court granted the Pope’s motion to
dismiss with prejudice.177
Just months prior to the decision, however, the Pope approved and ordered publication of an Instruction that affirmed the Catholic Church’s
view that homosexual acts are “intrinsically immoral and contrary to the
natural law.”178 Therefore, the document says, the Church “cannot admit
to the seminary or to holy orders those who practise homosexuality, present deep-seated homosexual tendencies or support the so-called ‘gay
172. John L. Allen, Jr., Vatican Asks Rice For Help In Sex Abuse Lawsuit, NAT’L
CATHOLIC REPORTER, Mar. 11, 2005, available at http://natcath.org/NCR_Online
/archives2/2005a/031105/031105h.php.
173. Smith & Wolfson, supra note 82.
174. 408 F. Supp. 2d 272 (S.D. Tex. 2005).
175. Id. at 273.
176. Id. at 279. The court also noted a distinction between the immunity of foreign
states and heads of state, stating, “Although the absolute immunity of foreign states has
been affected by case law and by passage of the [FSIA], the State Department retains the
authority to assert immunity for diplomatic personnel, including foreign heads of state.”
Id. at 278.
177. Id. at 282.
178. Congregation for Catholic Education, Instruction Concerning the Criteria for the
Discernment of Vocations With Regard to Persons With Homosexual Tendencies In View
of Their Admission to The Seminary And To Holy Orders (Nov. 4, 2005) [hereinafter
Congregation], available at http://www.vatican.va/roman_curia/congregations/ccatheduc/
documents/rc_con_ccatheduc_doc_20051104_istruzione_en.html.
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culture.’”179 The timing of the Instruction was hardly coincidental given
the pressure on the Holy See to address the “sex abuse scandal that
rocked the church in the United States.”180 The fact that the Pope happened to be defending himself in a U.S. District Court at the time of the
Instruction’s release further supports the inference that the Holy See and
its officials were feeling pressure from sex abuse plaintiffs.181 Regardless
of the controversial nature of such a document,182 it nonetheless indicates
that the movement of sex abuse lawsuits onto a global stage has struck a
chord at the very seat of Catholicism.
The United States Conference of Catholic Bishops (“Bishops”) took a
similar stance in 2006, when it issued a document entitled Ministry to
Persons with a Homosexual Inclination: Guidelines for Pastoral Care.183
The document likewise affirmed the Catholic view that “homosexual acts
cannot fulfill the natural ends of human sexuality”184 and that “the
Church has a right to deny roles of service to those whose behavior violates her teaching.”185 The document immediately followed news that the
Bishops voted to spend $335,000 to help fund research on the “causes
and context” of clergy sex abuse.186
As with the Pope, the timing of the Bishops’ endeavors is again illustrative of the Catholic Church’s scramble to atone for the devastating
sexual misconduct of its clergy. In 2005, the Bishops issued a revision of
179. Id.
180. Delia Gallagher, Vatican Issues Gay Policy Document, CNN.COM, Nov. 29, 2005,
http://www.cnn.com/2005/WORLD/europe/11/29/vatican.gays/index.html?section=cnn_
latest.
181. See Chris Buell, U.S. Says Pope Immune From Clergy Abuse Lawsuit, JURIST,
Sept. 20, 2005, http://jurist.law.pitt.edu/paperchase/2005/09/us-says-pope-immune-fromclergy-abuse.php (noting that “[t]he instruction . . . is said to be part of an effort to protect
the church from future sex abuse scandals”).
182. See, e.g., Gallagher, supra note 180 (noting that “gay groups have said the church
is using homosexuals as scapegoats for its sexual abuse scandals”).
183. The United States Conference of Catholic Bishops, Ministry to Persons with a
Homosexual Inclination: Guidelines for Pastoral Care (November 14, 2006), available
at http://www.usccb.org/dpp/Ministry.pdf.
184. Id. at 3.
185. Id. at 17. The Bishops nonetheless went on to state that Catholics should be mindful of “such persons,” and church policies should “explicitly reject unjust discrimination
and harassment of any persons, including those with a homosexual inclination.” Id. at 17–
18.
186. The United States Conference of Catholic Bishops, U.S. Bishops Vote Unanimously to Release Money for Research On Sexual Abuse by Clergy, November 13, 2006,
http://www.usccb.org/comm/archives/2006/06-224.shtml. According to the Bishops’
Web site, the funding will cover three segments of a study undertaken by John Jay College of Criminal Justice. Id.
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their Charter for the Protection of Children and Young People.187 In the
deeply apologetic preamble, the Bishops “express[ed] great sorrow and
profound regret” in recognition of the “grave harm” that had been inflicted on minors.188 The Bishops also suggested that actions by local
dioceses were necessary to “restore the bonds of trust.”189
The actions that some dioceses have taken, however, are not necessarily viewed as just in the eyes of sex abuse victims.190 For example, the
church’s renewed effort to expel homosexuals from the ministry,191 reflected in the Instruction and taken in response to this crisis, is unlikely
to make amends with those who have already suffered for decades as a
result of ministerial indiscretions. “Twist of Faith,” a 2004 documentary
film, chronicles a sex abuse victim’s struggle to procure an admission of
responsibility from his local archdiocese.192 The victim, Tony Comes,
suggested in an interview with Home Box Office, Inc. that he (and other
victims) did not go public to get money, but rather for the truth.193 Barring homosexuals from the priesthood, it seems, is hardly an admission
of guilt or an apology from the Holy See.194 And it is doubtful that the
secrecy and silence that some archdioceses have employed in the United
States with regard to sex abuse195 is the type of “action” called for by the
Bishops in their 2006 Charter.196
For the sex abuse victims who do seek pecuniary damages, there are
other obstacles besides the evasiveness of the Catholic Church standing
in the way of just compensation. For example, those who sue the alleged
187. CHARTER, supra note 1.
188. Id.
189. Id.
190. See, e.g., TWIST OF FAITH (Home Box Office, Inc. [HBO] Documentary Films
2004) (chronicling the plight of a sex abuse plaintiff in search of not only damages, but
an admission from the Catholic Church). See also infra text accompanying notes 192–93.
191. See supra text accompanying notes 178–79.
192. TWIST OF FAITH, supra note 190.
193. Interview with Tony Comes, HBO, http://www.hbo.com/docs/programs/
twistoffaith/interview_tonycomes.html (last visited Feb. 22, 2008). Comes “reluctantly”
settled with the Catholic Diocese of Toledo for $55,000. TWIST OF FAITH, supra note
190.
194. See Congregation, supra note 178.
195. See TWIST OF FAITH, supra note 190 (discussing the practice of clergy members
invoking their “mental reservation” and lying to protect the Catholic Church from scandal). See also New Advent Catholic Encyclopedia, Mental Reservation, http://www.
newadvent.org/cathen/10195b.htm (last visited Mar. 13, 2008) (“According to the common Catholic teaching it is never allowable to tell a lie . . . . However, we are also under
an obligation to keep secrets faithfully, and sometimes the easiest way of fulfilling that
duty is to say what is false, or to tell a lie.”).
196. CHARTER, supra note 1.
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perpetrator (the priest himself) may find that he has taken a vow of poverty,197 in which case he may be judgment-proof.198 Assuming those victims may then be inclined to direct their lawsuits at the archdiocese under
the doctrine of respondeat superior, the issue of bankruptcy may come
into play.199 Despite the argument that “[u]sing bankruptcy to limit a
church’s responsibility to those who have been harmed would contradict
the church’s own teachings,”200 several archdioceses have resorted to this
very measure in response to the sex abuse lawsuits.201 As it can be argued
that the vow of poverty serves as a policy justification for holding archdioceses vicariously liable for their priests,202 it can also be said that
piercing the sovereign veil of the Holy See is justifiable given that local
archdioceses, from which the Holy See receives contributions, attempt to
shield themselves from liability by filing for bankruptcy.203
197. New Advent Catholic Encyclopedia states:
The vow of poverty may generally be defined as the promise made to God of a
certain constant renunciation of temporal goods, in order to follow Christ. The
object of the vow of poverty is anything visible, material, appreciable at a
money value. Reputation, personal services, and the application of the mass, do
not fall under this vow; relics are included only on account of the reliquary
which contains them, and (at least in practice) manuscripts, as such, remain the
property of the religious. The vow of poverty entirely forbids the independent
use, and sometimes the acquisition or possession of such property as falls
within its scope. A person who has made this vow gives up the right to acquire,
possess, use, or dispose of property except in accordance with the will of his
superior.
New Advent Catholic Encyclopedia, Poverty, http://www.newadvent.org/cathen/12324a.
htm (last visited Feb. 22, 2008).
198. See Michael J. Sartor, Respondeat Superior, Intentional Torts, and Clergy Sexual
Misconduct: The Implications of Fearing v. Bucher, 62 WASH. & LEE L. REV. 687, 724
(2005).
199. For an extensive discussion of the implications of bankruptcy in the church sex
scandal context, see David A. Skeel, Jr., The Impact of Clergy Sexual Misconduct Litigation on Religious Liberty: Avoiding Moral Bankruptcy, 44 B.C. L. REV. 1181 (2003).
200. Id. at 1197.
201. Among these are the dioceses of Spokane, Washington, Tucson, Arizona, and
Davenport, Iowa. See Assoc’d Press, Iowa Catholic Diocese Files For Bankruptcy After
Sex-Abuse Claims, FOX NEWS, Oct. 11, 2006, http://www.foxnews.com/story/0,
2933,219741,00.html; Janet I. Tu, Spokane Diocese Files For Bankruptcy, SEATTLE
TIMES, Dec. 7, 2004, available at http://seattletimes.nwsource.com/html/localnews/
2002111403_diocese07m.html.
202. Sartor, supra note 198, at 724 (noting that “[s]ome courts have acknowledged this
policy consideration when evaluating respondeat superior claims arising out of sexual
assaults perpetrated by clergy members who have taken the vow of poverty”).
203. But see Skeel, supra note 199, at 1198 (discussing potential benefits of bankruptcy as a way of “coordinating the debtor’s response to a wave of litigation”).
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If the Holy See is at all responsible for the horrific sex abuse epidemic
in the United States, as Doe v. Holy See suggests with uncontroverted
facts, the FSIA tort exception can serve as a mechanism for victims who
try in vain to seek justice at home. This is something Congress must address, either by amendment or at least a clear cut statement of intent,
given that this type of scandal was not likely in mind when it enacted the
FSIA. At that time, the Holy See was not yet deemed a foreign sovereign
by the United States.204 Further, the wave of litigation involving clergy
sex abuse, particularly that which actually implicated the Holy See, did
not surface until the late 1980s.205 Therefore, it would be appropriate for
Congress to reexamine the terms of the tort exception and enact language
to clarify the provision. One option would be to simply incorporate the
House Report language into the statute and require the entire tort, including act or omission, to occur in the United States.206 As a matter of policy, however, such a restriction would be damaging to the interests of sex
abuse victims that have been wronged by the Holy See’s negligence occurring in Rome, especially if local dioceses continue to seek bankruptcy
in lieu of settlement.207
Another possibility for the legislature is the Working Group’s suggestion that a “substantial portion” of the tortious conduct occur in the
United States.208 This measure would at least give courts some license to
exercise jurisdiction over the foreign sovereign in difficult multi-country
scenarios like that of Doe v. Holy See.209 The Working Group conceded,
however, that “substantial” is a rather vague term.210 Considering the
decision in Doe v. Holy See, and the near certainty that more plaintiffs
will seek retribution from the Holy See in the future given the Oregon
District Court’s ruling, vague terminology will not assist courts any more
than the inconsistent interpretations of the FSIA, judicial or otherwise.211
Who is to say, for example, that the Holy See’s conduct in Oregon (assuming any of its conduct actually occurred there) played a “substantial”
204. It was not so deemed until 1984. O’Bryan I, 490 F. Supp. 2d 826, 829 (W.D. Ky.
2005).
205. See supra note 147.
206. H.R. Rep. No. 94-1487, at 21 (1976).
207. See supra text accompanying notes 197–203.
208. Working Group, supra note 28, at 568.
209. Id. The Working Group, however, did not cite clergy sex abuse cases as an example here. Its primary example of a “multi-country tort situation” was Olsen v. Gov’t of
Mexico, 729 F.2d 641 (9th Cir. 1984). See Working Group, supra note 28, at 568.
210. Working Group, supra note 28, at 568 (also noting that the phrase “substantial
portion” is “similar to, and no more vague than, other standards currently employed in the
FSIA”).
211. See supra Part I.
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role in Ronan’s abuse of Doe? The answer is a judge, and judges may
very well differ on what constitutes “substantial.”
The fact of the matter is that Congress intended the FSIA to serve the
interests of foreign states and U.S. litigants alike.212 Its language should
not be subject to interpretation that sacrifices the interests of one for the
other simply because a foreign state’s misconduct occurs wholly or partially outside the United States.213 To prevent this from happening, Congress should ratify the Oregon District Court’s decision, based on the
Ninth Circuit’s “middle ground” interpretation,214 to prevent foreign
states like the Holy See from escaping liability for conduct that severely
affects U.S. litigants. Therefore, to avoid confusion, Congress should
adopt language more closely aligned to the Restatement of Foreign Relations Law commentary215 and the FSIA commercial activity exception.216
For example:
A foreign state shall not be immune from the jurisdiction of the courts
of the United States or of the States in any case . . . in which money
damages are sought against a foreign state for personal injury or death
. . . occurring in the United States and caused by the tortious act or
omission of that foreign state and that act causes a direct effect in the
United States. . .217
Additionally, in case of lingering confusion, Congress could clarify, as
the Restatement of Foreign Relations Law did, that the tort exception
does not apply to “indirect” torts, such as loss of consortium, where the
injury occurs abroad.218
212. 28 U.S.C. § 1602 (1976). Further, as the Ninth Circuit stated, the forum state “has
strong interests in protecting its residents from injury and in furnishing a forum where
their injuries may be remedied.” Olsen, 729 F.2d at 650. This interest was one of the
factors the Olsen court considered in determining the reasonableness of exercising jurisdiction over the foreign state. Id. at 649–51.
213. See, e.g., English v. Thorne, 676 F. Supp. 761, 764 (S.D. Miss. 1987).
214. Doe v. Holy See, 434 F. Supp. 2d 925, 951 (D. Or. 2006).
215. See supra note 64 and accompanying text.
216. See supra note 35 and accompanying text.
217. 28 U.S.C. § 1605(a)(5) (1976) (emphasis on additional language inserted by Author and adapted from 28 U.S.C. § 1605(a)(2)).
218. Supra note 64. Such a clarification might also ameliorate some of the Working
Group’s concerns regarding claims such as “emotional distress, loss of consortium, and
other non-physical injuries stemming from foreign conduct, as well as latent injuries that
developed in the United States from earlier exposure to substances or conduct abroad.”
Working Group, supra note 28, at 567 (noting that “if there were no territorial restriction
on the tortious act or omission, foreign sovereigns could be subject to suit in U.S. courts
for tortious conduct committed anywhere in the world, so long as the conduct had effects
in the United States”).
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Another possibility, and a timely one in light of the O’Bryan II opinion,219 would be for the FSIA to incorporate a definition of what constitutes an “official” or “employee.”220 Given that these definitions remain a
matter of state law,221 there is still room for inconsistency among the
courts’ opinions regarding Roman Catholic officials, such as priests and
bishops. If these positions fell within a uniform definition of “employee,”
plaintiffs would be almost guaranteed some recourse against the Holy
See, if not for its own actions, but for the actions of its officials under the
doctrine of respondeat superior.222 A uniform definition of terms of this
kind would help serve the interests of justice in addition to creating more
uniformity among courts’ decisions involving the Holy See and its agents
in general.
CONCLUSION
In conclusion, a “crisis without precedent” that may be caused in part
by the acts of a foreign state merits consistent treatment in U.S. courts,223
particularly where such acts or omissions are difficult to pinpoint.224 If
Doe v. Holy See remains good law,225 as Olsen did in the Ninth Circuit,226 judges should be at liberty to follow it without having to embark
on a confusing analysis of Congressional intent that was never truly enacted in the FSIA.227 Given the vast impact of the clergy sex abuse scandal in recent history228 and the fact that not all plaintiffs can procure adequate compensation at home,229 the FSIA should not prevent litigation
against the Holy See in cases where the factual allegations sufficiently
demonstrate liability. This principle should hold true irrespective of the
territory in which the tortious harm occurred.
219. See supra text accompanying notes 97–99.
220. In its current form, the FSIA’s definitions section defines the following terms:
“foreign state,” “agency or instrumentality of a foreign state,” the “United States,”
“commercial activity,” and “commercial activity carried on in the United States by a
foreign state.” 28 U.S.C. § 1603 (1976).
221. O’Bryan II, 471 F. Supp. 2d 784, 790 (W.D. Ky. 2007) (noting that whether certain agents are “officials or employees of the Holy See as defined in FSIA . . . is not an
easy question to answer”).
222. See id.
223. CHARTER, supra note 1.
224. Doe v. Holy See, 434 F. Supp. 2d 925, 953 (D. Or. 2006).
225. See Allen, supra note 66 (noting that the Holy See’s attorney filed notice of appeal in the Ninth Circuit regarding the Oregon District Court’s decision).
226. Doe v. Holy See, 434 F. Supp. 2d at 951.
227. See id. at 950–53.
228. See supra Introduction.
229. See supra text accompanying notes 197–203.
2008]
CALL FOR REFORM: SEX ABUSE & THE FSIA
683
In light of the foregoing, Congress must amend the FSIA to facilitate
uniform interpretation among courts, and more importantly, to allow victims of clergy sex abuse to obtain the recourse they deserve. Revising the
language of the tort exception to be less restrictive in terms of territory is
one option. Another option would be addressing the question of what
constitutes an “official” or “employee” of the Holy See given that these
terms remain undefined in the FSIA.230 It would better serve the interests
of justice, as the FSIA purports to do,231 for plaintiffs at the very least to
pierce the sovereignty of the Holy See through the acts of its agents at
home.
William Brian Mason*
230. O’Bryan II, 471 F. Supp. 2d 784, 790 (W.D. Ky. 2007).
231. 28 U.S.C. § 1602 (1976).
* B.A., Vanderbilt University 2002; J.D. Brooklyn Law School (expected 2008);
Executive Notes & Comments Editor of the Brooklyn Journal of International Law
(2007–2008). Many thanks to Rachel A. Steamer, Esq. for her infinite wisdom!
ARE SECURITIES REGULATORS PREPARED
FOR A TRULY TRANSNATIONAL
EXCHANGE?
INTRODUCTION
O
n April 4, 2007, NYSE Euronext Inc., the holding company of
NYSE Group Inc. (“NYSE”) and Euronext N.V. (“Euronext”),
commenced trading as the “world’s largest and most liquid exchange
group.”1 The combination of NYSE and Euronext “marks a notable step
in the continuing globalization of the world’s capital markets.”2 On June
1, 2006, NYSE and Euronext, two separate publicly held companies at
the time, signed an agreement to combine the two securities trading exchanges in a “merger of equals” resulting in the creation of the first
trans-Atlantic merger of its kind and the world’s first global exchange.3
The proposed combination was approved by Euronext shareholders on
December 19, 2006 and by NYSE shareholders on December 20, 2006.4
Today, NYSE Euronext Inc. is a U.S. holding company with U.S. headquarters in New York and international headquarters in Paris.5 The company operates six cash equities exchanges in five countries and six derivatives exchanges in six countries, and it represents a combined $30.3
trillion total market capitalization of listed companies with approximately $139 billion in average daily trading.6
Financial markets, such as stock exchanges or equity exchanges,7 are a
place where people come together to trade money for a chance to earn
more money.8 Exchanges bring together investors, who have funds and
1. NYSE Euronext, NYSE Euronext At-a-Glance, http://www.nyse.com/pdfs/
NYSE_Euronext_pk.pdf (last visited Jan. 9, 2008).
2. Press Release, U.S. Securities and Exchange Commission [SEC], Euronext Regulators Sign Regulatory Cooperation Arrangement (Jan. 25, 2007), available at
http://www.sec.gov/news/press/2007/2007-8.htm.
3. Press Release, NYSE Group Inc., NYSE Group and Euronext N.V. Agree to a
Merger of Equals (June 1, 2006), available at http://www.nyse.com/about/publication/
1145959806931.html.
4. For discussion on Euronext shareholder approval, see U.S.-Europe Exchange One
Step Closer: The All-But-Sure Merger of the NYSE and European Bourses Will Streamline Operations and Lower Transaction Costs, BUS. WK. ONLINE, Dec. 20, 2006. For
discussion on NYSE shareholder approval, see Big Board Holders Back Euronext Deal,
N.Y. TIMES, Dec. 21, 2006, at C6.
5. NYSE Euronext At-a-Glance, supra note 1.
6. Id.
7. An “exchange” is defined in section 3(a)(1) of the Securities Exchange Act of
1934. 15 U.S.C. § 78(c) (2006).
8. J. William Hicks, INTERNATIONAL DIMENSIONS OF U.S. SECURITIES LAW § 1:1
(West Group, 2006). Stock markets are “important part or our lives.” Norman S. Poser,
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seek a favorable return on these funds through a contribution of capital to
a business in exchange for an equity interest conferring ownership and a
right to receive profits, and the businesses that seek such capital.9 Some
goals of equity market participants are efficiency and improving the allocation of resources, and the regulation of markets is essential to these
goals.10 Through the promotion of investor confidence, the regulation of
securities increases efficiency and confers benefits on market participants, including the reduction of transaction costs and enhanced liquidity.11 Empirical evidence suggests that strong securities laws “encourage
economic development.”12 The “law matters” in protecting the integrity
and prosperity of securities markets and exchanges because the strength
of legal protection will determine companies’ access to external finance.13
Historically, securities regulators have worked to promote market efficiency within their own nation state. Stock exchanges themselves have
made an essential contribution to regulation by providing “orderly financial markets.”14 Domestic governmental organizations have also played a
pivotal role in regulating securities markets through applying comprehensive networks of regulations and safeguards that ensure the integrity
of the markets and financial systems. Due to high communication and
The Stock Exchanges of the United States and Europe: Automation, Globalization, and
Consolidation, 22 U. PA. J. INT’L ECON. L. 497, 497 (2001).
9. Hicks, supra note 8 § 1:2.
10. Zohar Goshen & Gideon Parchomovsky, The Essential Role of Securities Regulation, 55 DUKE L.J. 711, 713 (2006). (“[T]he ultimate goal of securities regulation is to
attain efficient financial markets and thereby improve the allocation of resources in the
economy.”).
11. Id. at 715–716. See also American Bar Association, Special Study Group of the
Committee on Federal Regulation of Securities, Special Study on Market Structure, Listing Standards and Corporate Governance, 57 BUS. LAW 1487, 1496–1497 (2002) [hereinafter ABA Report].
12. John C. Coffee, Jr., Racing Towards the Top?: The Impact of Cross-Listings and
Stock Market Competition on International Corporate Governance, 102 COLUM. L. REV.
1757, 1828 (2002) (“[S]trong laws protecting minority investors are a precondition to
financial development.”).
13. Id. at 1829. The more confidence investors have in the market and in the exchange, the more likely they are to provide capital to invest in the companies. See generally id.; ABA Report, supra note 11. The United States began to recognize and take seriously the need for financial disclosure by listed companies after the stock market crash of
1929 when, with access only to limited financial disclosure requirements, investor confidence was not maintained and companies lost significant access to external capital. See
ABA Report, supra note 11, at 1499.
14. Paris Europlace, Lachmann Report, Summary and Conclusion (Oct. 4, 2006),
available at http://www.paris-europlace.net/files/report_lachmann.pdf [hereinafter Lachmann Report].
2008]
ARE SECURITIES REGULATORS PREPARED . . . ?
687
technology costs, trading has remained relatively national, and laws governing these trades have remained within each country’s jurisdiction.15
This, however, is becoming increasingly problematic as capital flow
through stock exchanges is “no longer limited by national boundaries”16
and exchanges become more global, functioning on an international level.
Because the future of stock exchanges and the markets that they operate is “inseparably linked”17 and inevitably cross-border, securities regulation should try to meet this new market structure and become, in a way,
cross-border itself. As the cost of communication and the movement of
information is falling, the barriers that kept stock exchanges national are
eroding.18 Additionally, stock exchanges are demutualizing and converting from not-for-profit to for-profit corporations.19 The public shareholder-owner of the stock exchange is interested in maximizing profits
through efficient operations, and this seems to suggest a movement towards consolidation of stock markets in order to direct pools of capital to
the most efficient and productive uses.20
Once stock exchanges operate across nations, companies listed on
these exchanges will trade across nations, and the current nationalistic
structure of regulating these companies and trades will no longer suffice.
The question then becomes who should regulate. Stock exchanges themselves could utilize listing requirements and other rules governing all
participants, but self-regulation is no longer a viable option because demutualization has caused an inherent conflict of interest between owners
and customers. The national regulators could come to a consensus and
harmonize regulations, but converging national regulations is plagued by
conflicting legal systems. Therefore, in the face of a new cross-border
model for stock exchange operation, the international community should
find a new model for international securities regulation.
Part I of this Note discusses the details of the merger between NYSE
and Euronext and argues that, while the current plan is to maintain separately regulated platforms within each jurisdiction, there is an impending
need for further harmonization between the European Union and the
United States securities regulatory agencies. Part II explores the possibility of allowing future cross-border exchanges to self-regulate and identifies the problems inherent in such self-regulation. Part III will discuss the
15.
16.
17.
18.
19.
20.
See infra text accompanying notes 61–93.
Poser, supra note 8, at 498.
Lachmann Report, supra note 14.
See infra text accompanying notes 61–93.
See id.
Poser, supra note 8, at 499.
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current attempts at harmonization, cooperation between the regulatory
authorities in the European Union and the United States, and the underlying difficulties and inadequacies of harmonization between these jurisdictions due to each legal system. Finally, Part IV will suggest an alternative approach that proposes the creation of a cross-border organization
better equipped to handle the international evolution of stock markets.
I. GLOBALIZATION OF STOCK EXCHANGES
NYSE Euronext Inc. is the holding company recently created through
the merger of NYSE Group Inc. and Euronext N.V., two operators of
long-standing stock exchange platforms.21 NYSE Group Inc.22 operates
the New York Stock Exchange, the largest existing cash equities exchange.23 It is a publicly held for-profit enterprise with headquarters in
New York City, but it is regulated by the United States government and
services the entire United States as “the leader in providing the best prices and lowest trading costs.”24 The NYSE has traded in auction format25
since 1985 but has recently adopted a new hybrid market model that “integrates the best aspects of the auction market with automated trading [so
that] customers receive the broadest choice of trade execution preferences.”26 In this hybrid market, specialists27 and brokers28 deal with or-
21. NYSE Euronext At-a-Glance, supra note 1.
22. NYSE Group Inc. also operates the NYSE Arca, but for the purposes of this Note,
focus is limited to the New York Stock Exchange. NYSE Group Inc. was formed in 2006
through the merger between New York Stock Exchange Inc. and Acrchipelago Holdings.
The New York Stock Exchange Inc. was previously a not-for-profit entity. However,
NYSE was created as a for-profit publicly-traded company. See generally Press Release,
NYSE Group Inc., New York Stock Exchange/Archipelago Holdings Merger Complete
(Mar. 7, 2006) available at http://www.nyse.com/press/114172984519.html.
23. NYSE Group Roles Out Options Trading Platform, 13 NYSE GROUP NEWSLETTER
7 Dec. 2006, available at http://www.nyse.com/about/publication/newsletter.html. See
also Press Release, NYSE Group Inc., supra note 3.
24. NYSE, A Guide to the NYSE Marketplace 5 (2d ed. 2006), available at
http://www.nyse.com/pdfs/nyse_bluebook.pdf [hereinafter NYSE Guide].
25. Trades were made in person on an auction floor where professionals interacted
with quotes and orders to obtain the best price possible for their customers. See generally
NYSE Group Inc., Glossary, http://www.nyse.com/glossary/1042235996520.html (last
visited Jan. 13, 2008).
26. NYSE Group Inc., NYSE Hybrid Market FAQ (2006), available at http://www.
nyse.com/pdfs/hybridfaqs.pdf.
27. A specialist in the NYSE is a “member of the NYSE who is responsible for maintaining a fair and orderly market in the stocks they are allocated. At all times, specialists
must put their customers’ interests above their own.” NYSE Guide, supra note 24, at 9.
2008]
ARE SECURITIES REGULATORS PREPARED . . . ?
689
ders both electronically and in person to create more efficient tradeexecution quality.29
Euronext N.V. is a public limited liability company organized under
the laws of the Netherlands.30 It provides exchange platforms for regulated stock and derivatives in Belgium, France, the Netherlands, Portugal, and the United Kingdom31 and has taken steps in recent years towards providing users with a single market.32 The company was formed
in 2000 as the first truly cross-border exchange and in 2004 it successfully integrated its markets through a harmonized IT platform that created an efficient, cost effective, and highly liquid cross-border exchange.33 Each market participant now has a single point of access to
trading since the exchanges run on an entirely electronic trading system.34
A. The Merger
Before NYSE Euronext Inc. was created, when the merger was simply
a proposition, NYSE and Euronext gave many reasons why the merger
would be in both companies’ best interests. In the words of NYSE CEO
John A. Thain, “In today’s marketplace, it’s not enough to simply be a
leader in the United States. It’s not enough simply to be the champion in
Europe. It really is important to be a global competitor.”35 The merger is
the manifestation of the strategic vision shared by NYSE and Euronext
for “further market consolidation, greater diversity of product offerings,
and a much better ability to reach investors and issuers around the
world.”36 The end result was to be a combination of “NYSE’s global
28. A broker is an “agent who handles the public’s orders to buy and sell securities,
commodities, or other property.” Brokers may be employed independently or by a brokerage house. Id. at 8.
29. NYSE Group Inc., Hybrid Market Training Program (Sept. 2006), available at
http://www.nyse.com/pdfs/hm_booklet.pdf. The NYSE Group conducted a survey that
showed that 400 listed-company executives consider trade-execution quality to be the
most important consideration in choosing a listing venue. Id. See also NYSE Guide, supra note 24, at 9.
30. NYSE Euronext Inc., Registration Statement (Form S-4), at 6 (Sept. 21, 2006),
available at http://www.sec.gov/Archives/edgar/data/1368007/000104746906011989/a
2173235zf1_s-4.pdf (last visited Jan. 13, 2008) [hereinafter Form S-4].
31. Only derivatives in the U.K., Press Release, NYSE Group Inc., supra note 3.
32. Id.
33. Id.; see also Euronext, Euronext Activities (on file with author).
34. Euronext, Euronext Activities (on file with author).
35. NYSE Group and Euronext Announce Merger, 13 NYSE GROUP NEWSLETTER 3,
June 2006, available at http://www.nyse.com/about/publication/1145959806931.html
[hereinafter NYSE Group Newsletter].
36. Id. (quoting NYSE Group Inc. Chairman Marshall N. Carter).
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brand and leading cash marketplace with Euronext’s international, crossborder, and diversified product range, technology and integration skills”
to form a winning global platform.37
On September 21, 2006, NYSE Euronext Inc. submitted a form38 to the
United States Securities and Exchange Commission (“SEC”) that laid out
many of the technical details of the merger.39 The SEC declared the form
effective on November 27, 2006.40 As discussed in the form, NYSE Euronext Inc. is a United States holding company that fully owns both the
NYSE and Euronext; however, the NYSE and Euronext remain separate
subsidiaries of NYSE Euronext Inc.41 The merger extends Euronext’s
new technology integration techniques across the Atlantic, and NYSE
Euronext Inc. now operates on a single IT system42 to allow for more
efficient securities trading.
One of the largest concerns voiced about this merger focused on regulatory issues. Although NYSE Euronext Inc. operates on a single IT system, the exchanges operate as separate platforms.43 This means that regulation remains within each jurisdiction: European markets continue to be
regulated by their existing regulators, and the SEC regulates U.S. markets.44 “The structure has been designed to make sure that the [SEC] continues to regulate the U.S. exchanges, and the college of regulators that
currently operates in Europe . . . will continue to regulate those European
exchanges.”45
A large part of this pre-merger regulatory concern was centered on the
application of the Sarbanes-Oxley Act (“Sarbanes-Oxley”) to listed com37. Id. (quoting Euronext N.V. CEO Jean-François Théodore).
38. NYSE Group Inc submitted Form S-4, a registration statement filed with the SEC
to register additional securities for an offering connected with the merger. NYSE Group
filed this form for approval to issue shares of NYSE Euronext to the current shareholders
of NYSE Group Inc. The SEC made the formal approval on Nov. 27, 2007. When the
merger was complete, one share of NYSE Group Inc. was replaced with one share of
NYSE Euronext, and NYSE Group was brought under the new holding company NYSE
Euronext Inc. Euronext N.V. was brought under the holding group through an exchange
offer whereby shares of Euronext N.V. were replaced with shares of NYSE Euronext Inc.
or cash, depending on the election of the shareholder. See generally Form S-4, supra note
30.
39. Form S-4, supra note 30.
40. NYSE Group and Euronext Shareholders to Vote on Merger, 13 NYSE GROUP
NEWSLETTER 7 Dec. 2006, http://www.nyse.com/about/publication/1164799108211.html.
41. Form S-4, supra note 30.
42. NYSE Group Newsletter, supra note 35.
43. Id.
44. Id.
45. Kip Betz, “No Regulatory ‘Leakage’ Created by NYSE-Euronext Deal, Thain
Says,” 38 SECURITIES REGULATIONS & LAW (BNA) 1110, June 26, 2006.
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ARE SECURITIES REGULATORS PREPARED . . . ?
691
panies.46 The concern is that if Euronext were considered an exchange
operated in the United States, all companies listed on Euronext would
become subject to Sarbanes-Oxley and companies would incur significantly higher costs in order to comply with Sarbanes-Oxley. 47 Nevertheless, Securities and Exchange Commissioner Annette Nazareth declared
prior to the merger that because the exchanges would remain separate
platforms, U.S. regulation would not reach companies that remain not
listed on the U.S. platform, and specifically announced that “SarbanesOxley would not apply to any market not registered in the U.S., nor
would it apply to companies listed on that non-U.S. market.”48 Expecting
the success of the merger, a professor of securities law at the Fordham
School of Law in New York was of the opinion that the proposed merger
would not create a regulatory problem.49 In the words of House Financial
Services Chairman Michael Oxley (R-Ohio), “It’s important to note that
the merger will not undermine Sarbanes-Oxley protections for investors
in U.S.-listed firms, and those protections will remain the same.”50 European Union Internal Market Commissioner Charlie McCreevy also declared that “consolidation of exchanges should not lead to regulatory
spill-over.”51
On the other hand, there was significant resistance to the NYSE Euronext merger, most of which was from the European Union and especially from European politicians.52 Even Commissioner McCreevy, who
46. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified as
amended in scattered sections of 15 U.S.C. See infra text accompanying notes 113–132.
47. The Sarbanes-Oxley Act of 2002 was the United States’ legislative reaction to
corporate scandals of the 1990s and was meant to heighten regulatory standards over
corporate governance, accounting, and disclosure. Sarbanes-Oxley’s main focus was to
increase disclosure by regulated companies to increase investor confidence and thereby
increase the strength of the United States financial markets. After Sarbanes-Oxley was
enacted, compliance was gradually implemented according to compliance dates imposed
by the SEC. See generally Irwin H. Steinhorn & William M. Lewis, Corporate Compliance Under the Regulations Implementing Sarbanes-Oxley, 60 CONSUMER FIN. L.Q. REP.
30 (Spring, 2006).
48. Annette L. Nazareth, U.S. Securities Exchange Commissioner, Remarks Before
the NYSE Regulation Second Annual Securities Conference (June 20, 2006).
49. Kip Betz & Rachel McTague, NYSE, Euronext $20B Merger Plan Would Create
World’s Largest Exchange, 38 SECURITIES REGULATIONS & LAW (BNA) 962, June 5,
2006.
50. Id.
51. Arthur Rogers, EU Official Will Not ‘Stand in Way’ of Merger Between NYSE,
Euornext, 38 SECURITIES REGULATIONS & LAW (BNA) 1190, July 10, 2006.
52. Donna Block, SEC Calms Europe on Sarbanes-Oxley, THE DAILY DEAL, June 6,
2006 (“Objections have been mounting from European politicians to the NYSE Group
Inc.’s $10 billion agreed takeover of pan-European bourse Euronext NV.”).
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announced he would not “stand in the way” of the merger, conditioned
his statement on regulatory aspects of the merger being properly dealt
with.53 Moreover, leaders of both France and Germany opposed this
merger.54 At a summit meeting in Paris on October 12, 2006, both French
President Jacques Chirac and German Chancellor Angela Merkel recognized the ongoing market consolidation battle, but they called for a
“European solution” not including a United States based stock exchange
such as the New York Stock Exchange.55
Evidencing such resistance, a working group of Paris Europlace56 published a report assessing the proposed merger between NYSE and Euronext in October 2006.57 This report concluded that the merger “gives control to NYSE with no long-term assurance of the continued development
of the European side of operations in the interest of users.”58 The group
concluded that it would not be the merger of equals as was publicized,
but would instead simply give the NYSE control of Euronext because,
among many other proffered reasons, eleven out of twenty directors of
the new company would be Americans and both the CEO and CFO
would come from NYSE.59 Serving as evidence of the European fears
and reservations to the United States securities regulatory regime, the
report called for an “unqualified assurance” that the risk of U.S. regulatory spill-over into Europe was under control, and deemed such assurance “vitally important” to all Euronext participants.60
B. Cross-Border Exchanges
Despite the resistance, legally required regulatory clearances were all
obtained61 and, on April 4, 2007, NYSE Euronext Inc. began trading
53. Rogers, supra note 51, at 1190.
54. Lawrence J. Speer, French, German Leaders Join Lobby Opposing Merger of
Euronext with NYSE, 38 SECURITIES REGULATION & LAW (BNA) 1720, Oct. 16, 2006.
55. Id.
56. Paris Europlace is “the organization which promotes Paris as a financial market.”
Its purpose is to bring together the major “players in the financial industry,” and it conducts international promotion, reform programs, and lobbying functions. See Paris Europlace, Paris EUROPLACE, Your Hub to Euroland, http://www.paris-europlace.net/ (last
visited Jan. 14, 2008).
57. Lachmann Report, supra note 14.
58. Id.
59. Id.
60. Id.
61. Approval from the Autorité des Marchés Financiers (France) was obtained on
January 19, 2007. Press Release, NYSE Euronext Inc., Combined Offer (Jan. 19, 2007),
available at http://www.euronext.com/fic/000/019/025/190252.pdf. The Dutch Ministry
of Finance issued a declaration conferring formal approval of the merger on February 2,
2008]
ARE SECURITIES REGULATORS PREPARED . . . ?
693
shares. Given the success of the merger between NYSE and Euronext,
there is reason to expect stock exchanges will continue to move towards
worldwide consolidation.62 A stock exchange is itself a business enterprise.63 Like any other business company, stock exchange management
will focus on cutting expenses and increasing income.64 This focus has
become increasingly important due to “the recent trend of demutualization.”65 Demutualization refers to changes in the ownership structure of
stock exchanges whereby exchanges organized as not-for-profit entities
owned by members convert to publicly-owned organizations, usually forprofit corporations.66 This trend has been heavily influenced and driven
2007. Press Release, NYSE Group Inc., Euronext and NYSE Group Welcome Dutch
Ministry of Finance Declaration (Feb. 2, 2007), available at http://www.euronext.
com/fic/000/014/938/149385.pdf. The SEC approved the merger on February 14, 2007.
The Monitor, 26 NO. 4 BANKING & FIN. SERVICES POL’Y REP. 21, 21 (Apr. 2007). Although not legally required for the merger to proceed, the SEC and the College of Euronext Regulators (the Authority for the Financial Markets (Netherlands), Autorité des
Marchés Financiers (France), Banking Finance and Insurance Commission (Belgium),
Comissão do Mercado de Calores Mobiliários (Portugal), and Financial Services Authority (United Kingdom)) signed a Memorandum of Understanding for cooperation in market oversight on January 25, 2007. Memorandum of Understanding Concerning Consultation, Cooperation and the Exchange of Information Related to Market Oversight (Jan. 25,
2007), available at http://www.sec.com/news/press/2007/2007-8_mou.pdf.
62. “[T]he difficulties inherent in coordinating different national rules and regulatory
systems will not stand in the way of the creation of a world stock market.” Poser, supra
note 8, at 540.
63. By fulfilling the functions of market organization, information distribution, market regulation, and setting standards, stock exchanges are business enterprises. As market
organizers, stock exchanges have been working towards making trading floors obsolete
and have been integrating the use of technology in place of traditional human traders.
Technology has also promoted exchanges’ role as information distributors, which has
become increasingly important for trades to happen more efficiently. Stock exchanges
also regulate the markets that they operate and organize through rules for listed companies, as well as all other market participants. These rules foster investor confidence and
provide fair trading and accurate price discovery. Through the rules, employed by both
the NYSE and Euronext, stock exchanges have become corporate governance standards
setters. Each one of these four roles will undoubtedly be performed more efficiently
through consolidation of exchanges. See generally Andreas M. Fleckner, Stock Exchanges at the Crossroads, 74 FORDHAM L. REV. 2541, 2545–2550 (2006).
64. Id. at 2549; see also International Organization of Securities Commissioners
[IOSCO], Technical Committee, Discussion Paper on Stock Exchange Demutualization
(Dec. 2000), available at http://www.iosco.org/library/pubdocs/pdf/IOSCOPD112.pdf
[hereinafter IOSCO Technical Committee Paper].
65. Fleckner, supra note 63, at 2551.
66. Id. at 2554–2555.
Historically, most exchanges were not-for-profit organizations owned by their
members. Over the past few years, there has been a trend among exchanges to
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by recent changes in technology and increased competition between
stock exchanges.67
NYSE Euronext Inc. is one of such demutualized and publicly held
corporations listed on both the New York and Paris exchange platforms.68 Demutualization brings with it a different corporate governance
structure where shareholder interests are likely to dominate over the constituent groups who used to be in a position to exercise veto powers
when the exchanges were operated as not-for-profit, member-owned corporations.69 Because shareholders consistently try to maximize profits
and the value of their investment, they support innovation in general and
look favorably on acquisition and merger proposals.70 It has been said, in
light of demutualization, that “the rate of merger and acquisition activity
seems likely to grow” since the dominant consideration of stock exchanges is now profitability.71 Consequently, the number of stock exchanges operating around the world is likely to shrink radically from the
150 of today.72
“[T]he stock exchanges of the United States and Europe seem to be on
a course of consolidation, largely driven by the need of the large firms
consider alternative governance structures to these traditional mutual or cooperative models. The transformation of an exchange into a for-profit shareholder-owned company is referred to as ‘demutualization.’ In most cases, the
demutualized exchange becomes a for-profit enterprise.
IOSCO Technical Committee Paper, supra note 64, at 1. Internationally, demutualization
began with the Stockholmsbörsen (Stockholm Stock Exchange) in 1993. Euronext demutualized 1997 and listed publicly in 2001. Between 1998 and 2001, the Australian Stock
Exchange, Deutsche Börse, and the London Stock Exchange all underwent demutualization and listed publicly. It was almost ten years before the United States stock exchanges
followed suit, but most of the prominent United States exchanges have been demutualized, and many are publicly held. The Nasdaq Stock Market demutualized and publicly
listed in 2002. The Pacific Exchange and the Philadelphia Stock Exchange demutualized
in 2004. The Chicago Stock Exchange followed in 2005. The Pacific Exchange is a public company, but the Philadelphia Stock Exchange and the Chicago Stock Exchange are
not publicly traded. The NYSE demutualized in 2006 and is publicly traded. See generally Fleckner, supra note 63, at 2555–2562; see also Coffee, supra note 12, at 1800.
67. IOSCO Technical Committee Paper, supra note 64, at 2.
68. NYSE Group Newsletter, supra note 35.
69. Coffee, supra note 12, at 1801. This takes away from members of the stock exchange the control of decisions concerning the range of services to be offered by the exchange, as well as price and quality. Roberta S. Karmel, The Future of Corporate Governance Listing Requirements, 54 SMU L. REV. 325, 347–348 (2001).
70. Coffee, supra note 12.
71. Id.
72. For the estimate of 150 stock exchanges operating worldwide, see Craig Karmin
et al., Vision Test: Nasdaq’s Drive to Build Global Exchange Hits Some Major Potholes,
WALL ST. J., June 25, 2001, at A1; see also Coffee, supra note 12, at 1759.
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and institutions that control order flow to reduce transaction costs.”73
Additionally, driven by the desire to maximize profits, stock exchanges
will move towards consolidation in order to obtain a greater market
share.74 It has been argued that stock exchanges are a form of natural
monopoly and that major markets will have the effect of draining smaller
markets, and, in the absence of agreements between exchanges to form
an alliance, the end result will be “winner-takes-all,” leaving only a few
large stock exchanges in the major financial centers of the world.75
In fact, such radical shrinking in the number of stock exchanges has
happened before when over 100 U.S. securities exchanges either consolidated or shut down in the early twentieth century.76 During the nineteenth century, stock exchanges in the United States were sheltered from
competition from other stock exchanges through geographic and communication barriers.77 However, as technological innovations such as the
telegraph, the telephone, and the stock ticker reduced the cost of barriers,
more efficient national exchanges began to eliminate the local exchanges.78 As stock exchanges were more easily able to compete with
one another, they attempted to consolidate in order to obtain a greater
market share, enabling larger exchanges to compete more effectively.79
Today the same evolution of stock exchanges and break down of cost
barriers can be identified on an international scale. What used to be high
cost barriers to communications and geography between international
countries are being reshaped by developments in technology.80 Globalization has increased the ease with which both information and capital
flow from one country to another, and securities markets are now able to
compete worldwide.81 This process, which began in 2000 through the
73. Poser, supra note 8, at 539.
74. Coffee, supra note 12, at 1760.
75. See id. at 1760 n.6 (citing Carmine Di Noia, Competition and Integration Among
Stock Exchanges in Europe: Network Effect, Implicit Mergers and Remote Access, 7 EUR.
FIN. MGMT. 39, 42 (2001)).
76. Id. at 1759. There were nearly 250 stock exchanges operating in the United States
during the nineteenth century and only slightly over 100 operating by the beginning of
the twentieth century. Id. at 1759 n.2.
77. Id. at 1759 n.2 (citing R.C. MICHIE, THE LONDON AND NEW YORK STOCK
EXCHANGES: 1850–1914, 167 (1987)). These barriers included the high costs of both long
distance communication and the deliverance of stock certificates once a purchase was
completed. Id.
78. Id.
79. Id. at 1760.
80. Id. at 1759.
81. Id. at 1760.
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creation of Euronext, the first cross-border exchange,82 has become more
relevant through the creation of NYSE Euronext Inc., and will continue
into the future.
The traditional stock exchange follows the auction model of the NYSE
before the integration of their hybrid market. Stock exchanges were operated on a trading floor where individual broker-members of the stock
exchange brought offers to buy and sell to one floor where they would
attempt, directly competing in person through an “open-outcry,” to get
the best price for the trade.83 In recent years, markets, especially in Europe, have begun to employ an electronic trading system that no longer
requires persons to gather in one place.84 As a result of the development
of technology, people can sit behind a desk anywhere in the world and
conduct trades by a simple push of the button.85 The combination of the
ease with which trades can be conducted across national borders and the
public-owner’s desire to maximize profits through obtaining a greater
market share for the exchange will not be the sole reason for consolidation. However, the “increasing demand for round-the-clock intercontinental trading”86 will serve as a driving force for stock market consolidation across national borders.87
Numerous supervisory authorities, including Securities and Exchange
Commissioners in the United States and their European counterparts,
exchange platform Chairmen and CEOs, and academic scholars, have
82. Euronext N.V. emerged from a merger in 2000 of the Paris, Amsterdam, and
Brussels Exchanges. NYSE Euronext, History, http://www.euronext.com/editorial/wide/
editorial-1994-EN.html (last visited Jan. 14, 2008).
83. NYSE Guide, supra note 24, at 5.
84. “European exchanges no longer look anything like traditional stock exchanges.”
Poser, supra note 8, at 501.
85. Id.
86. Euronext NV Shareholders Vote to Approve Planned NYSE Merger, Big Board’s
Owners Expected to Give OK. CHI. TRIB. Dec. 20, 2006, at 4 [hereinafter Euronext NV
Shareholders].
87. Lewis D. Solomon & Louise Corso, The Impact of Technology on the Trading of
Securities: The Emerging Global Market and the Implications for Regulation, 24 J.
MARSHALL L. REV. 299, 299 (1991).
Technology has made it possible for information regarding stock prices to be
sent all over the world in seconds. Presently, computers route orders and execute small trades directly from the brokerage firm’s terminal to the exchange.
Computers now link together various stock exchanges, a practice which is helping to create a single global market for the trading of securities. The continuing
improvements in technology will make it possible to execute trades globally by
electronic trading systems.
Id.
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recognized the future globalization of stock exchanges and acknowledged the difficulties in harmonization of regulations.88 Global expansion
is not limited to the single merger creating NYSE Euronext Inc. For example, before the merger with NYSE, Euronext had already put significant effort into cross-border exchanges culminating in harmonized IT
platforms shared by all its markets in 2004.89 Moreover, Nasdaq has acquired over twenty-five percent of the London Stock Exchange.90 In light
of these recent trends towards globalization, authorities realize it is time
to work towards more cooperation between regulators and greater convergence of regulations across jurisdictions in order to achieve consistent
international standards to govern such international entities. The National
Association of Securities Dealers Chairman and Chief Executive Officer
Robert Glauber has recognized that regulating future trades will be challenging because it will be “unclear now what home-country regulator
will be responsible for them.”91
The ultimate purpose of the creation of NYSE Euronext Inc. is to produce a fully integrated trading platform, 92 and the company has organized what appears to be a sensible solution to regulation conflicts by
maintaining separate exchange platforms. However, now that the electronic trading system of NYSE Euronext Inc. has been implemented, participants of the stock exchange could hypothetically sit behind a computer in any part of the world and trade on either of the technically separate platforms. In the words of Robert Glauber, “NYSE-Euronext will
inevitably migrate toward a more completely computerized trading platform. . . . When this happens, trades won’t take place in New York, London, or Paris, they’ll take place on a satellite over the Atlantic Ocean.
What . . . regulator will [be] responsible for those trades?”93
88. See, e.g., ABA Report, supra note 11; Coffee, supra note 12; Poser, supra note 8;
Nazareth, supra note 48; Glauber, infra note 92; IOSCO Principles, infra note 216;
OECD, infra note 206.
89. Press Release, NYSE Group Inc., supra note 3.
90. Euronext NV Shareholders, supra note 86, at 4.
91. Rachel McTague, In Face of Market Globalization, Glauber Raises Question of
Regulatory Cooperation, 38 SECURITIES REGULATION & LAW (BNA) 1111, June 26,
2006.
92. Robert Glauber, Chairman and CEO, National Association of Securities Dealers,
Luncheon Address at the Harvard Business School Global Leadership Forum (June 21,
2006), available at http://www.nasd.com/PressRoom/SpeechesTestimony/RobertR.
Glauber/NASDW_016838.
93. Id.
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II. SELF-REGULATION
One possible answer to this question is to allow the stock exchanges
themselves to be the primary regulators through their own rules and
regulations, or self-regulation. Self-regulation has been defined as “[a]n
organization’s or industry’s control, oversight, or direction of itself according to rules and standards that it establishes.”94 Such regulation has
proven rather effective. Before an issuer may list on either the New York
Stock Exchange or any of the Euronext platforms, they enter into a contractual listing agreement with the stock exchange and are bound to meet
certain requirements under the contract.95
A. Historical Success of Self-Regulatory Organizations
Early in the history of NYSE listing requirements, the NYSE was simply concerned with financial disclosure for listed companies.96 Today,
however, the listing requirements include “independent audit committees, ownership interests of corporate directors and officers, shareholders’ voting rights, shareholders’ ownership interests and the maintenance
of fair and orderly markets in listed securities.”97 The listing requirements developed pursuant to the NYSE goal of ensuring integrity of the
securities markets.98 They are designed to increase investor confidence
by promoting liquidity and transferability of shares.99 Such listing requirements have proven to be effective in monitoring corporate issuers
notwithstanding governmental regulations, at least in the United
States.100 Historically in the United States, listing standards could be considered a “substitute for government regulation.”101
94. BLACK’S LAW DICTIONARY 1391 (8th ed. 2004).
95. This section focuses on the overall effectiveness of the enforcement of regulations
in stock exchanges through the self-regulatory organization and not the specific regulations themselves. Therefore, the listing requirements of Euronext N.V. will not be discussed. While the listing requirements for NYSE and Euronext are similar, it should be
noted that Euronext stock exchanges and the NYSE do not impose the exact same requirements on listed companies. One notable difference is that NYSE traditionally imposes higher transparency requirements on listed companies than Euronext imposes on its
listed companies. Coffee, supra note 12, at 1830.
96. See generally Karmel, Listing Requirements, supra note 69, at 328.
97. Id. at 329 (citing NYSE Listed Company Manual (1999), available at http://www.
nyse.com/listed/listed.html).
98. Id. at 329.
99. ABA Report, supra note 11, at 1497.
100. See Business Roundtable v. SEC, 905 F.2d 406 (D.C. Cir. 1990). This case foreclosed the possibility that the SEC could impose listing standards governing voting rights
of shareholders. The stock exchange itself, however, could impose such rights. Therefore,
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The NYSE, through NYSE Regulation Inc.,102 imposes high corporate
governance standards on listed companies and has the ability to reach
beyond the federal regulations.103 Listing standards were originally enacted by the NYSE in order to create “a brand name associated with high
quality.”104 Current listing requirements of the NYSE include independent audit committee requirements.105 Also, each share from an issuer is
only entitled to one vote, no more and no less.106 Shareholders must approve any issuance of more than twenty percent of outstanding common
stock or voting power.107 Failure to comply with these requirements
could result in delisting of the issuer from the exchange.108 Each one of
these rules goes beyond federal regulation and supersedes the authority
of the SEC to further ensure investor confidence. Additionally, there are
a number of requirements, such as shareholder approval, that also go beyond state law corporate governance laws.109
Because of such effectiveness, scholars have argued that stock exchange self-regulation will be sufficient in an international setting.110
Some base this argument on a market-based theory of regulating stock
exchanges and corporate fraud,111 and such arguments include basic
competition principles. Private investors will feel more secure investing
in companies that are held to higher standards; therefore, the exchanges
have incentive to require issuers to meet such standards.112
the stock exchanges have a longer reach than the SEC in the creation and enforcement of
corporate governance standards.
101. “The NYSE argued that if its listing standards for securities offered for sale adequately protected the investing public, then government regulation would be unnecessary.” Karmel, Listing Requirements, supra note 69, at 327.
102. A wholly owned subsidiary of NYSE Group Inc., NYSE Regulation Inc. is an
independent, not-for-profit subsidiary that enforces marketplace rules as well as federal
securities laws against participants of the NYSE. NYSE Guide, supra note 24, at 11.
103. See Business Roundtable, 905 F.2d 406.
104. ABA Report, supra note 11, at 1497.
105. Id. at 1511.
106. Id. at 1499.
107. Id. at 1511.
108. Id. at 1515.
109. Id. at 1513–1514.
110. See, e.g., Larry E. Ribstein, Market vs. Regulatory Responses to Corporate
Fraud: A Critique of the Sarbanes-Oxley Act of 2002, 28 J. CORP. L. 1 (2002); Poser,
supra note 8.
111. See, e.g., Ribstein, supra note 110.
112. See generally id.
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B. Problems with Self-Regulation
On the other hand, with the recent demutualization of stock exchanges,
self-regulation has become increasingly problematic.113 Foremost, regulation imposed by a publicly-listed company listed alongside the companies to which the regulation applies creates numerous conflicts of interest.114 “A business corporation is organized and carried on primarily for
the profit of the stockholders. The powers of the directors are to be employed for that end.”115 The stockholders will demand high prices in order to maximize profit.116 However, for the stock exchange to remain an
effective self-regulatory body, it will also have to take into account the
interests of the customers who are listed on the exchange.117 Such customers will demand low prices, and stock exchanges will be pressured to
please both groups. This creates an inherent conflict of interest that did
not exist before demutualization of stock exchanges, i.e., when the customers were the owners of the stock exchanges.118
The recent demutualization has created incentives for both overregulation and under- regulation by stock exchanges.119 The main incentive for under-regulation arises from the desire to maximize profits.120 As
with every business function, self-regulation will cause the stock exchange to incur expense and since the stock exchange is a business enterprise,121 it will weigh these expenses against the direct income from
regulation.122 Since little income123 is generated by increased regulation,
113. “[D]emutualization by the self-regulated markets could exacerbate concerns about
the ability or willingness of self-regulated markets to continue to develop and maintain
high listing standards.” ABA Report, supra note 11, at 1540; see generally Karmel, Listing Requirements, supra note 69, at 348.
114. Fleckner, supra note 63, at 2590; IOSCO Technical Committee Paper, supra note
64.
115. Dodge v. Ford Motor Co., 170 N.W. 668, 684 (Mich. Sup. Ct. 1919).
116. Fleckner, supra note 63, at 2591.
117. See generally id.
118. Id. at 2591.
As competition increases and exchanges move from mutual or cooperative entities to for-profit enterprises, new elements enter into the environment. The interests of the owners of the exchange may diverge from those of the principal
customers of its trading services. The commercial nature of the exchange becomes more evident: maximizing profits becomes an explicit objective.
IOSCO Technical Committee Paper, supra note 64, at 2–3.
119. See generally Fleckner, supra note 63, at 2593–2595.
120. Id. at 2593.
121. See supra text accompanying notes 61–93.
122. Fleckner, supra note 63, at 2593.
123. And possibly no income.
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publicly traded stock exchanges have little incentive to regulate.124
Moreover, the desire to attract new customers who wish to list on the
exchange, thereby increasing profits, could actually lead to decreased
regulation.125 Aside from reducing the regulation imposed on customers,
publicly held stock exchanges may also have an incentive to not enforce
existing regulations. For example, a publicly held stock exchange that is
listed on its own platform may choose not to enforce any regulation with
which it is not itself in full compliance.126
The desire to maximize profits may also create incentives to overregulate.127 Stock exchanges may collect fines and other kinds of payments from companies listed on the exchange for violations of imposed
regulation.128 However, there is no guarantee that listed companies will
in fact violate even the strictest of regulations.129 Over-regulation is not a
sure source of profit for the stock exchange itself, so the main concern
created by demutualization of stock exchanges is under-regulation.130
Under-regulation creates a grave concern for the vitality of the markets. Securities regulation is essential to maintaining confidence in stock
exchanges and financial markets in general.131 Because of the conflicts of
interest created by demutualization, the publicly-held for-profit stock
exchanges are not in the best position to ensure effective securities regulation and investor confidence. Because the “law matters” and the
strength of legal protection will determine companies’ access to external
finance, the transnational stock exchanges will need outside regulation
and guidance to insure the integrity of the listing requirements.132
124. Id.
125. IOSCO Technical Committee Paper, supra note 64; Fleckner, supra note 63, at
2594.
126. Fleckner, supra note 63, at 2594.
127. Id.
128. Id. at 2594–2595.
129. Id.
130. Id.
131. See generally Groshen and Parchomovsky, supra note 10.
132. Coffee, supra note 12, at 1829. The more confidence investors have in the market
and in the exchange, the more likely they are to provide capital to invest in the companies. See generally id.; ABA Report, supra note 11. This Note does not suggest that listing requirements should be ignored. Listing requirements remain an essential part of
securities regulation. However, now that stock exchanges are publicly owned and forprofit, there is a need for an independent body that can supervise self-regulation rules and
regulations.
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III. EXISTING REGULATION: DIFFERENCES AND COOPERATION
NYSE Euronext Inc. operates in both the European Union and the
United States. Since the exchanges themselves cannot be relied on to be
the main securities regulators, either governmental regulation system
could, hypothetically, take the lead role in regulating NYSE Euronext
Inc. One could argue that the United States should take the regulatory
role because the company will be incorporated in the United States.133 On
the other hand, perhaps regulation should be left to the European Union
since that is where all but one exchange, the NYSE, are located. However, neither seems likely since neither jurisdiction will want to hand its
regulatory powers over to the other.134 Therefore, the European Union
and the United States could work together and regulate the exchange in
harmony.
On January 25, 2007, the SEC and the College of Euronext Regulators135 signed a Memorandum of Understanding (“MOU”) “in order to
facilitate cooperation in market oversight” in relation to the creation of
NYSE Euronext Inc.136 While the regulators agree to “consult, cooperate
and exchange information in connection with oversight of NYSE Euronext,” the “MOU does not create any legally binding obligations” on the
parties.137 The MOU is a large step towards achieving convergence of
regulations, but the MOU is more focused on “ongoing, informal, oral
consultations [and] periodic meetings” and explicitly states that the authorities involved stress the “importance of local regulation of local markets.”138 Such cooperation is a necessary step in facilitating the inevitable
consolidation of exchanges across national borders, but, because of fundamental regulatory differences discussed below, there remain several
barriers to overcome if stock exchanges truly begin to function on a
transnational basis. In the face of continued stock exchange consolidation, which increases the need for a single regulatory structure across
133. See Form S-4, supra note 30.
134. Regulatory systems are reluctant to relinquish any part of their sovereignty. See
Poser, supra note 8, at 540.
135. The College of Euronext Regulators are the Authority for the Financial Markets
(Netherlands), Autorité des Marchés Financiers (France), Banking Finance and Insurance
Commission (Belgium), Comissão do Mercado de Calores Mobiliários (Portugal) and
Financial Services Authority (United Kingdom). Memorandum of Understanding Concerning Consultation, Cooperation and the Exchange of Information Related to Market
Oversight (Jan. 25, 2007), available at http://www.sec.com/news/press/2007/20078_mou.pdf (last visited Jan. 11, 2008).
136. Id.
137. Id. at 3.
138. Id. at 3, 5.
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nations, full convergence in regulating stock exchanges may not occur, at
least in present day.
A. United States and European Union Systems
Historically, the United States and the European Union139 come from
two distinguished capital systems: a market-oriented model system and a
bank-oriented model system.140 The U.S. system has followed the market-oriented model whereby corporations collect capital directly from the
public.141 The ownership structure is characterized by high fragmentation
where one single owner can rarely independently affect the management
of the corporation.142 European corporations, in contrast, follow the
bank-oriented model and collect capital primarily through banks.143 Most
often the result is that a single bank will finance the majority of the firm,
offer a very wide range of services to corporations, and create the presence of major shareholders in the ownership structure of the firms from
the outset.144 The U.S. separation of banks from the securities business is
due in part to the Glass-Steagall Act of 1933, which prohibited commercial banks from holding shares of industrial companies.145 In Europe, the
separation of banks from the securities business did not occur.146 Corporate governance for companies listed on the NYSE is geared towards the
protection of the individual investor, who needs more protection. Euronext listed company regulations are more relaxed because they are aimed
at the more sophisticated institutional investor who is better able to protect itself.
The different investment systems and focus of regulations are evident
through disparate securities laws such as Regulation NMS147 in the United States and the Markets in Financial Instruments Directive148 (“Mi139. Mainly Germany, France, and Italy. Gustavo Visentini, Compatibility and Competition Between European and American Corporate Governance: Which Model of Capitalism?, 23 BROOK. J. INT’L L. 833, 838 (1998). Because Euronext’s headquarters is located in France, the merger with the NYSE poses the problem of harmonization between
the United States and France. Therefore, much of this part of the analysis will focus on
France.
140. Id. at 838–839.
141. Id. at 838.
142. Id. at 839.
143. Id. at 838–839.
144. Id. at 839.
145. Id. at 838.
146. Id.
147. Regulation NMS, 17 C.F.R. § 242.660 (2005).
148. Council Directive 2004/39, 2004 O.J. (L 145) 1-44 (EC) amended by Council
Directive 2006/31/EC, 2006 O.J. (L 114) 60-63 [hereinafter MiFID].
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FID”) in the European Union. Regulation NMS and MiFID are both
aimed at reconciling competition between markets but “they are not necessarily compatible.”149 For example, one of the four rules150 promulgated by Regulation NMS is an order protection rule against tradethroughs151 for all national market system securities.152 A trade-through
occurs when one trading center executes an order “at a price that is inferior to the price of a protected quotation, often representing an investor
limit order, displayed by another trade center.”153 One of the SEC’s justifications for the order protection rule was that it “will promote intermarket competition by leveling the playing field between automated and
non-automated markets and, to the extent that the existing trade-through
rule serves to constrain competition, by removing this barrier to competition.”154 This rule serves to eliminate any potential advantage that manual markets had over automated systems.155
In contrast, MiFID permits investment firms that frequently and systematically deal on their own accounts by executing orders outside a
regulated market to make information available to only specific categories of clients.156 These investment firms can make quotes available
“only to retail clients, only to professional clients, or both.”157 Although
MiFID emphasizes fair competition among markets and market participants, it only suggests the removal of obstacles that could prevent fair
competition and it allows electronic communications networks to deal
with institutional investors outside of MiFID.158 This is unlike Regulation
NMS which has caused electronic communications networks to consolidate and always operate within Regulation NMS, thereby “leveling the
149. Roberta Karmel, The Once and Future New York Stock Exchange: The Regulation
of Global Exchanges, 1 BROOK. J. CORP. FIN. & COM. L. 355, 371 (2007).
150. Id. at 372.
151. Id. The trade-through rules establish “intermarket protection against tradethroughs.” Id.
152. National market system securities were redefined by Regulation NMS to mean
“any security or class of securities for which transaction reports are collected, processed,
and made available pursuant to an effective transaction reporting plan, or an effective
national market system plan for reporting transactions in listed options.” Regulation
NMS, 17 C.F.R. § 242.600(b)(46) (2005).
153. Id.
154. Regulation NMS, 70 Fed. Reg. 37,496, 37,594 (June 29, 2005)(to be codified at
17 C.F.R. pt. 200, 201, 230, 240, 242, 249, and 270).
155. Karmel, The Once and Future New York Stock Exchange, supra note 149, at 372.
156. Id. at 376.
157. Id.
158. Id. at 378.
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playing field.”159 One explanation for this disparity is because the United
States comes from a market-oriented model system of regulation while
the European Union comes from a bank-oriented model system.
Another notable difference between U.S. and E.U. securities law
caused by the different market structure is that the United States provides
for private enforcement by individuals alongside criminal actions by the
state, but the private remedy is not always available in Europe.160 Most of
the securities law governing member states of the European Union is
provided through directives proposed by the European Commission,
which, if enacted by the Council, become part of Community law.161 Directives impose binding guidelines on member states, and failure to propose legislation within these guidelines could lead to action against the
state by the Commission.162 Individual rights to bring an action for a violation of securities law, such as those found in the United States, are not
typically found in directives.163
Currently, the United States is a two-tiered system of securities regulation, and market participants have to comply with both federal and state
laws.164 The SEC, empowered by the Securities Exchange Act of 1934,
has broad authority over the securities industry in the United States, including the power to regulate and register the various stock exchanges
and participants of the exchanges.165 Although the SEC remains limited
in what rules and regulations it can create and enforce, the agency exerts
direct power and binding authority over the securities markets.166
E.U. securities law is less centralized, at least in part because the directives simply establish goals and guidelines but leave it up to the member
states to decide how to implement and enforce such goals.167 This structure has been a significant barrier to achieving a truly uniform E.U. secu159. Regulation NMS, supra note 154; see also Karmel, The Once and Future New
York Stock Exchange, supra note 149, at 378.
160. Eric Engle, The EU Means Business: A Survey of Legal Challenges and Opportunities in the New Europe, 4 DEPAUL BUS. & COM. L. J. 351, 379 (2006).
161. Treaty Establishing the European Community, art. 57(2), Oct. 2, 1997, 37 I.L.M.
56 (1998).
162. Engle, supra note 160, at 359.
163. Although there are some Directives that give an individual the right to enforce.
See id.
164. Whitney Debevoise & Penny Somer-Greig, Securities Law In the Untied States,
in INTERNATIONAL SECURITIES LAW HANDBOOK 503, 504 (Klumer Law International 2d
ed. 2005).
165. JAMES D. COX, ROBERT W. HILLMAN & DONALD C. LANGEVOORT, SECURITIES
REGULATION 5–8 (Aspen Publishers, 5th ed. 2006).
166. Poser, supra note 8, at 532.
167. Engle, supra note 160, at 357, 379.
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rities law.168 In some ways, it appears to be a two-tiered system because
the European Community does in fact issue binding directives on the
member states, but, unlike the SEC which has been granted direct powers
to regulate, the “implementation and enforcement of securities law in the
E.U. is found in the national law of the member states.”169 The European
Union does retain some control over securities law because each member
state is subject to obligations under European Union and European
Community treaties.170 However, because the decision of how to enforce
these directives is left to the member states, the “starting point” for
European securities law is found in each nation state’s securities laws
and not those of the European Union.171 In contrast, U.S. securities law is
basically federal and is simply supplemented by state laws.172
Such fundamental differences pose practical problems in enacting converging laws and regulations. Even if the European Commission were to
comply entirely with the United States regulations, the E.U. member
states retain a certain amount of implementation and enforcement powers. Therefore, there is no guarantee that each state would implement
directives in the same manner. Furthermore, the United States system is
concerned with the individual investor, but the European system is concerned with the large institutional investor.
B. Europe and the Sarbanes-Oxley Act
One of the largest concerns for NYSE Euronext Inc. is that “[f]oreign
companies do not . . . generally wish to become subject to regulation by
the Securities and Exchange Commission . . . and . . . have been clamor168. See generally id. The European Union has, as of yet, been unable to form a single
securities law governing all member states. Some have suggested a European Securities
and Exchange Commission similar to that of the United States. Id. See also Roberta S.
Karmel, The Case for a European Securities Commission, 38 COLUM. J. TRANSNAT’L L. 9
(1999). However, this idea has not been fully developed into a reality.
169. “In Europe, the national law of the stock exchange governs securities trading
activities on a stock exchange. As a preliminary matter, it is the law of the stock exchange that ‘will decide whether the financial instrument in question is a security and is
therefore qualified to be listed.’” Alexander B. St. John, The Regulation of Cross-Border
Public Offerings of Securities in the European Union: Present and Future, 29 DENV. J.
INT’L L. & POL’Y 239, 244–245 (2001) (quoting Gerhard Wegen & Christian Lidenmann,
The Law Applicable to Public Offerings in Continental Europe, in THE LAW OF CROSSBORDER SECURITIES TRANSACTIONS 153, 156 (Hans Van Houte ed. 1999)); see also Engle, supra note 160, at 358, 379.
170. For example, despite the fact that the laws of each nation state decides whether a
financial instrument is a security, a security is now substantively defined through directives of the European Commission. Engle, supra note 160, at 358.
171. Id. at 379.
172. Id.
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ing to exit from the U.S. disclosure system.”173 Moreover, the NYSE has
been losing listings, especially initial public offerings, to foreign exchanges.174 In the words of Securities and Exchange Commissioner Paul
S. Atkins, “According to the Wall Street Journal, in the year 2000 nine
out of every ten dollars raised by foreign companies through new stock
listings were done in New York, but by 2005 the numbers had reversed
so that nine out of every 10 dollars were raised outside of America.”175
In the wake of corporate scandals of the 1990s,176 the U.S. Congress
amended the laws governing corporate governance and disclosure
through the implementation of Sarbanes-Oxley.177 Sarbanes-Oxley focuses mainly on heightening disclosure by regulated companies to increase investor confidence.178 Among many other things, Sarbanes-Oxley
increases regulation over auditing committees, calls for the independence
of such committees, requires companies to adopt and disclose a code of
ethics, and calls for greater transparency and heightened disclosure.179
On December 20, 2002, shortly after Sarbanes-Oxley was enacted, David Devlin, the President of the Fédération des Experts Comptables Européens (European Federation of Accountants), addressed a letter to Jonathan G. Katz, Secretary of the U.S. SEC.180 Devlin stated that the European Federation of Accountants supports the provisions of the Sarbanes-Oxley Act, but went on to say,
[T]he Act is very much related to the U.S. legal environment and can
be seen as a reaction to mainly U.S. financial reporting problems. For
European companies and their auditors, many of the Sarbanes-Oxley
Act measures, especially as regards their details, are, in our opinion,
173. Roberta S. Karmel, NYSE-Euronext Merger: Rules to Stem Exit by Foreign Issuers, 236 N.Y.L.J. 3 (Aug. 17, 2006).
174. Id.
175. Paul S. Atkins, United States Securities and Exchange Commissioner, Remarks
Before the Association Française De Gouvernement D’enterprise (French Association of
Corporate Governance) (June 15, 2006).
176. Such as Enron, WorldCom, and Tyco International.
177. Irwin H. Steinhorn & William M. Lewis, Corporate Compliance Under the Regulations Implementing Sarbanes-Oxley, 60 CONSUMER FIN. L.Q. REP. 30, 30 (2006).
178. Id.
179. See generally Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745
(codified as amended in scattered sections of 15 U.S.C.); see also Steinhorn & Lewis,
supra note 177.
180. Letter from David Devlin, President, Fédération des Experts Comptables Européens (European Federation of Accountants) to Jonathan G. Katz, Secretary, U.S. Securities and Exchange Commission (Dec. 20, 2002) available at http://www.sec.gov/rules/
proposed/s70203/ddevlin1.htm (last visited Jan. 13, 2008).
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unnecessary, disproportionate, burdensome, or even impossible to apply.181
Compliance with Sarbanes-Oxley is very costly, especially to the
smaller corporation.182 Additionally, Sarbanes-Oxley, enacted hastily in
response to financial scandals, includes sections which apply to foreign
issuers without consideration as to whether it was appropriate to do so.183
Generally, foreign issuers can obtain exemptions from both stock exchange listing requirements and other governmental regulations,184 but
Sarbanes-Oxley does not make such an exception. Foreign issuer registrations and listings have declined in recent years as a result of SarbanesOxley. Because Sarbanes-Oxley imposes on companies much more demanding corporate governance standards than regulations in Europe, the
United States has lost a significant portion of initial public offerings to
foreign stock exchanges in the recent years since its passage.185 Such
trends could explain why the NYSE believed it was in their best interest
to merge with Euronext. However, the same facts explain the European
resistance to Sarbanes-Oxley and pre-merger resistance to NYSE Euronext Inc.
Despite this resistance, European securities regulations appear similar
to Sarbanes-Oxley in many respects. In 1999, the European Union completed the Financial Services Action Plan (“FSAP”), “an ambitious reform agenda . . . designed to provide the regulatory underpinning for a
single deep and liquid capital market . . . under harmonized rules.”186
181. Id.
182. See Nathan Wilda, David Pays for Goliath’s Mistakes: The Costly Effect Sarbanes-Oxley has on Small Companies, 38 J. MARSHALL L. REV. 671, 680 (2004) ( “Because the Act does not distinguish between large and small companies, the burden of
compliance is weighing very heavily on smaller firms.”).
183. Roberta S. Karmel, The Securities and Exchange Commission Goes Abroad to
Regulate Corporate Governance, 33 STETSON L. REV. 849, 887 (2004).
184. See ABA Report, supra note 11, at 1514–15.
185. Glauber, supra note 92. Sarbanes-Oxley is
so demanding, in fact, that most newly-listed, non-US public companies in the
last 18 months are listed on exchanges outside the United States. In 2000, preSarbanes-Oxley, about 47 percent of global IPO equity was raised on US exchanges. In 2005, post-Sarbanes-Oxley, that number was 5.7 percent. In 2000,
nine of the top ten worldwide IPOs registered on U.S. markets. In 2005, only
one of the top 24 did so.
Id. (citing NYSE Chairman Marshall Carter testimony to House Capital Markets Subcommittee. Apr. 26, 2006).
186. Niamh Moloney, Time to Take Stock on the Markets: The Financial Services
Action Plan Concludes as the Company Law Action Plan Rolls Out, 53 INT’L & COMP. L.
Q. 999, 999 (Oct. 2004).
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ARE SECURITIES REGULATORS PREPARED . . . ?
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FSAP has increasingly become more regulatory187 and reflects the policy
goals of E.U. securities laws to protect investors and assure proper functioning of the capital market.188 In many ways, after the U.S. passage of
Sarbanes-Oxley, foreign regulators such as the FSAP have begun “to put
in place their own corporate governance reforms in response to the scandals in the capital markets and Sarbanes-Oxley.”189
In May 2003, the European Commission presented another action plan
titled Modernising Company Law and Enhancing Corporate Governance
in the European Union — A Plan to Move Forward which calls for enhanced corporate governance standards.190 The plan’s initiatives include
requiring listed companies to submit an annual statement concerning internal corporate governance (or a code of ethics), promoting independence of directors, and calling for heightened transparency.191 Many parallels can be drawn between this action plan and recent U.S. legislation
such as Sarbanes-Oxley. Some have even suggested that Sarbanes-Oxley
did nothing more than codify what was already accepted as good corporate governance and practice.192 In fact, such parallels have been used to
argue a pattern of “foreign regulators’ responsive actions to impose some
of the same new standards” that the United States has imposed.193
Nevertheless, Sarbanes-Oxley and similar European regulations are not
quite the same. The United States regulators require a much higher standard of disclosure than do their European counterparts. Therefore, there
is an inherent conflict for companies that are traded in the United States
and European Union because, at least for companies foreign to the United States, meeting the home country requirements will not always satisfy
U.S. rules and regulations. Despite these differences in securities law, as
globalization moves forward and the publicly-held stock exchanges at187. Id.
188. Eric Engle, supra note 160, at 358.
189. Roberta S. Karmel, The Securities and Exchange Commission Goes Abroad to
Regulate Corporate Governance, supra note 183, at 887 (arguing for an overall pattern of
foreign jurisdictions first objecting to Sarbanes-Oxley and later initiating at least some
regulations following the new standards set forth under Sarbanes-Oxley).
190. Europa, Internal Market, Modernisation of Company Law and Enhancement of
Corporate Governance, http://ec.europa.eu./internal_market/company/modern/index_en.
htm (last visited Jan. 14, 2008).
191. See generally id.; Karmel, Securities and Exchange Commission Goes Abroad,
supra note 183, at 888.
192. Lawrence A. Cunningham, The Sarbanes-Oxley Yawn: Heavy Rhetoric, Light
Reform (and It Just Might Work), 35 CONN. L. REV. 915, 917–923 (2003); see also Karmel, Securities and Exchange Commission Goes Abroad, supra note 183, at 891.
193. Karmel, Securities and Exchange Commission Goes Abroad, supra note 183, at
891.
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tempt to maximize efficiency and profitability, the European Union and
United States will have to cooperate and attempt to work out such differences. As Securities and Exchange Commissioner Nazareth recognized,
attempting to harmonize international securities regulation “would not
succeed if a single regulatory authority or standard setter operated in isolation or tried to achieve convergence on a jurisdiction by jurisdiction
basis.”194
C. Existing International Regulatory Organizations and Cooperation
At a quick glance, E.U. and U.S. securities law appear relatively cooperative in past years and, at least on policies and overarching principles,
seem to agree on large-scale securities regulation issues.195 This is evidenced through cooperative dialogue for accomplishing international and
cross-border securities regulation, such as the Memorandum of Understanding between the SEC and the College of Euronext Regulators.196
The scope of regulatory cooperation goes well beyond that single agreement. For example, the SEC has an Office of International Affairs for the
promotion of international regulatory and enforcement cooperation.197
The United States’ Financial Accounting Standards Board and the International Accounting Standards Board are working together in an attempt
to converge two sets of accounting standards.198 In August 2006, the SEC
and the Committee of European Securities Regulators issued a joint work
plan which was a direct result of a December 2005 meeting between the
chairmen of each organization.199 In addition, the Securities and Ex194. Nazareth, supra note 48.
195. See generally Engle, supra note 160.
196. Memorandum of Understanding Concerning Consultation, Cooperation and the
Exchange of Information Related to Market Oversight (Jan. 25, 2007), available at
http://www.sec.com/news/press/2007/2007-8_mou.pdf.
197. The Office of International Affairs supports investor protection through international regulations and cooperation in the global capital market. It works to promote high
regulatory standards worldwide and to minimize the extent to which international borders
can be used to avoid regulatory compliance or escape detection. Securities and Exchange
Commission, Office of International Affairs, http://www.sec.gov/about/offices/oia.htm
(last visited Jan. 14, 2008).
198. Nazareth, supra note 48.
199. The main focus of the work plan was to apply internationally acceptable accounting standards to internationally active companies. Additionally, the two organizations
will “forge a closer dialogue” on disclosure and reporting standards. These organizations
would like to reduce or avoid conflicting regulatory decisions on the application of the
International Financial Reporting Standards and the U.S. Generally Accepted Accounting
Principles. See generally Press Release, Securities and Exchange Commission, SEC and
CESR Launch Work Plan Focused on Financial Reporting (2006), available at
http://www.sec.gov/news/press/2006/2006-130.htm.
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ARE SECURITIES REGULATORS PREPARED . . . ?
711
change Commission’s Consolidated Supervised Entity program and the
European Union’s Financial Conglomerates Directive have begun to
harmonize regulation in areas such as large global investment banks.200
Another example of cooperation is the International Corporate Governance Network (“ICGN”), which was formed in 1995 by a group of
institutional investors.201 The ICGN adopted corporate governance principles202 and many member institutional investors, such as pension funds,
have relied on these principles in internal formation.203 While the principles are sound guidelines, they have only been applied internally by institutional investor members and do not apply to the regulators themselves.204
Each country affected by the creation of NYSE Euronext Inc. also cooperates with each other through the to the Organization for Economic
Co-operation and Development (“OECD”).205 In 1999 and again in 2004,
the organization published the OECD Principles of Corporate Governance.206 The publication is simply a statement of the principles that
member states should follow to achieve good corporate governance standards and it is not binding on the member states. 207 The principles do not
suggest that any one form of governance is appropriate, but instead highlight similar underlying elements.208 The organization aims to lay down a
core set of guidelines governing the behavior of corporations in any mar-
200. Through these programs, the international financial institutions avoid considerable overlap and duplication that would otherwise result from business activity in varying
jurisdictions that regulate their activities. Nazareth, supra note 48.
201. International Corporate Governance Network [ICGN], The Development of the
Network, http://www.icgn.org/organisation/founder_members.php (last visited Jan. 14,
2008).
202. The principles adopted are very similar to those adopted by the Organization of
Economic Co-operation and Development discussed in the following paragraph.
203. See ICGN, ICGN Statement on Global Corporate Governance Principles (July 9,
1999), http://www.icgn.org/documents/globalcorpgov.htm (last visited Jan. 13, 2008).
204. Id.
205. Convention on the Organization for Economic Co-operation and Development,
Dec. 14, 1960, 12 U.S.T. 1728. Member countries include Australia, Austria, Belgium,
Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary,
Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Spain, the Slovak Republic, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. The Commission of the European
Communities takes part in the OECD. Id. art. 13.
206. Organization for Economic Co-operation and Development [OECD], OECD
Principles of Corporate Governance (2004), available at http://www.oecd.org/dataoecd/
32/18/31557724.pdf (last visited Jan. 13, 2008).
207. Id.
208. Id. at 13.
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ket economy.209 The first principle set forth is “Ensuring the Basis for an
Effective Corporate Governance Framework,” and it states that “[t]he
corporate governance framework should promote transparent and efficient markets, be consistent with the rule of law and clearly articulate the
division of responsibilities among different supervisory, regulatory and
enforcement authorities.”210 The principles were published before the
realization of a global stock exchange such as NYSE Euronext Inc.
However, the OECD recognized that, even on a domestic level, there are
often multiple legal domains acting on one regulated entity and it calls
for the need to limit overlaps and potential conflict.211
As for the national securities regulators affected by the NYSEEuronext merger, the United States’ Securities and Exchange Commission, France’s Autorité des Marchés Financiers, Belgium’s Banking, Finance, and Insurance Commission, the Netherlands Authority for the Financial Markets, Portugal’s Comissão do Mercado de Valores Mobiliários, and the United Kingdom’s Financial Services Authority all participate in the International Organization of Securities Commissions and
Similar Organizations (“IOSCO”).212 Moreover, commissioners from
securities regulation agencies of the United States, the United Kingdom,
France, and Belgium are members of IOSCO’s executive committee.213
IOSCO was formed in 1983 between North and South American securities regulatory agencies.214 European and Asian securities regulatory
agencies began to join in 1984, and “[t]oday IOSCO is recognized as the
international standard setter for securities markets.”215 Under the Pream209. Id.
The degree to which corporations observe basic principles of good corporate
governance is an increasingly important factor for investment decisions. Of
particular relevance is the relation between corporate governance practices and
the increasingly international character of investment. International flows of
capital enable companies to access financing from a much larger pool of investors. If countries are to reap the benefits of the global capital market, and if they
are to attract long-term “patient” capital, corporate governance arrangements
must be credible, well understood across borders and adhere to internationally
accepted principals.
Id.
210. Id. at 17.
211. Id. at 31.
212. OICV-IOSCO, IOSCO Membership and Committee Lists, available at
http://www.iosco.org/lists/display_members.cfm (last visited Jan. 14, 2008).
213. Id.
214. OICV-IOSCO, IOSCO Historical Background, available at http://www.iosco.org/
about/index.cfm?section=history (last visited Jan. 13, 2008).
215. Id.
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ARE SECURITIES REGULATORS PREPARED . . . ?
713
ble to IOSCO’s bylaws, these “[s]ecurities authorities resolve to cooperate together to ensure a better regulation of the markets, on the domestic
as well as on the international level, in order to maintain just, efficient
and sound markets.”216 IOSCO decided to undertake harmonization issues subsequent to its fourteenth annual conference in 1989 and has been
grappling with it ever since.217
Nevertheless, IOSCO has been called the most important of all organizations for influencing international securities regulations218 and in May
2003 the organization published the Objectives and Principles of Securities Regulation, which lays out thirty principles derived from three main
objectives for securities regulation.219 The three objectives are “the protection of investors,” “ensuring that markets are fair, efficient . . . transparent,” and “the reduction of systematic risk.”220 IOSCO recognizes the
trend towards global market places and the need for “increasing interdependence of regulators.”221 However, IOSCO does not have binding regulatory authority over its members, who have encountered many difficulties in coming to harmony.222 It follows, therefore, that if the best organization for influencing international securities regulations lacks binding
power over its members, there is actually an “absence of true ‘international securities regulation.’”223
IV. AN ALTERNATIVE APPROACH
While it remains true that IOSCO lacks binding powers over its members and enforcement mechanisms, it also remains true that IOSCO has
been the best organization for influencing international securities. Ideal
transnational regulation could be achieved by creating an organization
216. International Organization of Securities Commissions, Objectives and Principles
of Securities Regulation (May 2003) available at http://www.iosco.org/library/pub
docs/pdf/IOSCOPD154.pdf (last visited Jan. 13, 2008) [hereinafter IOSCO Principles].
217. Harold S. Bloomenthal & Samuel Wolff, INTERNATIONAL CAPITAL MARKETS AND
SECURITIES REGULATION § 1:74. See generally OCIV-IOSCO, About IOSCO,
http://www.iosco.org/about/ (last visited Jan. 14, 2008).
218. See Harold S. Bloomenthal & Samuel Wolff, supra note 217, § 1:73 (West
Group, 2006); Roberta S. Karmel, The IOSCO Venice Conference, N.Y.L.J. Oct. 19,
1989, 3 (“[IOSCO] is the most important of these organizations because its members
include the securities administrators of more than 50 countries. Further, its annual conference brings together both governmental securities regulators . . . as well as private-sector
observers with an interest in international securities regulation.”).
219. IOSCO Principles, supra note 216, at 1.
220. Id. at 5.
221. Id. at 2.
222. See Bloomenthal & Wolff, supra note 217, § 1:73.
223. Id.
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following IOSCO’s widely accepted foundations but giving that organization binding, self-regulatory powers over the transnational stock exchanges.224
A special study of the American Bar Association found that the United
States Congress may authorized a special self-regulating-type entity to
fill in what was then a void in the corporate governance process.225 The
entity proposed by the American Bar Association would be quasigovernmental in nature, but it would not be a complete substitute for
self-regulation by the stock exchanges themselves.226 As a slight variation to this suggestion, such a quasi-governmental entity could be created
on an international basis to converge separate national securities regulation regimes. This would remain a quasi-governmental agency, not a fullfledged governmental agency, because governmental bodies are not always best suited to make the same kinds of business decisions that are
involved in maintaining an international securities market.227
The new organization would, of course, require authorization through a
treaty or multiple treaties ratified by and binding upon each country.
Member countries would each send one person, qualified in the home
state for the role of a securities regulator, to the organization and each
224. There are many practical difficulties in obtaining consent from various nations.
By no means does this Note mean to suggest this alternative approach is easily accomplished. There are political obstacles that may not be overcome, and countries may not be
willing to relinquish monitoring powers over these exchanges. An example of a successful organization similar to the one this Note proposes is the World Trade Organization
(“WTO”).
Essentially, the WTO is a place where member governments go, to try to sort
out the trade problems they face with each other. The first step is to talk. The
WTO was born out of negotiations, and everything the WTO does is the result
of negotiations . . . .
...
At its heart are the WTO agreements, negotiated and signed by the bulk of the
world’s trading nations. These documents provide the legal ground-rules for international commerce. They are essentially contracts, binding governments to
keep their trade policies within agreed limits . . . .
World Trade Organization, Understanding the WTO 9 (World Trade Organization Information and Media Relations Department, Feb. 2007), available at http://www.wto.org/
english/thewto_e/whatis_e/tif_e/utw_chap1_e.pdf.
225. This study was conducted before the passage of Sarbanes-Oxley, yet many findings and suggestions are still relevant today. The report suggests that this SRO-type entity
be supervised by the SEC, which would not be applicable to an international organization
of the sort. ABA Report, supra note 11, at 1537–38.
226. Id.
227. See Poser, supra note 8, at 534.
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ARE SECURITIES REGULATORS PREPARED . . . ?
715
country would have a say in the operations and decisions of the organization. Any future transnational stock exchanges operating among countries party to the treaty would fall under the jurisdiction of this organization. New rules and regulations, binding on each member country, would
be generated through negotiations in which each country would have a
right to participate. Final rules would take the form of a treaty signed by
each member state. Major issues applying to a large number of exchanges may be resolved in treaties to which every member nation is
bound, and issues more specific to an individual stock exchange could be
resolved through treaties to which only affected member states are party.
During the negotiation process, each member country’s authority over
the process would be weighted according to the percentage of listed
companies operating within that country as compared to the overall
number of listed companies. As other exchanges become transnational
and fall under the organization’s authority, the weight due to each member state’s position may change, but matters previously decided will remain unaffected and will apply to these new exchanges equally, so long
as the exchanges affected lie within a previously bound member state.
The newly created organization would play more of a monitoring role.
Like IOSCO, it would produce and promote principles for corporate governance standards. However, these principles would be binding on the
stock exchanges. The stock exchanges themselves would be required to
issue listing requirements in accordance with these standards. The organization would have the power to approve or amend the rules as proposed by the stock exchange for implementation and enforcement upon
market participants. The stock exchanges would adhere to the principles,
but there would be enough flexibility for each exchange to take into account similarities and differences of each country in which they operate.
Since, as previously discussed, listing requirements by stock exchanges
themselves are an essential part of securing the integrity of the financial
markets, the exchanges themselves would remain the chief enforcement
mechanism. However, because of the problems with demutualization and
the conflicts of interest that have been created, this new entity is necessary to oversee the stock exchange listing requirements through formal
and binding approval processes for stock exchange implementation of
the organization’s rules and regulations.
CONCLUSION
Such an organization may not work in practical terms, at least with the
state of the world today. Neither the United States nor the European Union will look favorably on releasing control over regulation within their
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jurisdictions.228 However, this new organization would not require the
domestic governments to give up all regulatory powers. For example, the
SEC would still have jurisdiction over national exchanges remaining in
the United States. Additionally, each government could retain an appropriate amount of authority within the organization depending on the percentage of listed companies operating in each country. There is also the
possibility that binding principles may conflict with the domestic laws of
a member state governing domestic markets. Ideally any such conflicts
will be overcome by maintaining firm principles with flexible implementation by stock exchanges, allowing specific regulations to incorporate
domestic concerns.
Potential conflicts with domestic governmental agencies may become
even less important in light of the uncertainty as to what the role of government regulators should be in influencing the future structure of the
markets.229 The European Commission has not had much of an influence
over the development of the cross-border links of Euronext, nor has the
SEC influenced the creation of NYSE Euronext Inc. Consolidation is
driven by the exchanges themselves as they begin to seek more effective
and efficient ways to maximize profit.230 Therefore, it would make sense
to allow the driving force behind consolidation to take on the task of regulating such consolidated entities, but the stock exchanges cannot be
relied upon because of the conflicts inherent in these demutualized, forprofit entities.231
The fact of the matter is that stock exchanges are ready to become
transnational, but the world is not prepared to effectively regulate them.
Still, the more confidence investors have in the markets, the more likely
they are to provide capital to invest in companies.232 The world is moving towards a securities market system whereby a single investor sitting
anywhere in the world will be able to engage the purchase and sale of
securities anywhere else in the world. Having a uniform set of standards
under which that investor can do so would makes her more confident in
the system and more likely to contribute capital. To achieve these benefits, someone needs to assume the regulatory role.
IOSCO has attempted the closest and most successful regulators forays, but even actions taken by that organization are merely suggestions
and have no binding authority over its members. Consequently, the problem is how to enforce the accomplishments of IOSCO. There is no per228.
229.
230.
231.
232.
Poser, supra note 8, at 540.
Id.
See supra text accompanying notes 61–93.
See supra text accompanying notes 113–132.
Coffee, supra note 12, at 1829; ABA Report, supra note 11.
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ARE SECURITIES REGULATORS PREPARED . . . ?
717
fect solution to the lack of a sufficient regulatory body; however, an international organization with monitoring and enforcement powers could
fill the regulatory gaps by ensuring that the principles many countries
agree upon today are honestly implemented in the future.
Sara M. Saylor*
* B.A., New York University (2005); J.D., Brooklyn Law School (expected 2008). I
would like to thank the Brooklyn Law School Faculty for their helpful suggestions and
the editorial staff of the Brooklyn Journal of International Law for their help in preparing
this Note for publication. Any errors or omissions are my own.
THE U.S.-INDIA STRATEGIC NUCLEAR
PARTNERSHIP: A DEBILITATING BLOW TO
THE NON-PROLIFERATION REGIME
INTRODUCTION
I
n July of 2005, the United States and India announced their cooperative agreement on nuclear proliferation. Policy analysts see this development as a realpolitik move by the United States in balancing an
increasingly competitive China.1 As a legal matter, this agreement raises
compelling issues about the United States’ compliance with the 1968
Nuclear Non-Proliferation Treaty (“NPT”)2 and India’s status as a legally
“unrecognized” nuclear weapons state (“NWS”).3 Interestingly, by the
terms of the NPT and pursuant to statutory law of the United States,
“non-nuclear weapon states” as recipients of nuclear transfers need not
be parties to the NPT or other arms control agreements.4 Under U.S. law,
1. George Perkovich, Policy Outlook: Faulty Promises, Carnegie Endowment for
International Peace, Sept. 2005, at 1, available at http://www.carnegieendowment
.org/files/PO21.Perkovich.pdf.
2. Multilateral Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968,
21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter NPT]; see also United Nations [U.N.],
Treaty on the Non-Proliferation of Nuclear Weapons, http://www.un.org/Depts/dda
/WMD/treaty (last visited Mar. 10, 2008). The U.N. explains that:
[t]he NPT is a landmark international treaty whose objective is to prevent the
spread of nuclear weapons and weapons technology, to promote co-operation in
the peaceful uses of nuclear energy and to further the goal of achieving nuclear
disarmament and general and complete disarmament. The Treaty represents the
only binding commitment in a multilateral treaty to the goal of disarmament by
the nuclear-weapon States. Opened for signature in 1968, the Treaty entered
into force in 1970. A total of 187 parties have joined the Treaty, including the
five nuclear-weapon States. More countries have ratified the NPT than any
other arms limitation and disarmament agreement, a testament to the Treaty’s
significance.
Id.
3. Article IX of the NPT defines a nuclear weapon state (“NWS”) as one that had
“manufactured or exploded a nuclear weapon or other nuclear explosive device prior to
January 1, 1967.” NPT, supra note 2, 21 U.S.T. at 494, 729 U.N.T.S. at 172. India conducted a “peaceful” nuclear test in 1974. See infra notes 66–80 and accompanying text.
4. Article IV(1) of the NPT recognizes the “inalienable right of all Parties to the
Treaty to develop research, production and use of nuclear energy for peaceful purposes
without discrimination. . . .” The pertinent portion of paragraph 2 reads,
Parties to the Treaty in a position to do so shall also cooperate in contributing
alone or together with other States or international organizations to the further
development of the applications of nuclear energy for peaceful purposes, espe-
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pursuant to the Atomic Energy Act of 1954, the main requirement for
allowing nuclear exports is that the recipient state bring all its peaceful
nuclear activities under International Atomic Energy Agency (“IAEA”)
safeguards.5 Even this requirement can be waived by a presidential determination that adhering to the policy would be “seriously prejudicial to
achievement of United States non-proliferation objectives or otherwise
jeopardize the common defense and security.”6 India was a beneficiary of
this exemption in the past and the proposed U.S.-India nuclear cooperation agreement would, in effect, be a permanent exemption.7
Proponents of the agreement argue that it will enhance India’s compliance with non-proliferation in exchange for the promises of nuclear trade
liberalization between the two countries.8 Thus, the effects of this agree-
cially in the territories of non-nuclear-weapon States Party to the Treaty, with
due consideration for the needs of the developing world.
NPT, supra note 2, 21 U.S.T. at 491, 729 U.N.T.S. at 169 (emphasis added). This paragraph makes it clear that parties to the NPT can further nuclear development in non-party
states without violating the treaty particularly in light of the special allowance made for
non-NWS in the final clause. Id.
The United States echoes this policy in its statutory law. See Nuclear NonProliferation Act of 1978 § 203, 22 U.S.C. § 3243 (2006) (paragraph 1 expresses the need
to adopt principles and procedures in the event that a nation violates any “material obligation” with respect to the peaceful use of nuclear materials” and expressly distinguishes
NPT party states as a subset of those who would be eligible for peaceful use of nuclear
energy).
5. Atomic Energy Act of 1954, 42 U.S.C. § 2153 (2006) (allowing for cooperation
with “non-nuclear weapon states” provided that they maintain International Atomic Energy Agency (“IAEA”) safeguards, discussed infra, on all nuclear materials in all peaceful activities within their territory). The IAEA was established in 1957 amidst growing
fears of a global nuclear war and took root in President Eisenhower’s famous “Atoms for
Peace” speech. International Atomic Energy Agency [IAEA], About IAEA, http://
www.iaea.org/About/index.html (last visited Nov. 29, 2006). Currently, the IAEA promulgates standard “safeguards” that protect against the diversion of nuclear materials into
bomb-making uses:
The IAEA inspects nuclear and related facilities under safeguards agreements
with more than 140 States. Most agreements are with States that have internationally committed themselves not to possess nuclear weapons. They are concluded pursuant to the global Treaty on the Non-Proliferation of Nuclear
Weapons (NPT), for which the IAEA is the verification authority.
IAEA, Our Work, http://www.iaea.org/OurWork/SV/index.html (last visited Mar. 10,
2008).
6. 42 U.S.C. § 2153 (a)(9).
7. India’s past exemption is discussed infra in Part I.
8. Hearing on U.S.-India Civil Nuclear Cooperation Initiative: Prepared Remarks
before the S. Foreign Relations Comm., 109th Cong. (2005) (statement of Robert G. Jo-
2008]
U.S.-INDIA STRATEGIC NUCLEAR PARTNERSHIP
721
ment can be cast in a light that heralds the addition of a major nuclear
weapons state into the broader non-proliferation regime.9 Conversely, the
agreement can be construed as a threat to the already weak international
ordering of nuclear non-proliferation given that India is not a signatory to
the NPT and therefore does not bear the same international obligations
that were undertaken by the five recognized nuclear weapons states
(“NWS”).10
Part I of this Note will examine the terms of the India-U.S. nuclear deal
and consider potential obstacles to implementing the terms in light of
existing IAEA safeguards. The analysis will employ the theory of international regimes, which envisions states developing “shared expectations
of behavior” that lead to “consistent practices converging around specific
principles, norms, rules, and decision-making procedures.”11 Adopting
the regime theory as a model, this Note argues that India’s behavioral
patterns in the nuclear-proliferation arena have demonstrated its unwillingness to share in the principles embraced by the non-proliferation regime and therefore the U.S.-India agreement is a premature liberalization
of nuclear-trade when it is not remotely apparent that India intends to
commit itself to the ambitious goals of the NPT.
Second, because the agreement is a bilateral measure between India
and the United States that stands apart from the multilateral nonproliferation community, the enforceability of treaties and agreements
within that regime will become severely undermined if due care is not
taken to assure the remainder of states that those agreements still reflect
the policy goals common to the major NWS. Specifically, Part II will
emphasize the U.S. withdrawal from the Anti-Ballistic Missile Treaty
(“ABMT”) 12 and its failure to ratify the 1996 Comprehensive Test Ban
seph, Under Sec’y for Arms Control and Int’l Sec., Dep’t of State), available at http://
www.state.gov/t/us/rm/55968.htm.
9. “Most recognize the need to come to terms with India and not to allow it to remain completely outside the international non-proliferation system.” Id.
10. The big five NWS are: United States, Russia, United Kingdom, France, and
China. One such obligation common to all NWS is the cessation of production of fissile
materials (discussed infra) for weapons purposes. Perkovich, supra note 1, at 8.
11. Edward M. Smith, Understanding Dynamic Obligations: Arms Control Agreements, 64 S. CAL. L. REV. 1549, 1592 (1991) (discussing the utility of international regime theory and domestic relational theory to supplement existing consent-based rules
with the hope of understanding state compliance with/defection from evolving international obligations).
12. Treaty on the Limitation of Anti-Ballistic Missile Systems, U.S.-U.S.S.R., May
26, 1972, 23 U.S.T. 3435 [hereinafter ABMT] (bilateral treaty limiting the United States
and Soviet Union from employing missile defense systems that would spur on their offensive weapons race discussed in detail infra Part II).
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Treaty (“CTBT”).13 It will also highlight India’s conspicuous rejection of
all relevant multilateral nuclear arms instruments. In light of these two
behavioral patterns, the U.S.-India partnership is a stark rejection by both
states of international customary law that embraces the brokering of nuclear-weapons-free zones (“NWFZs”) and multi-lateral disarmament
measures.14 Part II of this Note will utilize Professor Thomas M.
Franck’s15 theory of legitimacy among nations to argue that the liberalization of nuclear trade between the two states has the potential to undermine the legitimacy of existing multilateral nuclear-weapons free zones
in two distinct ways: 1) by establishing a practice that is inconsistent
with and rationally unexceptionable from the customary practice of states
entering multilateral agreements on non-proliferation, hence undermining the regime’s coherence16 and 2) by contravening the expectations of
13. Comprehensive Test Ban Treaty, opened for signature Sept. 24, 1996, 35 I.L.M.
1439 [hereinafter CTBT] (multilateral treaty banning the testing of any nuclear explosive
device yet to enter into force due to its strict entry-into-force provision discussed in detail
infra Part II).
14. The nuclear-weapons-free zones (“NWFZs”) discussed in this Note are not representative of all such agreements now in existence. In addition to the 1968 Treaty for the
Prohibition of Nuclear Weapons In Latin America, opened for signature Feb. 14, 1967, 6
I.L.M. 521 [hereinafter Treaty of Tlatelolco] and the 1985 South Pacific Nuclear Free
Zone Treaty, opened for signature Aug. 6, 1985, 24 I.L.M. 1442 [hereinafter Treaty of
Rarotonga] (discussed in Part II infra), the following treaties have established NWFZs:
Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 1961 WL 62657 (U.S. is a party and has
ratified, India has acceded); Treaty on the Southeast Asia Nuclear Weapon-Free Zone,
opened for signature Dec. 15, 1995, 35 I.L.M. 635 (entered into force 1997 after ratifications by Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. The Protocol inviting a non-use promise of
nuclear weapons against states party to the treaty has not been signed or ratified by any of
the five official NWS); African Nuclear Weapons Free Zone Treaty, opened for signature
Apr. 11, 1996, 35 I.L.M. 698 (conducted under the auspices of the Organization of African Unity (“OAU”), this treaty will enter into force upon the deposit of the twenty-eighth
instrument). As of November 2005, there were twenty ratifications and the United States
has signed but not ratified the non-use Protocol. See List of Countries That Have Signed,
Ratified/Acceded to the African NWFZ Treaty, http://www.africaunion.org/Official_
documents/Treaties_%20Conventions_%20Protocols/List/Pelindaba%20Treaty.pdf (last
visited Mar. 10, 2008). For recent updates on the status of various NWFZs, see Agency
for the Prohibition of Nuclear Weapons in Latin America and the Caribbean,
http://www.opanal.org (last visited Mar. 10, 2008).
15. Thomas Franck is considered one of the leading scholars in international legal
theory and is a Murry and Ida Becker Professor of Law Emeritus at New York University. New York University Faculty Profiles, http://its.law.nyu.edu/faculty/profiles/
index.cfm?fuseaction=bio.main&personID=19925 (last visited Mar. 10, 2008).
16. “[W]hen states do not act consistently, no principle of general application appears
on the surface of what looks like an erratic pattern of conduct. States may thus conclude
that there is, and can be, no legitimate rule to command their adherence.” THOMAS M.
2008]
U.S.-INDIA STRATEGIC NUCLEAR PARTNERSHIP
723
states party to such agreements, bringing into question the determinacy
of rules that structure relationships between NPT and non-NPT signatories, and ultimately decreasing the non-proliferation regime’s “compliance-pull.”17
Third, the U.S.-India agreement must be read in the context of the yetto-be-resolved conflict between India and its bitter rival, Pakistan.18 In
the context of the current agreement, because Pakistan is likewise a nonsignatory of any international non-proliferation treaties and China is
widely recognized as having furthered proliferation in Pakistan, there is
no reason to believe that a similar cooperative agreement could not
emerge between Pakistan and China to balance the U.S-India alignment.19 Alternatively, even if such a formal agreement were implausible,
the very existence of a U.S.-India partnership gives Pakistan a substantial
incentive to surreptitiously pursue illicit proliferation measures to assuage its security concerns.20 This would certainly not be uncharacteristic
of Pakistani behavior in the realm of nu